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MEMORANDUM DECISION - NOT FOR PUBLICATION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.
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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.
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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