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Money Store Investment Corp. v. Summers2/9/2005
was over the age of eighteen years of age, had "personal knowledge of the matters stated," was vice president of National City, and "was the officer responsible for the credit administration of the loan and other accounts of Mangy Moose Enterprises, Inc. and Neal Summers, its President." (App. 207). Lust's affidavit further stated that on February 14, 2002, the date that mortgages were assigned from National City to Phillips, "Mangy Moose Enterprises, Inc. and Neal Summers owed to National City" $5,181.25 on various overdraft instruments and overdraft fees and that National City had "incurred a collection charge relating" to collection of the account in the amount of $2,000." Id. (emphasis added). Finally, Lust's affidavit stated the account number of "the Mangy Moose Enterprises, Inc. account." Id.
Directing the trial court's attention to the above highlighted language in Lust's affidavit ("and Neal Summers owed"), Money Store argued that it was "a legal conclusion rather than a fact inadmissible into evidence" because the affidavit also states that the account "was held by Mangy Moose and not Neal Summers." (App. 218). On that basis, Money Store asked the trial court to "strike as inadmissible" that portion of the affidavit. (App. 218).
First, contrary to Money Store's argument to the trial court, Lust's affidavit did not aver that the Mangy Moose account "was held by Mangy Moose and not Neal Summers." Second, based upon Lust's statement that he was responsible for "the credit administration of the loan and other accounts of" Mangy Moose and Summers, it appears that Lust had established a foundation for his having personal knowledge of the extent of Summers' personal liability for the overdraft indebtedness to National City.
Phillips' attorney, J. Philip Burt, also submitted an affidavit, wherein he submitted copies of what he averred were "true and accurate copies of the overdraft instruments of Neal Summers" on the account at National City for "Paula's Seafood and Mangy Moose Saloon, upon which the mortgage debt is secured." (App. 132). Money Store moved to strike this averment as he lacked the requisite personal knowledge of the exhibits, and his statement of Summers' legal liability and the security effect thereof were inadmissible legal conclusions.
As Phillips correctly responds, in addition to the copies of checks submitted by Phillips' attorney, other designated evidence was also submitted by Money Store to confirm the overdraft liability as to the account. Further, as to the arguable inadmissibility of the attorney's statement about Summers' liability for the debts of Mangy Moose, what we said in Duncan was that the portion of an affidavit containing a conclusion of law "will not be considered in ruling on a motion for summary judgment." Duncan, 764 N.E.2d at 766. This comports with our supreme court's declaration that conclusory statements not admissible at trial "should be disregarded when determining whether to grant or deny a summary judgment motion." Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990). We presume that the trial court knows the law and complies with it. El v. Beard, 795 N.E.2d 462, 467 (Ind. Ct. App. 2003).
Accordingly, we presume that the trial court did not consider the portion of the attorney's affidavit stating that Summers was liable in reaching its decision on Phillips' motion for summary judgment, and we do not find its failure to grant Money Store's motion to strike to constitute reversible error.
4. Summers' Liability
Money Store next argues that "the contractual obligation to pay" the overdraft obligation "on the Mangy Moose checking account was owed by Mangy Moose, not Summers personal
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