John W. Mitchell v. American Acceptance Co., LLC, as Assignee of Chase Bank USA, N.A. ( 2012 )


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  •  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:                                   ATTORNEYS FOR APPELLEE:
    
    JOHN W. MITCHELL                                    GLENN S. VICIAN
    Fort Wayne, Indiana                                 CHRISTOPHER MANHART
                                                        Bowman, Heintz, Boscia & Vician, P.C.
                                                        Merrillville, Indiana
    
    
    
                                                                                  FILED
                                                                               May 24 2012, 9:36 am
    
    
                                                                                       CLERK
                                   IN THE                                            of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court
    
    
                         COURT OF APPEALS OF INDIANA
    
    JOHN W. MITCHELL,                                   )
                                                        )
           Appellant-Defendant,                         )
                                                        )
                   vs.                                  )     No. 02A03-1108-CC-366
                                                        )
    AMERICAN ACCEPTANCE CO., LLC as                     )
    Assignee of Chase Bank USA, N.A.,                   )
                                                        )
           Appellee-Plaintiff.                          )
    
    
                           APPEAL FROM THE ALLEN CIRCUIT COURT
                           The Honorable Kenneth R. Scheibenberger, Judge
                                  Cause No. 02C01-1011-CC-1077
    
    
    
                                               May 24, 2012
    
    
                    MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    
    CRONE, Judge
                                          Case Summary
    
           John W. Mitchell appeals the trial court’s grant of the summary judgment motion filed
    
    by American Acceptance Company, LLC (“American”) on its complaint for collection of
    
    credit card debt. He asserts that genuine issues of material fact remain precluding summary
    
    judgment. We conclude that because American met its initial burden to establish that it was
    
    entitled to judgment and Mitchell did not designate admissible evidence to the contrary, no
    
    genuine issue of material fact exists. Therefore, we affirm.
    
                                  Facts and Procedural History
    
           In November 2010, American, as assignee of Chase Bank USA, N.A., filed a
    
    complaint against Mitchell alleging that he owed $17,982.21 on his Chase credit card
    
    account. Appellee’s App. at 1. American attached the credit card account “Cardmember
    
    Agreement” to its complaint as Exhibit A. Id. at 2-8. Mitchell filed his answer and
    
    affirmative defenses asserting that American’s complaint failed to allege a valid assignment.
    
           American moved for summary judgment and in support thereof designated the
    
    following: (1) its complaint and exhibit, (2) its memorandum in support of motion for
    
    summary judgment, (3) the affidavit of its office manager, Jennifer Bernard, (4) Mitchell’s
    
    credit card account billing statements from May 2007 through November 2008, and (5) two
    
    assignment documents. Id. at 9. Bernard’s affidavit stated that she was American’s duly
    
    authorized representative, that Mitchell entered into a charge agreement with American’s
    
    assignor, and that the business records which she received and of which she has personal
    
    knowledge show that the unpaid balance on his charge agreement was $17,982.21. Id. at 14.
    
    
                                                 2
    The assignment documents consisted of two bills of sale: one in which Chase sold 31,215
    
    accounts to Turtle Creek Assets, Ltd., and another in which Turtle Creek sold 501 of the
    
    accounts that it had purchased from Chase to American. Id. at 51-52.
    
           Mitchell filed an opposing memorandum and a designation of material issues of fact
    
    precluding entry of summary judgment, in which he asserted that American failed to attach
    
    its assignment to its complaint and that neither bill of sale identified Mitchell’s account
    
    number. Appellant’s App. at 18-19. Mitchell did not file a verified statement contesting the
    
    veracity of American’s designated evidence.
    
           On July 21, 2011, the trial court issued its summary judgment order finding that no
    
    genuine issues of material fact existed and that American was entitled to judgment against
    
    Mitchell in the sum of $17,982.21.
    
                                     Discussion and Decision
    
           Mitchell argues that the trial court erred in granting summary judgment to American.
    
    Our standard of review is well settled:
    
           When reviewing a grant of summary judgment, our standard of review is the
           same as that of the trial court. Considering only those facts that the parties
           designated to the trial court, we must determine whether there is a “genuine
           issue as to any material fact” and whether “the moving party is entitled to a
           judgment as a matter of law.” Ind. Trial Rule 56(C). In answering these
           questions, the reviewing court construes all factual inferences in the non-
           moving party’s favor and resolves all doubts as to the existence of a material
           issue against the moving party. The moving party bears the burden of making
           a prima facie showing that there are no genuine issues of material fact and that
           the movant is entitled to judgment as a matter of law; and once the movant
           satisfies the burden, the burden then shifts to the non-moving party to
           designate and produce evidence of facts showing the existence of a genuine
           issue of material fact.
    
    
                                                  3
    Dreaded, Inc. v. St. Paul Guardian Ins. Co., 
    904 N.E.2d 1267
    , 1269-70 (Ind. 2009) (citations
    
    and quotation marks omitted). “The party appealing the grant of summary judgment has the
    
    burden of persuading this court that the trial court’s ruling was improper.” Quezare v.
    
    Byrider Fin., Inc., 
    941 N.E.2d 510
    , 513 (Ind. Ct. App. 2011) (citation omitted), trans. denied.
    
            Mitchell argues that a genuine issue of material fact exists because American’s
    
    designated evidence does not establish that American owns his credit card account.1 We
    
    disagree. Bernard’s affidavit and the bills of sale are sufficient as a threshold matter to
    
    establish that American owns Mitchell’s credit card account. The burden then shifted to
    
    Mitchell to designate contrary evidence. Mitchell did not submit any admissible evidence to
    
    counter American’s evidence. Simply attacking the weight of the opposing party’s evidence
    
    does not create a genuine issue of material fact. Accordingly, since American met its initial
    
    burden to establish that it was entitled to judgment and Mitchell did not designate admissible
    
    evidence to the contrary, the trial court did not err in finding that no genuine issue of material
    
    fact existed. Therefore, we affirm the trial court’s grant of American’s summary judgment
    
    motion.
    
            Affirmed.
    
    BAKER, J., and BROWN, J., concur.
    
    
    
    
            1
             Mitchell also argues that pursuant to Indiana Trial Rule 9.2, American was required to attach the
    assignment instrument to its complaint. American’s action against Mitchell is founded upon his credit card
    agreement with Chase, and therefore by attaching the cardmember agreement to its complaint American
    complied with Trial Rule 9.2.
    
                                                        4
    

Document Info

DocketNumber: 02A03-1108-CC-366

Filed Date: 5/24/2012

Precedential Status: Non-Precedential

Modified Date: 10/30/2014