Opinion
24A-CC-1006
08-09-2024
Linda Jarvis, Appellant-Defendant v. Discover Bank, Appellee-Plaintiff
ATTORNEY FOR APPELLANT FRANKLIN S. YUDKIN LOUISVILLE, KENTUCKY ATTORNEY FOR APPELLEE KARA A. JAMES ZWICKER &ASSOCIATES, P.C. HEBRON, KENTUCKY
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Grant Superior Court The Honorable Jason D. McVicker, Judge Trial Court Cause No. 27D03-2105-CC-324
ATTORNEY FOR APPELLANT FRANKLIN S. YUDKIN LOUISVILLE, KENTUCKY
ATTORNEY FOR APPELLEE KARA A. JAMES ZWICKER &ASSOCIATES, P.C. HEBRON, KENTUCKY
MEMORANDUM DECISION
Bradford, Judge
Case Summary
[¶1] Linda Jarvis applied for, and subsequently received, a credit card issued by Discover Bank ("Discover") in 1997. Jarvis used the credit card, making purchases and payments pursuant to the terms contained in Discover's Cardmember Agreement ("the User Agreement"), until September of 2019. On May 14, 2021, Discover filed suit against Jarvis to recover the outstanding $6984.72 balance on her account. On April 23, 2024, the trial court entered summary judgment in favor of Discover in the amount of $6984.72 plus costs and interest. We affirm.
Facts and Procedural History
[¶2] Jarvis opened a Discover credit card account on February 13, 1997. Over a period of approximately twenty-two years, Jarvis made purchases and payments on the account. Jarvis eventually stopped making payments on the account with the last payment being received by Discover "on or about 09/22/19 in the amount of $137.00." Appellant's App. Vol. II p. 13.
[¶3] On May 14, 2021, Discover filed suit against Jarvis in which it claimed that Jarvis was in default of the terms of the User Agreement and her account had an outstanding balance of $6984.72. On April 23, 2024, the trial court granted Discover's motion for summary judgment and entered judgment against Jarvis "in the amount of $6,984.72, together with costs in the amount of $157.00 and for service in the amount of $85.00, plus interest at the statutory rate per annum." Appellant's App. Vol. II p. 218.
Discussion and Decision
[¶4] Jarvis contends that the trial court erred in entering summary judgment in favor of Discover.
When we review a grant or denial of a motion for summary judgment, our standard of review is the same as it is for the trial court. The moving party must show there are no genuine issues of material fact and he is entitled to judgment as a matter of law. If the moving party carries its burden, then the nonmoving party must present evidence establishing the existence of a genuine issue of material fact. In deciding whether summary judgment is proper, we consider only the evidence the parties specifically designated to the trial court. We construe all factual inferences in favor of the non-moving party and resolve all doubts regarding the existence of a material issue against the moving party.Asklar v. Gilb, 9 N.E.3d 165, 167 (Ind. 2014) (citations omitted). Jarvis raises numerous contentions in challenging the trial court's award of summary judgment to Discover.
I. Affidavit Submitted in Support of Discover's Motion for Summary Judgment
A. Date on Affidavit
[¶5] Jarvis first contends that summary judgment was inappropriate because the designated affidavit of Discover Litigation Support Coordinator LaShawn Sands was dated by the notary public, before whom it was sworn, as having been sworn to on December 18, 2024, i.e., a date that "has not so far existed in human history." Appellant's Br. p. 11. It is clear from the record, however, that the notary public merely made a scrivener's error when dating the affidavit.
[¶6] A scrivener's error, also referred to as a clerical error, is "[a]n error resulting from a minor mistake or inadvertence and not from judicial reasoning or determination; esp., a drafter's or typist's technical error that can be rectified without serious doubt about the correct reading." BLACK'S LAW DICTIONARY 683 (11th Ed. 2019). Sands's affidavit was designated in support of Discover's motion for summary judgment, which was filed with the trial court on January 26, 2024. It is clear from the context of Discover's motion for summary judgment that notation of the year 2024 was merely a harmless scrivener's error, as the affidavit was made and notarized prior to being submitted to the trial court in January of 2024. The date listed by the notary public was a minor mistake that did not affect any of Sands's statements or Sands's credibility. As such, we cannot say that the trial court erred in considering Sands's affidavit.
B. Sands's Ability to Make Averments in Affidavit
[¶7] Jarvis also contends that the trial court erred in considering Sands's affidavit, arguing that Sands was not an employee of Discover and therefore could not account for the accuracy of the attached business records. Specifically, Jarvis claims that Sands was employed by "a third-party collection agency called Discover Product's Inc." rather than Discover. Appellant's Br. p. 21. Essentially, Jarvis asserts that Sands lacked the ability to verify the accuracy of the attached business records such to bring them under the business-record exception to the general prohibition against the admission of hearsay. We disagree.
[¶8] Jarvis relies on our opinion in Zelman v. Capital One Bank (USA) N.A., 133 N.E.3d 244 (Ind.Ct.App. 2019), in support of her assertion that Sands lacked the personal knowledge to bring the designated documents under the businessrecords exception. In Zelman, we concluded that neither the customer agreement nor the purported credit card statements had been sufficiently certified or sworn. 133 N.E.3d at 248. In that case, the bank had provided an affidavit from an individual who had been employed by the bank's affiliate, rather than the bank, and who had indicated that she had had access to the "relevant systems and documents" needed to verify the designated information but did not identify the systems and documents to which she referred. Id. She had also failed to identify the attached customer agreement as the agreement that governed the use of Zelman's account or identify the credit card statements as records of Zelman's account. Id. at 249. Based on these failures, we concluded that the affidavit had not laid a proper foundation to authenticate either the customer agreement or the credit card statements as admissible business records. Zelman, however, is easily distinguishable from the instant matter.
[¶9] Unlike the affidavit at issue in Zelman, Sands's affidavit lays a proper foundation for the designated exhibits.
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. 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. This could be the entrant, the entrant's supervisor, co-workers, a records custodian or any other such person.Hussain v. Salin Bank & Tr. Co., 143 N.E.3d 322, 332 (Ind.Ct.App. 2020) (citations and quotation omitted), trans. denied. The designated evidence demonstrates that Sands meets this standard and had the requisite familiarity with the records pertaining to Jarvis's account.
[¶10] In the challenged affidavit, Sands averred to the following:
I am a Litigation Support Coordinator for DISCOVER BANK, an FDIC insured Delaware State Bank. DISCOVER BANK, as well as its wholly-owned servicing subsidiary DISCOVER PRODUCTS INC., is responsible for, among other things, maintaining account records pertaining to Discover Credit Card accounts and interacting with Discover Credit Card Account Holder with regard to payments owed on those accounts.
This affidavit is made on the basis of my personal knowledge and in support of [Discover's] suit on account against [Jarvis].Appellant's App. Vol. II p. 27. Sands's affidavit clearly indicates that Sands is a litigation support coordinator for Discover and that both Discover and its "wholly-owned servicing subsidiary" Discover Products were responsible for maintaining the records associated with Jarvis's account. Appellant's App. Vol. II p. 27. The affidavit indicated that it was "made on the basis of [Sands's] personal knowledge and in support of" Discover's lawsuit against Jarvis. Appellant's App. Vol. II p. 27. Sands further averred for the accuracy of the designated User Agreement and credit card statements. Sands averred that both the User Agreement and the credit card statements were true and accurate copies of the documents and that the documents were for Jarvis's account. Thus, unlike the affidavit at issue in Zelman, Sands's affidavit lays a proper foundation for the designated records sufficient to qualify them as admissible evidence under the business-records exception to the prohibition against the admission of hearsay.
II. Additions to the Exhibits Attached to Sands's Affidavit
[¶11] Jarvis next contends that Exhibits A and B to Sands's affidavit were not properly before the trial court because cover sheets and page numbers were added to the documents by members of the law firm representing Discover, not by Sands. For its part, Discover asserts that Jarvis's "counsel is on a fishing expedition and trying to create wrongdoing on the part of [Discover's] counsel by arguing about page numbering and the placement of Exhibit pages A and B." Appellee's Br. p. 16.
[¶12] Sands's affidavit makes clear that Sands, and not some unknown individual, collected the documents that made up Exhibits A and B, i.e., the User Agreement and copies of Jarvis's account balance statements. Specifically, Sands averred as followed:
I have personally inspected the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain the applicable terms and conditions, the balance due on said account and whether the Cardmember(s) have made payments on that balance.
According to the records maintained by DISCOVER BANK and DISCOVER PRODUCTS INC., during the period of time that account statements were generated, such statements were either provided to the Cardmember(s) electronically or mailed to the Cardmember(s) at the address maintained on file during that time period. According to the records maintained by DISCOVER BANK and DISCOVER PRODUCTS INC., the last known address associated with the Cardmember(s) is...
The account is in default because the Cardmember(s) have not paid the amounts due and owing to DISCOVER BANK on the account.
The business records maintained by DISCOVER BANK and DISCOVER PRODUCTS INC., and described above show that the Cardmember(s)' account with DISCOVER BANK is governed by terms and conditions referred to as "terms level 271." A true and correct copy of these terms and conditions have been provided to DISCOVER BANK's counsel in this case and is attached hereto as Exhibit A.
Exhibit B includes true and accurate copies of periodic statements, retrieved from the record-keeping system described above, and shows the amount that is now due and owing DISCOVER BANK on the account.Appellant's App. Vol. II p. 27. Sands averred to the documents' authenticity. Trial Rule 56(E) requires that "[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." Discover complied with this requirement by providing Sands's averment as to the authenticity of the documents and attaching them as exhibits to Sands's affidavit. The fact that counsel for Discover added cover pages and page numbers to make it easier for the trial court (and opposing counsel) to access the documents and find the relevant information did not alter the documents in any material way such to call their authenticity into question. We therefore cannot say that the act of adding cover pages or page numbers impacted the veracity of the documents themselves such that the trial court could not consider the designated documents.
Jarvis cites to an unrelated case that apparently was or is pending in Shelby County in support of her assertion that the trial court could not rely on the designated documents. As this case is an entirely different matter, Jarvis's citation to trial court proceedings in the alleged Shelby County case are misplaced and not appropriate for consideration by this court in this matter.
III. Additional Challenge to the User Agreement
[¶13] Finally, Jarvis contends that the trial court should not have considered the User Agreement tendered by Discover because it was the version of the User Agreement that was valid in 2019, not the version that was in effect when she had applied for the credit card in 1997. Specifically, Jarvis argues that Discover was required to "prove that a valid contract was entered into, what the terms of the contract were, that [it] performed all obligations [it] had under the contract, but that [she] failed or refused to perform [her] obligations under the contract." Appellant's Br. p. 14. Jarvis does not dispute that she had entered into a contract with Discover or that Discover had provided her with credit pursuant to the User Agreement. Likewise, she does not appear to dispute that she had failed to repay her debt. She merely argues that the trial court erred in relying on the version of the User Agreement designated by Discover because it was not the version in effect when she obtained and began using her credit card in 1997.
[¶14] "[C]redit card agreements are contracts, and the issuance and use of a credit card creates a legally binding agreement." Meyer v. Nat'l City Bank, 903 N.E.2d 974, 976 (Ind.Ct.App. 2009). We have previously held that a consumer impliedly consents to the terms of a credit agreement by using a credit card. Weldon v. Asset Acceptance, LLC, 896 N.E.2d 1181, 1187 (Ind.Ct.App. 2008), trans. denied. We have further described the general nature of credit-card transactions as follows:
Essentially, when a consumer uses a bank-issued credit card to make a purchase, the bank pays the merchant on behalf of the consumer, and that amount is treated as a loan by the bank to the consumer, with repayment contractually governed by the terms of the credit card agreement. The issuance of a credit card and accompanying cardholder agreement is a standing offer to extend credit that may be revoked at any time. Additionally, each time the credit card is used, a separate contract is formed between the cardholder and bank.Smither v. Asset Acceptance, LLC, 919 N.E.2d 1153, 1158 (Ind.Ct.App. 2010) (citation and quotation omitted).
[¶15] Jarvis does not point to any specific changes between the 1997 User Agreement and the version provided to the trial court in support of Discover's motion for summary judgment. The version of the User Agreement designated to the trial court explicitly informs a credit card user that failure to cancel an account and use of the account constitute acceptance and that the terms of the agreement "may change from time to time." Appellant's App. Vol. II p. 30. There is nothing to suggest that the 1997 User Agreement did not contain a similar notification. Further, applying our decision in Smither, because Jarvis last used her credit card in 2019, she had impliedly consented to the terms of the User Agreement as set forth in the 2019 version that was designated to the trial court. See Smither, 919 N.E.2d at 1158 ("[E]ach time the credit card is used, a separate contract is formed between the cardholder and bank."). As such, we cannot say that the trial court erred in considering the User Agreement as proof that Jarvis had contractually agreed to repay her credit card debt.
[¶16] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.