Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 1 of 7

ATTORNEY FOR APPELLANT

Thomas G. Bradburn

Bradburn Law Firm

Noblesville, Indiana 

ATTORNEYS FOR APPELLEE

Seth Row

Daniel Bogatz

Javitch Block LLC

Cleveland, Ohio

I N T H E

COURT OF APPEALS OF INDIANA

Alexander Holmes,

Appellant-Defendant,

v.

National Collegiate Student 

Loan Trust,

Appellee-Plaintiff

February 27, 2018

Court of Appeals Case No.

87A05-1711-CC-2517

Appeal from the Warrick Superior 

Court

The Honorable Robert R. 

Aylsworth, Judge

Trial Court Cause No.

87D02-1608-CC-987

Crone, Judge.
Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 2 of 7

Case Summary

[1] Alexander Holmes appeals the trial court’s entry of summary judgment in favor 

of National Collegiate Student Loan Trust (“NCSLT”). Concluding that 

Holmes has met his burden to persuade us that the grant of summary judgment 

was erroneous, we reverse and remand.

Facts and Procedural History

[2] On November 30, 2006, Holmes cosigned a Loan Request/Credit Agreement 

with Charter One Bank on behalf of his son, Nicholas Holmes. The loan was 

an education loan for Nicholas to attend the University of Southern Indiana 

from August 2006 through May 2007. In March 2007, Charter One Bank sold 

a pool of student loans to National Collegiate Funding LLC, which in turn sold 

the loans to NCSLT. This pool of loans allegedly contained Holmes’s specific 

loan account.

[3] On August 15, 2016, NCSLT filed a complaint against Holmes alleging that it 

was the owner of Holmes’s account and that Holmes owed $16,578.60 plus 

accrued interest. Holmes filed his answer and affirmative defenses, including 

the defense that NCSLT lacked standing to bring its claim. 

[4] On March 22, 2017, NCSLT filed a motion for summary judgment and 

designation of evidence. In response, Holmes asserted that NCSLT failed to 

prove that it owned his account and further that much of NCSLT’s designated 

evidence was inadmissible pursuant to Indiana Trial Rule 56(E). Following a 

hearing, the trial court entered summary judgment in favor of NCSLT. The 
Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 3 of 7

court ordered Holmes to pay NCSLT $18,183.26 plus interest and costs. 

Holmes filed a motion to correct error, which the trial court denied. This appeal 

ensued.

Discussion and Decision

[5] Holmes appeals the trial court’s entry of summary judgment in favor of 

NCSLT. Summary judgment is appropriate only when there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of 

law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009). “The party moving for 

summary judgment has the burden of making a prima facie showing that there 

is no genuine issue of material fact and that the moving party is entitled to 

judgment as a matter of law.” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 

N.E.3d 384, 386 (Ind. 2016). Once that showing is made, the burden shifts to 

the nonmovant to come forward with contrary evidence showing the existence 

of an issue for the trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 

2014). In determining whether the moving party is entitled to summary 

judgment, “[w]e consider only those materials properly designated pursuant to 

Trial Rule 56 and construe all factual inferences and resolve all doubts ... in 

favor of the non-moving party.” Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 

424 (Ind. 2015). 

[6] Holmes contends that NCSLT has failed to establish the absence of a genuine 

issue of material fact. Particularly, Holmes argues that much of NCSLT’s 

designated evidence is inadmissible hearsay, and thus the evidence presented is 
Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 4 of 7

insufficient to make a prima facie showing that NCSLT is entitled to summary 

judgment on its claim against Holmes. We agree.

[7] To make its prima facie case in support of summary judgment, NCSLT was 

required to show that Holmes executed a contract for the student loan with 

Charter One Bank, that NCSLT was the assignee and is now the owner of that 

debt, and that Holmes owed the original lender, Charter One Bank, the amount 

alleged. See Seth v. Midland Funding, LLC, 997 N.E.2d 1139, 1140 (Ind. Ct. 

App. 2013) (discussing designated evidence necessary to make prima facie case 

in support of summary judgment in favor of creditor claiming breach of credit 

card contract). In support of summary judgment, NCSLT designated the 

affidavit of Jacqueline Jefferis, an employee of Transworld Systems, Inc. 

(“TSI”), the loan subservicer for U.S. Bank, National Association, the “Special 

Servicer” of NCSLT. Appellant’s App. Vol. 2 at 14. Jefferis stated that she was 

the “designated custodian of records” for TSI. She stated that she was “familiar 

with the process by which TSI received prior account records,” that it was 

“TSI’s regularly-conducted business practice to incorporate prior loan records

... into TSI’s business records,” and therefore she was competent and 

authorized to testify regarding Holmes’s specific loan and “the business records 

attached” to the affidavit. Id. The purpose of the Jefferis affidavit was to 

authenticate and lay the foundation for the admissibility of several attached

documents, the most relevant for our review being the loan contract between 

Holmes and Charter One Bank, and the schedule of pooled loans transferred 
Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 5 of 7

from Charter One Bank to National Collegiate Funding LLC, before then being 

sold and assigned to NCSLT.

1

 

[8] Indiana Trial Rule 56(E) provides that supporting and opposing affidavits on 

summary judgment “shall be made on personal knowledge, shall set forth such 

facts as would be admissible in evidence, and shall show affirmatively that the 

affiant is competent to testify to the matters stated therein.” The requirements 

of Trial Rule 56(E) are mandatory, and a court considering a motion for 

summary judgment should disregard inadmissible information contained in 

supporting or opposing affidavits. Seth, 997 N.E.2d at 1143. Inadmissible 

hearsay contained in an affidavit may not be considered in ruling on a motion 

for summary judgment. Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. 

App. 2007), trans. denied (2008).

[9] NCSLT admits that the Jefferis affidavit and supporting documents are

hearsay.2 However, NCSLT argues that the material offered is admissible 

because it falls within the business records exception to the hearsay rule.

Specifically, Indiana Evidence Rule 803(6) provides that records of a regularly 

conducted business activity are not excluded by the rule against hearsay if: the 

record was made at or near the time by—or from information transmitted by—

 

1 The additional attached documents included computer printouts of the loan financial activity, a 

deferment/forbearance summary, the loan repayment schedule, and the loan payment history report. 

2 Hearsay is an out of court assertion offered in court to prove the truth of the matter asserted. Ind. Evidence 

Rule 801(c). Absent an exception to the rule, hearsay is inadmissible as evidence. In re E.T., 808 N.E.2d 639, 

641 (Ind. 2004); Ind. Evidence Rule 802.
Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 6 of 7

someone with knowledge; the record was kept in the course of a regularly 

conducted activity of a business; making the record was a regular practice of 

that activity; all these conditions are shown by the testimony of the custodian or 

another qualified witness; and neither the source of information nor the method 

or circumstances of preparation indicate a lack of trustworthiness. To ensure 

reliability, the proponent of a business record must authenticate it, and 

Evidence Rule 803(6) permits authentication by affidavit. Speybroeck v. State, 

875 N.E.2d 813, 819 (Ind. Ct. App. 2007). As an exception to the hearsay rule, 

the business record exception must be strictly construed. Id.

[10] Here, the Jefferis affidavit provided no testimony to support the admission of 

the contract between Holmes and Charter One Bank or the schedule of pooled 

loans sold and assigned to National Collegiate Funding, LLC, and then to 

NCSLT, as business records pursuant to Evidence Rule 803(6). There was no 

testimony to indicate that Jefferis was familiar with or had personal knowledge 

of the regular business practices or record keeping of Charter One Bank, the 

loan originator, or that of NCSLT regarding the transfer of pooled loans, such 

that she could testify as to the reliability and authenticity of those documents. 

Indeed, Jefferis offered no evidence to indicate that those records were made at 

or near the time of the business activities in question by someone with 

knowledge, that the records were kept in the course of the regularly conducted 

activities of either Charter One or NCSLT, and that making the records was 

part of the regularly conducted business activities of those third-party 

businesses. In Speybroeck, this Court stated that, pursuant to Trial Rule 803(6), 
Court of Appeals of Indiana | Opinion 87A05-1711-CC-2517 | February 27, 2018 Page 7 of 7

one business “could not lay the proper foundation to admit the records of 

another business because the requesting business lacked the personal knowledge 

required to ensure reliability.” Id. at 821; accord Williams v. Unifund CCR, LLC, 

70 N.E.3d 375, 379 (Ind. Ct. App. 2017) (affiant from one business who did not 

have personal knowledge of another business’s regularly conducted business 

activities could not lay foundation for admission of exhibit).

3

 Because the

Jefferis affidavit is insufficient to support the admission of two of the business 

records necessary for NCSLT to establish its prima facie case, summary 

judgment is inappropriate. 

[11] Under the circumstances, we conclude that NCSLT has failed to make a prima 

facie case in support of summary judgment. Accordingly, we reverse and 

remand for further proceedings.

[12] Reversed and remanded.

Robb, J., and Bradford, J., concur.

 

3 NCSLT argues that some federal circuit courts have allowed authentication of third-party business records 

pursuant to Federal Rule of Evidence 803(6), but Indiana courts have not applied Indiana Evidence Rule 

803(6) in the same way. This would not be the only point regarding hearsay evidence upon which we diverge 

from our federal counterparts. Indiana has also never adopted a residual exception like Federal Rule of 

Evidence 807, which allows trial judges to exercise discretion to admit certain hearsay evidence. VanPatten v. 

State, 986 N.E.2d 255, 269 (Ind. 2013) (Massa, J., concurring in result).