Olivia Covington for www.theindianalawyer.com

The Indiana Court of Appeals has reversed judgment in favor of a credit card debt collector after determining that the collector failed to establish that it owned the account it was trying to collect on.

In Kevin T. Williams v. Unifund CCR, LLC, 71A04-1604-CC-901, Kevin Williams opened a credit card account with Citibank and accumulated a monthly credit debt in the aggregate amount of $10,402.90 over the course of seven years. In March 2013, Williams’ account was sold to Pilot Receivables Management and assigned to Unifund CCR Partners.

In January 2014, Unifund filed a complaint against Williams alleging breach of contract, account stated, promissory estoppel and unjust enrichment. Williams, in turn, moved to dismiss and strike Unifund’s exhibits, arguing that the affidavit of debt, account statement and bill of sale and assignment were based on hearsay.

Unifund then moved for summary judgment, but the St. Joseph Circuit Court denied that motion and instead ordered that any additional exhibits offered at trial should be exchanged between the parties by Aug. 17, 2015. When the court conducted a bench trial on Aug. 31, Unifund offered two exhibits into evidence that contained documents that were not previously provided to Williams. The trial court admitted the evidence over Williams’ objection and found in favor of Unifund, awarding it $10,402.90.

Williams then moved to correct error, but the court denied that motion, prompting his appeal. The Indiana Court of Appeals found in Williams’ favor Friday, writing that the admission of both exhibits was an abuse of discretion.

In regard to Exhibit 1, which contained 17 credit card statements from Williams’ account with Citibank, Judge Patricia Riley noted that the statements failed to meet all of the exceptions to Indiana hearsay rules. Specifically, Nathan Duvelius, an authorized representative and custodian of records for Unifund, conceded that he was not familiar with Citibank’s bookkeeping methods. Thus, Riley wrote, Duvelius did not have personal knowledge of Citibank’s policies, so he could not qualify as a witness under the hearsay exception rules.

Exhibit 2, which was also admitted through Duvelius’ testimony, also did not meet hearsay exceptions, Riley wrote. The first document, a bill of sale and assignment, was signed by Patricia Hall, a financial account manager at Citibank. Thus, because Duvelius was unfamiliar with Citibank’s business practices, his testimony could not qualify, Riley wrote. Similarly, a 30-page spreadsheet generated by Citibank also could not qualify for a hearsay exception because Duvelius conceded that he did not know whether the spreadsheet was kept as part of Citibank’s regular business practices.

The second exhibit also contained two assignments between Pilot and Unifund that “fail to specify the transfer of rights in Williams’ account.” The assignments refer to “rights in the Receivables,” but the “Receivables” were likely more closely defined in a Servicing Agreement that was not admitted at trial, Riley wrote. Thus, the assignments fail to adequately establish that Unifund was assigned or had ownership of Williams’ account.

Finally, Riley wrote that the last evidence in Exhibit 2, an affidavit, is admissible under Indiana Evidence Rule 803(6), but did not satisfy Unifund’s burden of proof because Unifund failed to present admissible evidence proving that it owns Williams’ account.

Thus, the unanimous appellate panel reversed the trial court’s judgment in favor of Unifund.

Retiring Rucker Says He’s No Trailblazer, But Urges Diversity On CourtDave Stafford for www.the indianalawyer.com

As the first African-American to serve on the Indiana Court of Appeals and just the second on the Indiana Supreme Court, retiring Justice Robert Rucker said he doesn’t think of himself as a trailblazer, but he said it’s important the state’s high court look like the population of the state.

Aside from diversity of experience that informs the decisions issued by the court, Rucker said it builds confidence in the judiciary, particularly for young people, when they see people of color on the bench as well as a female chief justice.

Rucker spoke to reporters Thursday on his 70th birthday, announcing his retirement in the spring, though he said he hasn’t selected a date. The Indiana Supreme Court Judicial Nominating Commission immediately opened the application process for lawyers and judges interested in serving on the court, setting an application deadline of March 3. Applications are available here. http://www.in.gov/judiciary/jud-qual/3306.htm

Rucker said he hoped his successor would be “someone who’s well-qualified and brings to the table independence of thought, but some amount of life experience that gives voice at a table where oftentimes voices are not heard. So I guess I’m arguing in favor of diversity.”

While Rucker would have faced mandatory retirement in five years, he also had deliberated about whether to stand for retention in 2012. “I’m kind of an old-school guy, and I always thought you retired at 65. The end. There was no thinking about it, you just did it,” he said.

But he realized in 2012 that he wasn’t ready and hadn’t made plans for retirement. Now, the time was right. “I finally reached a point, I figured out what’s next,” he said. That includes spending time with his and his wife Denise’s 17 grandchildren, traveling, and perhaps doing some adjunct teaching and senior judging.

Before he leaves the bench, though, Rucker will travel with the court to his alma mater, Gary Roosevelt High School, for an oral argument scheduled March 9.

The appointment of Rucker’s successor will complete a total turnover of justices on the bench that began in 2010 with the appointment of Justice Steven David, ending what had been the longest period of continuity for the court in the state’s history.

Elevated to the Supreme Court by Gov. Frank O’Bannon in 1999, Rucker served with eight other justices — Theodore Boehm, Randall Shepard, Frank Sullivan, Brent Dickson, Steven David, Mark Massa, Loretta Rush and Geoffrey Slaughter. Prior to his Supreme Court appointment, Rucker served on the Indiana Court of Appeals after his appointment by Gov. Evan Bayh in 1991.

During his judicial career, Rucker authored 1,235 civil and criminal opinions. He served as vice-chair of the Indiana Commission for Continuing Legal Education, a member of the board of directors of the Indiana Trial Lawyers Association, a member of the board of directors of the Northwest Indiana Legal Services Organization, and as chair of the Judicial Council of the National Bar Association.

He was born in Canton, Georgia, grew up in Gary, and is a decorated veteran of the Vietnam War. He graduated from Indiana University (B.A. 1974) and Valparaiso University School of Law (J.D. 1976), and he earned a Master of Laws degree in the judicial process from the University of Virginia Law School (1998).

He also was a deputy prosecuting attorney in Lake County, city attorney for the city of Gary and practiced law in East Chicago before joining the bench.