Ashfaq Hussain and Azra Hussain v. Salin Bank & Trust Company and Indiana Department of Revenue

FILED
Feb 28 2020, 9:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE
Robert E. Duff Liberty L. Roberts
Fishers, Indiana Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ashfaq Hussain and Azra February 28, 2020
Hussain, Court of Appeals Case No.
Appellants-Defendants, 19A-MF-1786
Appeal from the Hamilton
v. Superior Court
The Honorable Jonathan M.
Salin Bank & Trust Company, Brown, Judge
Appellee-Plaintiff, Trial Court Cause No.
29D02-1203-MF-2759
and
Indiana Department of Revenue,
Defendant.
Altice, Judge.
Case Summary
[1] Ashfaq and Azra Hussain (the Hussains) appeal the trial court’s grant of
summary judgment in favor of Salin Bank and Trust Company (Salin), claiming
that genuine issues of material fact remain because an affidavit that Salin
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submitted as designated evidence was hearsay, and the trial court ignored an
affidavit that they had offered in response to Salin’s motion for summary
judgment. The Hussains further contend that the damage award for Salin was
error because the trial court based its decision on inadmissible hearsay
evidence.
[2] We affirm.
Facts and Procedural History
[3] On September 12, 2008, the Hussains borrowed $221,937.26 from Salin, signed
a note, and obtained a mortgage on certain real property in Noblesville to
secure the loan. The agreement required the Hussains to repay Salin the
original amount loaned with a regular interest rate of 7.75% and a default rate
of 12.75%, along with late fees and attorneys’ fees in accordance with the terms
and conditions of the note. The Hussains were required to make 180 payments
of $2,104.42 each month, with the first payment due on October 16, 2008. All
subsequent payments were due on the 15th of the month, with a final payment
due on September 15, 2023.
[4] At the loan closing, the Hussains tendered a check to Salin in the amount of
$565 that represented the fees associated with securing the loan. The account
had insufficient funds to cover the check and the check was returned to Salin.
In response, Salin charged the Hussains a $20 non-sufficient funds (NSF) fee
that it applied to the principal of the loan.
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[5] When the first payment of $2,104.42 became due in October, the Hussains paid
only $1,500. Salin charged the Hussains a late fee and another NSF fee
connected to that payment. Over the course of the next several years, the
Hussains made only partial payments and incurred late fees.
[6] On March 16, 2012, Salin filed a complaint on the note and to foreclose on the
mortgage, seeking judgment against the Hussains for the unpaid principal
balance due on the note with accrued interest, late charges, default-related
expenses, attorneys’ fees, costs, and other expenses incurred in the foreclosure
action. 1 The Hussains answered the complaint, admitting that they executed
the note but denied that Salin could foreclose on the mortgage.
[7] In December 2012, the Hussains filed for Chapter 13 Bankruptcy protection. 2
An arrearage account was created for the Hussains’ payments to the trustee as
part of the Bankruptcy plan. The plan provided for payments to the trustee and
directly to Salin for the estimated arrearage of $32,700. An amended plan was
created in December 2013 that provided for payment to the trustee and directly
to Salin for an estimated arrearage of $29,803 on the note.
1
Paragraph 24 of the complaint named the Indiana Department of Revenue (IDOR) as a defendant to assert
its interest in the real estate pursuant to a tax warrant that had been issued in the amount of $3,932.59. Salin
asserted that IDOR’s interest was “subordinate to and inferior to” its secured rights to the real estate.
Appellant’s Appendix Vol. II at 24. IDOR did not answer the complaint and is not a party to this appeal.
2
Three bankruptcy filings by Ashfaq Hussain and accompanying stays issued by the Bankruptcy Court
throughout this litigation have prolonged these proceedings.
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[8] The Hussains continued to make full or partial payments directly to Salin in
addition to the payments made on the arrearage account through the
Bankruptcy trustee until May 6, 2015. They stopped making direct payments to
Salin on November 27, 2015.
[9] On June 28, 2016, the Hussains’ Chapter 13 Bankruptcy was dismissed.
Litigation in this case resumed, and on August 4, 2016, Salin filed a motion for
summary judgment, claiming that the undisputed facts established that it was
entitled to judgment as a matter of law, and the property should be sold. In
support of its motion, Salin relied upon the note, mortgage, and an assignment
of rents that the Hussains had executed, the complaint and answer to the
complaint, a notice of default, a title search, an affidavit of attorneys’ fees and
the affidavit of John Frieburg as its designated evidence.
[10] The Hussains filed their response to the motion for summary judgment,
admitting that they executed the note and mortgage and had made payments on
the note. They argued, however, that Salin was not entitled to foreclosure
because the designated evidence showed that Salin had materially breached the
terms of the note before the Hussains had committed any breach. The Hussains
also alleged that Salin miscalculated the amount due on the note.
[11] In their response, the Hussains offered the following designated evidence to the
trial court: the affidavit of Marie McDonnell with supporting exhibits including
deposition testimony, payment history records, NSF fee information, and an
analysis of the Hussains’ payment history. McDonnell had been retained as the
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Hussains’ mortgage fraud and forensic analyst, who averred, among other
things, that Salin improperly administered the loan, that Salin’s accounting of
the Hussains’ payments was incorrect, and that its servicing of the loan
involved “unsound and unsafe” banking practices. Appendix Vol. III at 20-21.
McDonnell also stated that “on October 1, 2008, Bank One returned the check
for insufficient funds, and Salin charged Mr. Hussain a $20.00 NSF fee. On
October 2, 2008, Salin increased the principal balance by $20.00 for this
nonsufficient funds fee. . . . This increase in the principal balance amounts to a
unilateral, unauthorized alteration in the terms of the Note by Salin Bank.” Id.
at 16. Thus, the Hussains claimed that McDonnell’s affidavit raised a genuine
issue of material fact as to whether Salin initially breached the contract that
would extinguish the Hussains’ liability.
[12] The trial court rejected the Hussains’ first material breach argument and found
that they were liable on the note and mortgage. The trial court granted
summary judgment in Salin’s favor on the issue of liability but determined that
there were material facts in dispute as to the proper measure of damages.
[13] At the damages hearing that commenced on July 29, 2019, Ken Blough testified
for Salin. Blough is the vice president and a commercial loan officer who heads
the loan department at Horizon Bank (Horizon). Blough explained that
Horizon and Salin had merged and that Horizon is Salin’s successor. Blough
further testified that his job duties included handling commercial loans that
were struggling or in default, that he had personally handled the Hussains’ loan,
reviewed the note, mortgage, payment schedule, and payment records after the
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merger, and “ran an independent calculation of the amortization of the note
based on the payments made and the dates made.” Transcript Vol. II at 48.
Blough also explained that Salin’s documents became the documents of
Horizon and the Hussains’ loan was integrated into Horizon’s software systems
after the merger.
[14] Blough testified as to the summary of the damages that the bank sought under
the default terms of the loan and mortgage as set forth in one of Salin’s exhibits.
He also testified how Salin created a separate arrearage account as part of the
Hussains’ bankruptcy, and that payments from the trustee were applied to that
account. Blough explained that the principal balance remained under the
original account that had been set up for the Hussains to make payments.
[15] A different exhibit contained the amortization schedule that had previously
been provided and offered into evidence by the Hussains that revealed a
difference of approximately $2,800 from what was reflected in Salin’s records.
The exhibit also showed the interest that was due and had accrued since the last
payment, along with Salin’s costs in pursuing the foreclosure action.
[16] The Hussains objected to the exhibit on the basis of hearsay, arguing that
Blough was precluded from authenticating the records because he was
employed by Horizon rather than Salin. Salin responded that the business
records exception to the hearsay rule applied and pointed out that
notwithstanding its exhibits, the Hussains had already submitted the necessary
records into evidence for the calculation of damages, including the request for
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attorneys’ fees, the documents regarding summary judgment, and the records
relating to the collection of the loan.
[17] The trial court overruled the Hussains’ objections, finding that the documents
fell within the business records exception to the hearsay rule and were properly
authenticated. The Hussains presented no witnesses at the damages hearing.
After considering the evidence, the trial court entered damages for Salin in the
amount of $242,718.47. The Hussains now appeal.
Discussion and Decision
I. Standard of Review
[18] In an appeal from a grant of summary judgment, we stand in the shoes of the
trial court and apply a de novo standard of review. Poiry v. City of New Haven,
113 N.E.3d 1236, 1239 (Ind. Ct. App. 2018). Summary judgment is
appropriate where the designated evidence establishes that there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter
of law. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). We consider only
those materials properly designated pursuant to Ind. Trial Rule 56 and construe
all factual inferences and resolve all doubts in favor of the non-moving party.
Yung v. Hood’s Gardens, Inc. 24 N.E.3d 421, 424 (Ind. 2015). A trial court’s grant
of summary judgment is clothed with a presumption of validity, and the party
who lost in the trial court has the burden of demonstrating that the grant of
summary judgment was erroneous. Id. This court will affirm upon any theory
or basis supported by the designated evidence. Poiry, 113 N.E.3d at 1239-40.
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II. Mortgage Loan Defaults Generally
[19] We initially observe that the elements of a prima facie case for the foreclosure of
a mortgage are: (1) the existence of a demand note and the mortgage, and (2)
the mortgagor’s default. McEntee v. Wells Fargo Bank, N.A., 970 N.E.2d 178, 182
(Ind. Ct. App. 2012). Ind. Code § 32-30-10-3(a) provides that “if a mortgagor
defaults in the performance of any condition contained in a mortgage, the
mortgagee or the mortgagee’s assign may proceed . . . to foreclose the equity of
redemption contained in the mortgage.” To establish a prima facie case that it is
entitled to foreclose upon the mortgage, the mortgagee or its assign must enter
into evidence the demand note and the mortgage, and must prove the
mortgagor’s default. Creech v. LaPorte Prod. Credit Ass’n, 419 N.E.2d 1008, 1012
(Ind. Ct. App. 1981). Once the mortgagee establishes its prima facie case, the
burden shifts to the mortgagor to show that the note has been paid in full or to
establish any other defenses to the foreclosure. Id. 1012.
III. The Hussains’ Contentions
A. Frieburg’s Affidavit
[20] The Hussains claim that summary judgment was improperly granted for Salin
because Frieburg’s affidavit did not satisfy the admissibility requirements of
T.R. 56(E), as the affidavit was based on hearsay 3 and not on personal
3
Hearsay is an out of court assertion offered in court to prove the truth of the matter asserted. Ind. Evid.
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. Evid. Rule 802.
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knowledge. Thus, the Hussains assert that because Salin relied solely on this
affidavit to demonstrate the default, Salin failed to establish its prima facie case.
[21] T.R. 56(E) provides that
Supporting 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. Sworn or
certified copies not previously self-authenticated of all papers or
parts thereof referred to in an affidavit shall be attached thereto
or served therewith.
[22] When ruling on a summary judgment motion, the trial court will consider only
properly designated evidence that would be admissible at trial. D.H. by A.M.J.
v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App. 2018), trans. denied. Such
evidence does not include inadmissible hearsay contained in an affidavit. See
Holmes v. Nat’l Collegiate Student Loan Trust, 94 N.E.3d 722, 725 (Ind. Ct. App.
2018). Nor does it include unsworn statements or unverified exhibits.
Greenfield v. Arden Seven Penn Partners, L.P., 757 N.E.2d 699, 702 n.3 (Ind. Ct.
App. 2001), trans. denied. Although hearsay evidence is generally inadmissible,
Indiana Evid. Rule 803(6) provides for a business records exception to the
hearsay rule. To establish admissibility under this rule, the proponent of the
hearsay evidence must show that
(A) the record was made at or near the time by—or from
information transmitted—someone with knowledge;
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(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
Id.[23] In support of their claim that Frieburg’s affidavit failed to satisfy the
requirements of T.R. 56 (E), the Hussains point to this court’s opinions in
Zelman v. Capital One Bank (USA) N.A., 133 N.E.3d 244, 249 (Ind. Ct. App.
2019) and Seth v. Midland Funding, LLC, 997 N.E.2d 1139 (Ind. Ct. App. 2013)
that discussed the business records exception to the hearsay rule set forth in
Evid. R. 803(6).
[24] In Seth, the creditor brought an action against defendant Seth to recover the
balance due on a credit card. 997 N.E.2d at 1140. Midland Funding’s affidavit
of debt was signed by Degel, an employee of the creditor’s servicing agent.
Degel averred in her affidavit that she relied on transactions made by
companies other than the one for whom she worked and obtained her
information only from a review of unspecified business documents that were
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not attached to her affidavit. Id. The trial court granted summary judgment in
favor of Midland Funding. On appeal, we reversed and determined that
Degel’s status as an employee of the creditor’s servicing agent did not establish
that “she had personal knowledge of any of the facts pertaining to Midland’s
complaint against Seth.” Id. at 1142. Moreover, “Degel did not attach to her
affidavit any of the records upon which she purported to rely.” Id. Thus, we
concluded that Midland Funding failed to designate evidence to make a prima
facie case that it was entitled to summary judgment.
[25] In Zelman, the affiant was a “Litigation Support Representative” employed by
an agent and affiliate of Capitol One Bank. Id. at 48. The trial court admitted
the affidavit and granted summary judgment for Capitol One. On appeal, a
panel of this court reversed and found that the affidavit failed to designate
admissible evidence establishing that Zelman had opened a credit card account
with the bank or that Zelman owed the bank the amount that was sought in the
complaint. More particularly, we observed that
[N]either the “Customer Agreement” attached to Bank’s
complaint, nor Zelman’s purported credit card statements
attached to the summary judgment motion . . . were certified or
sworn; therefore, they were inadmissible hearsay and were not
proper Rule 56 evidence. . . .
Further, the Affidavit of Debt does not authenticate those
unsworn and unverified documents as records of regularly
conducted business activity pursuant to the hearsay exception
specified in Rule of Evidence 803(6). The affiant, a “Litigation
Support Representative” employed by Bank’s affiliate, stated that
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she had “access to” the Bank’s “relevant systems and documents
. . . needed to verify” the information in the affidavit, but never
states what those documents are. The affiant further states that
she has “personal knowledge of the manner and method by
which [Bank] creates and maintains certain business books and
records, including computer records of customer accounts.”
However, she does not identify the “books and records” to which
she refers. She also fails to identify the Customer Agreement
attached to the complaint as “the Customer Agreement
governing use of [Zelman’s] account,” or identify the Customer
Agreement or credit card statements in Exhibit B as “computer
records of customer accounts,” Similarly, the affiant refers to the
Bank “books and records reviewed,” but does not identify any
such documents.
Thus, the Affidavit of Debt did not lay a proper foundation to
authenticate the Customer Agreement or credit card statements
as business records admissible under Evidence Rule 803(6)’s
hearsay exception. . . .
[T]he affiant’s knowledge of the facts asserted in her affidavit “is
limited to what she has gleaned from her review of unspecified
business records,” and her affidavit is, therefore, based entirely
upon hearsay, in violation of Trial Rule 56(E). And the affiant’s
employment as a litigation support representative of Bank’s
affiliate does not, in itself, establish her personal knowledge of
any of the facts relating to the complaint. . . . In addition,
because the affiant explicitly states that her affidavit is based
upon her personal knowledge of facts obtained from Bank’s
business records, she was required to attach to, or submit with,
her affidavit sworn, certified, or self-authenticated copies of any
such records upon which she relied. . . . She did not attach to or
submit with her affidavit any such records, and her failure to do
so means we must disregard her affidavit. T.R. 56(E). . . .
Id. at 248-49 (some citations omitted).
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[26] Unlike the cases discussed above, Frieburg was not an employee of a third party
who had purchased the Hussains’ debt from Salin. He was an employee of
Horizon that had merged with Salin. Frieburg was the custodian of the records
for Salin, and the designated evidence established that he had acquired
knowledge of the Hussains’ debt by personally examining the business records
relating to their loan. Moreover, Frieburg did not refer to unspecified business
records as did the affiants did in Seth and Zelman. Instead, Frieburg’s affidavit
specifically identified the promissory note and mortgage to which he referred.
[27] Also, as the plain language of T.R. Rule 56(E) states, “[s]worn or certified
copies not previously self-authenticated of all papers or parts thereof referred to in
an affidavit shall be attached thereto or served therewith.” (Emphasis added).
In this case, the records referenced in Frieburg’s affidavit were already in the
record and authenticated. Frieburg specifically referred to the note and
mortgage that were attached to the complaint. The complaint contained true
and accurate copies of the note and mortgage executed by the Hussains, and
they admitted to such in their answer to the complaint. The Hussains also
submitted evidence of their payment history that showed their failure to comply
with the terms of the note. See Powell v. Am. Health Fitness Ctr. of Fort Wayne,
Inc., 694 N.E.2d 757, 759-60 (Ind. Ct. App. 1998) (observing that once evidence
has been designated to the trial court by one party, that evidence is deemed
designated and the opposing party need not designate the same evidence).
[28] Therefore, notwithstanding any alleged flaws in Frieburg’s affidavit, the
Hussains admitted that they executed the note and mortgage, along with their
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failure to pay. And that evidence was already before the court. The Hussains
further admitted that they made payments on the note and they submitted their
payment history as part of the designated evidence. That history demonstrated
that they had not made a payment since November 27, 2015, yet the note
required payments through September 16, 2023. That evidence was not
disputed, and it established all the required elements for a mortgage foreclosure.
For all these reasons, the trial court did not err in admitting Frieburg’s affidavit
into evidence.
B. McDonnell’s Affidavit
[29] The Hussains argue that the trial court’s grant of summary judgment for Salin
must be set aside because McDonnell’s affidavit presented a genuine issue of
material fact as to whether Salin was the first to breach the agreement. The
Hussains assert that Salin’s initial breach occurred when it added the twenty
dollar NSF fee to the principal due on the loan.
[30] The first material breach doctrine is described as follows:
When one party to a contract commits the first material breach of
that contract, it cannot seek to enforce the provisions of the
contract against the other party if that other party breaches the
contract at a later date. Licocci [v. Cardinal Assoc.], 492 N.E.2d
[48,] 52 [(Ind. Ct. App. 1986)]. Whether a party has materially
breached an agreement is a question of fact and is dependent upon
several factors including:
(a) The extent to which the injured party will obtain the
substantial benefit which he could have reasonably anticipated;
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(b) The extent to which the injured party may be adequately
compensated in damages for lack of complete performance;
(c) The extent to which the party failing to perform has already
partly performed or made preparations for performance;
(d) The greater or less hardship on the party failing to perform in
terminating the contract;
(e) The willful, negligent or innocent behavior of the party failing
to perform;
(f) The greater or less uncertainty that the party failing to perform
will perform the remainder of the contract.
Coates v. Heat Wagons, Inc., 942 N.E.2d 905, 917-18 (Ind. Ct. App. 2011)
(emphasis added); Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d 1042, 1048-49
(Ind. Ct. App. 2003).
[31] The sole evidence that the Hussains offered in support of their initial breach
argument is from McDonnell, their forensic analyst. McDonnell averred in her
affidavit that
On October 1, 2008, Bank One returned the check for insufficient
funds, and Salin charged Hussain a $20.00 NSF fee. On October
2, 2008, Salin increased the principal balance by $20.00 for this
nonsufficient funds fee. . . . This increase in the principal balance
amounts to a unilateral, unauthorized alteration in the terms of
the Note by Salin Bank.
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[32] Appendix Vol. III at 15. We note, however, that McDonnell failed to mention
the language contained in the note that provides, “payments are first to be applied
to any accrued unpaid interest, then to principal, and then to any unpaid collection
costs.” Appendix Vol. II at 26 (emphasis added). The note provides that
collection costs will be assessed to the Hussains and they do not dispute that the
NSF fee is a collection cost.
[33] Moreover, the designated evidence established that Salin performed its
obligation under the note and mortgage by providing the full amount of the
loan principal to the Hussains on September 12, 2008. The $20 NSF fee in no
way prevented the Hussains from obtaining the benefit of the loan. Moreover,
the designated evidence established that the Hussains breached the terms of the
loan on October 16, 2008 when they failed to make the initial payment. There
is no evidence that Salin committed a material breach of the loan prior to that
time. Thus, we conclude that the trial court correctly determined that the
designated evidence established that Salin did not initially breach the terms of
the note as a matter of law, and that Salin was not precluded from foreclosing
on the property.
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C. Damages
[34] The Hussains next argue that the damage award must be set aside because the
forty-one page exhibit that Salin offered into evidence regarding damages 4 was
hearsay. The Hussains maintain that Blough, who testified on Salin’s behalf,
lacked the knowledge to lay an adequate foundation for the admissibility of the
documents under the business records exception to the hearsay rule.
[35] Under the business records exception, “a person who has a familiarity with the
records may provide a proper business records exception foundation even if he
or she is not the entrant or his or her official supervisor.” Payne v. State, 658
N.E.2d 635, 645 (Ind. Ct. App. 1995), trans. denied. To obtain admission under
the business records exception, the proponent of an exhibit need only call an
individual who has a functional understanding of the business’s record-keeping
process. Id. This could be the entrant, the entrant’s supervisor, co-workers, a
records custodian or any other such person. Id.[36] The Hussains challenge Blough’s testimony because he worked for Horizon—
Salin’s predecessor—and not directly for Salin. Accordingly, the Hussains
argue that Blough was not qualified to lay the foundation for the admission of
the documents. In support of their contention, the Hussains direct us to
Williams v. Unifund CCR, LLC, 70 N.E.3d 375 (Ind. Ct. App. 2017) and Holmes.
4
This exhibit was comprised of an itemization of damages, loan history printouts, appraisal reports, invoices
for a title search, professional consulting fees, and affidavits for attorneys’ fees.
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In Williams, the defendant opened a credit card with Citibank and had
accumulated a debt in the amount of $10,402.90. Id. at 377. Citibank sold a
block of charged-off accounts, including Williams’s account to Pilot, who in
turn assigned the account to Unifund. Williams’s account was transferred in a
“large Excel file, which can contain anywhere from one to several thousand
credit card accounts all displayed as a single line in that Excel spreadsheet.” Id.
The information listed on the spreadsheet that Citibank provided to Pilot
included the account number, the date of the last payment, the account holder’s
name and social security number. Thereafter, Unifund Partners sold its
receivables to Unifund, a debt-buying company. Id.
[37] Unifund filed a complaint against Williams alleging, among other things,
breach of contract and unjust enrichment. At trial, Unifund offered testimony
from an individual described as “Unifund’s authorized representative and
custodian of the records.” Id. at 379. The witness testified that he was familiar
with the standard business practices of Unifund, but was unfamiliar with
Citibank’s records or operations, records or bookkeeping methods, accounting
methods, or regular business practices. Id. The trial court admitted these
exhibits and ultimately entered judgment for Unifund. On appeal, this court
reversed and held that because the testifying witness for Unifund lacked
knowledge of Citibank’s regularly conducted business activities and record
keeping, he could not lay a foundation for the admission of the exhibit under
the business records exception. Id.
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[38] In Holmes, the plaintiff co-signed a loan and credit agreement with Charter One
Bank (Charter One). 94 N.E.3d at 723. Thereafter, Charter One sold a pool of
student loans to NCSLT. NCSLT filed a complaint against Holmes to collect
the loan balance and accrued interest. NCSLT filed a motion for summary
judgment and designated the affidavit of Jefferis, an employee of Transworld
Systems, Inc., NCSLT’s servicer, in support of its motion for summary
judgment. Id. at 724. Jefferis averred in her affidavit that she was the
designated custodian of records for Transworld, was familiar with the process
by which it received prior account records, and that it was Transworld’s
regularly-conducted business practice to incorporate prior loan records into its
own business records. Id. The trial court entered summary judgment for
NCSLT.
[39] On appeal, a panel of this court reversed and held that
[T]he 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
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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), 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. . . . 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.
Id. at 725-26.
[40] Unlike the circumstances in these two cases where the witnesses were
attempting to lay a foundation for the records of another business that had sold
its accounts, Blough was testifying on behalf of a company for whom he
worked that had merged with another. As Salin no longer exists, Horizon is
vested with all the rights, duties and records that previously were Salin’s. See
Markham v. Prutsman Mirror Co., 565 N.E.2d 385, 386 (Ind. Ct. App. 1991)
(observing that a successor corporation generally becomes vested with rights
and assumes the burdens of the first corporation).
[41] In this case, the evidence established that the Hussains’ loan was integrated into
Horizon’s software systems, and Blough testified that he had personal
knowledge of those systems and the documents in the exhibit that established
the payoff amount of the loans. Blough’s duties included handling commercial
loans that were struggling or in default, and the Hussains’ loan was one of
those. Blough personally handled the Hussains’ loan from the time of the
merger in April of 2019, and had reviewed the note, mortgage, financial
Court of Appeals of Indiana | Opinion 19A-MF-1786 | February 28, 2020 Page 20 of 22
records, and payment schedule. Blough acknowledged that all of those
documents were records that the bank regularly maintained for loans, are
business records upon which the bank relies, and that he is the custodian of
those records. Blough also explained that he personally “[ran] the numbers
based upon the payments that were made on [the Hussains’] loan” and
determined that “the amount due was consistent with what was reflected in the
bank’s documents.” Transcript Vol. II at 46, 48. In light of these circumstances,
we agree with the trial court that Blough laid the proper foundation for the
admission of these documents under the business exception to the hearsay rule.
[42] Notwithstanding these exhibits and Blough’s testimony, we also note that the
Hussains’ payment history was attached to McDonnell’s affidavit as part of
their designated evidence. Inasmuch as these records that included an
amortization of the payments were already made a part of the record, the
Hussains cannot be heard to complain that the trial court erred in admitting
those documents. See, e.g., AutoXchange.com v. Dreyer & Reinbold, Inc., 816
N.E.2d 40, 46 (Ind. Ct. App. 2004), (observing that because the appellants had
submitted a copy of a check as part of its own designated evidence, they were
prohibited from objecting to the admission of that evidence), trans. denied. For
all these reasons, we conclude that the trial court did not abuse its discretion in
admitting the documents into evidence. Thus, summary judgment was
properly entered for Salin and the damage award stands.
[43] Judgment affirmed.
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Robb, J. and Bradford, C.J., concur.
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