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Money Store Investment Corp. v. Summers2/9/2005
0,000. Money Store's Br. at 18.
A party asserting equitable estoppel must show its "(1) lack of knowledge and of the means of knowledge as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) action based thereon of such a character as to change its position prejudicially." City of Crown Point v. Lake County, 510 N.E.2d 684, 687 (Ind. 1987). As already noted, it is undisputed that the National City mortgages containing the dragnet clauses were properly recorded. Further, the public record contained some information about litigation between Phillips and Summers that pre-dated Money Store's loans to Summers. Finally, the designated evidence does not indicate that Money Store inquired as to "all" of Summers' indebtedness to the bank. Thus, Money Store has not shown a lack of "the means of knowledge as to the facts" of possible additional obligations by Summers that could have been secured pursuant to the terms of the mortgages. Id.
Phillips reminds us that Money Store failed to provide the "proper payoff" as indicated by National City. Money Store replies that the fact that its initial payments to National City were "in fact about $373 less than the payoffs quoted by National City" is of no moment because (1) the "later affidavit" by an officer of National City indicated that the "balance owed" was simply in the amount of the overdraft and related charges, and (2) $373 is "a minor discrepancy" that should be "disregard " by us. Money Store's Reply at 12, 13. As to the first assertion, if the full payoff amounts were tendered to National City, there is no evidence indicating when that occurred. As to the second "minor discrepancy" assertion, Money Store's frequent references on appeal to the fact that it advanced a sum of more than $900,000 to Summers and Mangy Moose are stark reminders of how important it was for Money Store to confirm exactly what was owed National City and to assure those debts were paid in full. Further, Money Store cites to no evidence that it inquired of National City - subsequent to September 15, 2000 - as to why National City had not given Money Store the releases. Money Store's general argument is unavailing because, as discussed above, the designated evidence does not show that Money Store proved its lack of "the means of knowledge as to the facts" now known. Crown Point, 510 N.E.2d at 687.
3. Affidavits
Money Store also argues that the trial court erred when it failed to grant its motion to strike portions of (1) the affidavit by an officer of National City, and (2) an affidavit by Phillips' attorney. Specifically, Money Store claims portions of the affidavits failed to comply with the requirement of Indiana Trial Rule 56(E) that statements be based upon personal knowledge and also contained inadmissible legal conclusions so as to contravene Duncan v. Duncan, 764 N.E.2d 763 (Ind. Ct. App. 2002), trans. denied.
The trial rule provides that
An affidavit submitted on a motion for summary judgment 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.
Ind. Trial Rule 56(E). Duncan involved the appeal of a summary judgment order in a personal injury action that alleged the young vehicle driver's wanton and willful misconduct. The affidavit at issue stated that the driver's act of disobeying her mother by having her sister as a passenger in the vehicle was "willful misconduct," and we held that such a legal conclusion should not be considered. 764 N.E.2d at 766.
The affidavit of bank officer Kenneth Lust states that he
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