Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 1 of 7

MEMORANDUM DECISION 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case. 

APPELLANT PRO SE

Jose Menendez 

Fishers, Indiana 

ATTORNEYS FOR APPELLEE

Greg Taylor 

Megan Urban 

Jason Taylor 

Taylor Law, PLLC 

Louisville, Kentucky 

IN THE 

COURT OF APPEALS OF INDIANA

Jose Menendez, 

Appellant-Defendant, 

v. 

CACH, LLC, 

Appellee-Plaintiff.

August 23, 2016

Court of Appeals Case No. 

29A02-1511-CC-2026 

Appeal from the Hamilton 

Superior Court 

The Honorable David K. Najjar, 

Magistrate 

The Honorable Steven R. Nation, 

Judge 

Trial Court Cause No. 

29D01-1407-CC-6967 

Vaidik, Chief Judge. 
Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 2 of 7

Case Summary 

[1] Jose Menendez appeals the trial court’s grant of summary judgment in favor of 

CACH, LLC on its complaint for collection of credit-card debt. CACH alleged 

that Menendez owed $13,815.13 to Bank of America and that CACH was the 

assignee of that debt. Menendez, pro se, contends that the evidence CACH 

designated to prove that he owed $13,815.13 was inadmissible and, therefore, 

should not have been considered by the trial court at summary judgment. We 

agree. Among other things, CACH attempted to use the affidavit of its own 

employee to provide an evidentiary foundation for admitting records prepared 

by Bank of America. However, a witness cannot lay the proper foundation to 

admit the records of a business other than his or her own employer because he 

or she will lack the personal knowledge required to ensure reliability. We 

therefore reverse the trial court’s grant of summary judgment in favor of CACH 

and remand for further proceedings. 

Facts and Procedural History 

[2] On July 21, 2014, CACH filed a complaint against Menendez alleging that 

Menendez had defaulted on $13,815.13 in credit-card debt owed to MBNA 

America, N.A.,1

 that CACH was the assignee of the debt, and that CACH was 

 

1

 Menendez opened the credit card with MBNA. MBNA became FIA Card Services, N.A. FIA Card 

Services merged into BANA, which is a wholly-owned subsidiary of Bank of America. As a result of the 

name changes and mergers, different documents refer to MBNA, FIA, BANA, and Bank of America. We 
Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 3 of 7

entitled to judgment for $13,815.13. CACH also sought judgment for interest 

and costs. 

[3] In February 2015, CACH moved for summary judgment. CACH designated as 

evidence several credit-card statements for Menendez; the bill of sale and 

assignment of loans that transferred ownership of multiple loans to CACH; 

“Schedule 1,” which is a printout of a portion of the record supplied to CACH 

by Bank of America that contains Menendez’s credit-card information, 

including his name, address, social-security number, and balance due; and an 

affidavit. The affidavit CACH submitted was executed by Signe Espinoza, an 

agent and records custodian for CACH, and it provides, in pertinent part: 

1. I have reviewed the books and records of Plaintiff and am 

familiar with the account of JOSE M MENENDEZ (the 

“Defendant”). Plaintiff’s books and records contain account 

records and information of the account referenced below 

provided to Plaintiff by the Original Creditor referenced below or 

its assignee. The records are kept in the ordinary course of a 

regularly conducted business activity and are made either by a 

person having personal knowledge of the information contained 

therein or based on information conveyed by a person having 

personal knowledge of the information contained therein, and I 

know from my experience in reviewing such records and from 

common knowledge of how credit cards work that those records 

are made and maintained by individuals who have a business 

duty to make entries in the records accurately at or near the time 

of the event that they record. 

 

will use the names MBNA and Bank of America throughout the opinion, but there is only one credit card—

the multiple bank names are merely the result of transfers in ownership. 
Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 4 of 7

* * * * * 

3. The business records furnished to Plaintiff show that 

Defendant opened a credit card account with [Bank of America] 

(“Original Creditor”) bearing account number XXXX-XXXXXXXX-9092 (the “Account”). The last payment was posted to 

the account on April 25, 2011 in the amount of $25.00. 

* * * * * 

7. There is now due and payable from the Defendant the sum of 

$13,815.13 in addition to costs. 

[4] In his summary judgment response and at the summary judgment hearing, 

Menendez argued that the evidence CACH designated would not be admissible 

at trial and, therefore, should not be considered at summary judgment. After 

oral argument, the trial court entered summary judgment for CACH. 

Menendez now appeals. 

Discussion and Decision 

[5] Menendez contends that the trial court erred in granting summary judgment to 

CACH. We review an order granting summary judgment de novo. Williams v. 

Tharp, 914 N.E.2d 756, 761 (Ind. 2009). Summary judgment is appropriate if 

there is no genuine issue as to any material fact and the moving party is entitled 

to a judgment as a matter of law. Ind. Trial Rule 56(C). The party moving for 

summary judgment bears the burden of making a prima facie showing that it is 

appropriate. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 

(Ind. 2009).
Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 5 of 7

[6] In this case, CACH needed to show that (1) Menendez owed $13,815.13 to 

Bank of America and (2) CACH was the assignee of that debt. See Seth v. 

Midland Funding, LLC, 997 N.E.2d 1139, 1140 (Ind. Ct. App. 2013). The 

dispositive issue in this case is whether CACH designated sufficient evidence to 

show the first element, that is, whether Menendez owed Bank of America 

$13,815.13. CACH designated three pieces of evidence to prove this element: 

(1) credit-card statements, (2) Schedule 1, and (3) Espinoza’s affidavit.

[7] Menendez, however, argues that these three pieces of evidence would not have 

been admissible at trial; therefore, the trial court’s grant of summary judgment 

was improper. We agree. In ruling on a motion for summary judgment, the 

trial court will consider only properly designated evidence that would be 

admissible at trial. Kronmiller v. Wangberg, 665 N.E.2d 624, 627 (Ind. Ct. App. 

1996), trans. denied. Unsworn statements and unverified exhibits do not qualify 

as proper Rule 56 evidence. Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge, 

Inc., 973 N.E.2d 1179, 1182 (Ind. Ct. App. 2012), trans. denied.

[8] The first two pieces of evidence, the credit-card statements and Schedule 1, 

were unsworn and unverified records prepared by Bank of America. In order to 

admit these two pieces of evidence as business records at trial, CACH would 

have needed an affidavit or testimony from a Bank of America employee stating 

that the records were prepared at or near the time of the transactions by, or 

from information transmitted by, someone with knowledge of the transaction; 

that the records were kept in the course of a regularly conducted activity of the 
Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 6 of 7

business; and that making the records was a regular practice of that activity.2

 

See Ind. Evidence Rule 803(6). The affidavit of CACH’s own employee would 

have been insufficient to admit the credit-card statements or Schedule 1 at trial. 

Speybroeck v. State, 875 N.E.2d 813, 821 (Ind. Ct. App. 2007) (“a 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”). 

[9] The Espinoza affidavit would also have been inadmissible at trial for the 

purpose of establishing the debt Menendez owed to Bank of America. Indiana 

Trial Rule 56(E) requires that “[s]upporting and opposing affidavits 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 T.R. 56(E) are mandatory. 

City of Gary v. McCrady, 851 N.E.2d 359, 363 (Ind. Ct. App. 2006). A court 

considering a motion for summary judgment must disregard information 

contained in supporting or opposing affidavits that would not be admissible at 

trial. See id. Nothing in the record establishes that Espinoza had personal 

knowledge of the transactions between Menendez and Bank of America. 

Espinoza’s affidavit is based on her reading of what Bank of America’s records 

 

2

 CACH included an affidavit from a Bank of America employee in the Appellee’s Appendix. However, 

according to CACH’s response to Menendez’s motion to strike this affidavit, it was not designated to the trial 

court. We do not consider evidence on appeal that was not properly designated to the trial court. P.R. 

Mallory & Co. v. Am. Cas. Co. of Reading, Pa., 920 N.E.2d 736, 755 (Ind. Ct. App. 2010), trans. denied. 
Court of Appeals of Indiana | Memorandum Decision 29A02-1511-CC-2026| August 23, 2016 Page 7 of 7

indicate, not her personal knowledge. Appellee’s App. p. 53. Therefore, to the 

extent that Espinoza’s affidavit must be relied upon to establish Menendez’s 

underlying debt to Bank of America, it would be inadmissible at trial.3

 

[10] There being no properly designated evidence that would be admissible at trial to 

prove that Menendez owed the original credit-card debt of $13,815.13, CACH 

was not entitled to summary judgment. 

[11] We reverse and remand for further proceedings. 

Baker, J., and Najam, J., concur. 

 

3

 CACH asserts that Espinoza’s affidavit is admissible to prove the original debt because “the Plaintiff has 

integrated the original creditor’s record into its own and relies on it in collecting the debt.” Appellee’s Br. p. 

13. CACH provides no citation for this assertion. It is well settled that we will not consider an assertion on 

appeal when the party has not presented a cogent argument supported by authority and references to the 

record as required by the rules. Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). We are aware 

that some federal circuits have allowed authentication of third-party business records under Federal Rule of 

Evidence 803(6). However, CACH does not argue that Indiana Rule of Evidence 803(6) should be 

interpreted the same way or that Espinoza’s affidavit would be sufficient if we did adopt this interpretation of 

the rule.