First Nat. Bank of Omaha v. Eldridge

required. State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
Although we considered Davenport’s claims as though they
were not procedurally barred, we agree that the records and files
affirmatively show that Davenport was not entitled to postcon-
viction relief. Where the record adequately demonstrates that the
decision of a trial court is correct, although such correctness is
based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm. State v. Marshall, 269
Neb. 56, 690 N.W.2d 593 (2005).
CONCLUSION
We considered Davenport’s claim based upon State v. Pruett,
263 Neb. 99, 638 N.W.2d 809 (2002), even though it would
otherwise be procedurally barred. However, we conclude that he
failed to show that his trial or appellate counsel performed defi-
ciently. Because the record affirmatively shows that Davenport
was not entitled to postconviction relief, we affirm the dis-
trict court’s denial, without holding an evidentiary hearing, of
Davenport’s second motion for postconviction relief.
A ffirmed .
first NAtioNAl BANk of omAhA, Appellee , v .
edwiN e. eldridge , AppellANt .
756 N.W.2d 167
Filed August 26, 2008. 	No. A-07-1154.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions of law independently of the trial court’s conclusions.
4. Records: Appeal and Error. It is incumbent upon the party appealing to present a
record which supports the errors assigned.
12 	17 NeBrASkA AppeLLAte repOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

5. Summary Judgment: Records: Appeal and Error. the only issue which will be
considered on appeal of a summary judgment in the absence of a bill of exceptions
is the sufficiency of the pleadings to support the judgment.
6. Records: Presumptions: Appeal and Error. the absence of a bill of exceptions,
being the only vehicle for bringing evidence to an appellate court, results in the
presumption that the evidence sustains the trial court’s findings that there was no
genuine issue as to any material fact and that the case was correctly decided.
7. Courts: Appeal and Error. Despite a failure to file a statement of errors in the dis-
trict court, a higher appellate court may still consider the errors actually considered
by the district court.
8. Federal Acts: Banks and Banking. the National Bank Act authorizes national
banks to issue, market, and service credit cards.
Appeal from the District Court for Dodge County, J ohN e.
sAmsoN, Judge, on appeal thereto from the County Court for
Dodge County, keNNeth vAmpolA, Judge. Judgment of District
Court affirmed.
edwin e. eldridge, pro se.
karl Von Oldenburg, of Brumbaugh & Quandahl, p.C., L.L.O.,
for appellee.
sievers , moore, and CAssel, Judges.
CAssel, Judge.
INtrODUCtION
First National Bank of Omaha (the Bank) sued edwin e.
eldridge for failing to make payments on a credit card it issued
to eldridge. the county court entered summary judgment in
the Bank’s favor and overruled eldridge’s motion to alter or
vacate the judgment, and the district court affirmed. this appeal
focuses on eldridge’s claim that a national bank may not “lend
its credit.” Because a bank is loaning money when it extends
credit via a credit card, we affirm.
BACkGrOUND
In December 2006, the Bank sued eldridge in county court.
the complaint alleged that the Bank, a national banking asso-
ciation, issued a credit card to eldridge “whereas [eldridge]
was/were extended credit.” the complaint further alleged that
eldridge used the credit card, that he went into default after
failing to make payments on the charges, and that he owed
FIrSt NAt. BANk OF OmAHA v. eLDrIDGe 	13
Cite as 17 Neb. App. 12

the Bank nearly $17,000. eldridge filed an answer, denying
the above allegations and raising as affirmative defenses that
he never entered into a contract with the Bank, that he never
received a credit card agreement from the Bank, that he was not
informed of any terms or conditions of a contract, and that he
never received any demand for payment.
the Bank moved for summary judgment, and the county
court sustained the motion. the court later denied eldridge’s
motion to alter or vacate the judgment.
eldridge appealed to the district court. During the hearing,
the court received the bill of exceptions from the county court’s
hearing on the motion to alter or vacate the judgment. the dis-
trict court affirmed the county court’s judgment for the Bank.
eldridge timely appeals. pursuant to authority granted to this
court under Neb. Ct. r. App. p. § 2-111(B)(1), this case was
ordered submitted without oral argument.
ASSIGNmeNtS OF errOr
eldridge assigns seven errors. He alleges, consolidated and
restated, that the district court erred in failing to find (1) that a
bank has no power to lend its credit, (2) that the Bank did not
produce any admissible evidence to prove it was allowed to lend
its credit to eldridge, (3) that the records custodian did not lay
a proper foundation for authentication of a valid cardmember
agreement existing between the Bank and eldridge or for the
statements in his affidavit, and (4) that the Bank’s counsel made
no attempt to state facts through a competent witness.
StANDArD OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. City of Omaha v. City
of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008). In reviewing
a summary judgment, an appellate court views the evidence in a
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
14 	17 NeBrASkA AppeLLAte repOrtS

[3] When reviewing questions of law, an appellate court
resolves the questions of law independently of the trial court’s
conclusions. Hughes v. Omaha Pub. Power Dist., 274 Neb. 13,
735 N.W.2d 793 (2007).
ANALYSIS
[4-6] Due to the absence of a bill of exceptions from the sum-
mary judgment hearing, the only assignment of error that we
reach is whether the court erred in failing to find that a national
bank has no power to lend its credit. the transcript contains the
affidavit of a records custodian for the Bank and eldridge’s affi-
davit. However, our record contains no bill of exceptions from
the hearing on the motion for summary judgment. It is incum-
bent upon the party appealing to present a record which supports
the errors assigned. Sindelar v. Hanel Oil, Inc., 254 Neb. 975,
581 N.W.2d 405 (1998). the only issue which will be consid-
ered on appeal of a summary judgment in the absence of a bill
of exceptions is the sufficiency of the pleadings to support the
judgment. Id. the absence of a bill of exceptions, being the only
vehicle for bringing evidence to an appellate court, results in the
presumption that the evidence sustains the trial court’s findings
that there was no genuine issue as to any material fact and that
the case was correctly decided. Id.
[7] We may consider this assignment of error despite the
absence in our record of the statement of errors required by
Neb. Ct. r. § 6-1452(A)(7) on the appeal to the district court.
Despite a failure to file a statement of errors in the district
court, a higher appellate court may still consider the errors
actually considered by the district court. See State v. Engleman,
5 Neb. App. 485, 560 N.W.2d 851 (1997). It is clear from the
district court’s statements and judgment on appeal that eldridge
filed a statement of errors and that he raised the issue of a
bank lending its credit. We now turn to the only issue properly
before us.
In support of eldridge’s argument that the Bank may not lend
its credit, he cites “title 12 U.S.C. Section 24, paragraph 75,”
brief for appellant at 7; quotes several older federal cases stating
that a national bank may not lend its credit; and directs us to
three old cases contained in the first series of the Southeastern
FIrSt NAt. BANk OF OmAHA v. eLDrIDGe 	15
Cite as 17 Neb. App. 12

reporter. the authority cited by eldridge does not address a
national bank’s ability to issue credit cards, and the cases are
simply not on point. See, e.g., Federal Intermediate Credit
Bank v. L’Herisson, 33 F.2d 841 (8th Cir. 1929); Farmers’ &
Miners’ Bank v. Bluefield Nat. Bank, 11 F.2d 83 (4th Cir. 1926);
Merchants’ Bank of Valdosta v. Baird, 160 F. 642 (8th Cir. 1908);
Bowen v. Needles Nat. Bank, 94 F. 925 (9th Cir. 1899); National
Bank of Commerce v. Atkinson, 55 F. 465 (C.C.D. kan. 1893).
Although we conclude below that issuance of credit cards does
not constitute lending of a bank’s credit, we note in passing that
current statutory and regulatory authority does permit a national
bank to lend its credit under certain circumstances. See 12
C.F.r. § 7.1017(a) (2008).
[8] “[t]he [National Bank Act] authorizes national banks
to issue, market, and service credit cards.” Capital One Bank
(USA), N.A. v. McGraw, 563 F. Supp. 2d 613, 617 (S.D.
W. Va. 2008). A national banking association has the power
to exercise “all such incidental powers as shall be necessary
to carry on the business of banking” and may “loan[] money
on personal security.” 12 U.S.C. § 24 (2000). A national
bank may make loans or extensions of credit. 12 C.F.r.
§ 32.1(2) (2008). It may “make, sell, purchase, participate
in, or otherwise deal in loans and interests in loans that are
not secured by liens on, or interests in, real estate.” 12 C.F.r.
§ 7.4008(a) (2008).
Although the issue is determined by federal law, we observe
that the laws governing banks chartered by the State of Nebraska
are consistent with the federal law on this issue. the Nebraska
Banking Act defines “[m]aking loans” to include “advances or
credits that are initiated by means of credit card or other trans-
action card,” Neb. rev. Stat. § 8-101(11) (Cum. Supp. 2006),
and defines a “[p]ersonal loan” to “include loans or advances
initiated by credit card or other type of transaction card,” Neb.
rev. Stat. § 8-815(5) (Cum. Supp. 2006). Banks are in the
business of loaning money and extending credit; issuing and
servicing credit cards is just another method of carrying out
its business.
the Bank contends that by issuing credit cards to consumers,
the Bank is not lending its credit, but, rather, loaning its money.
16 	17 NeBrASkA AppeLLAte repOrtS

We agree. When a consumer uses a credit card, the consumer is
deferring payment and the issuer pays for the purchases on the
consumer’s behalf. In return, the consumer is obligated to repay
the money loaned and may have to pay interest. When a bank
makes a loan, it uses funds deposited by other customers. When
the Bank initially pays for the consumer’s credit card purchases,
it is not lending its credit. rather, the Bank is extending credit
using money deposited by its customers. eldridge’s assignment
of error lacks merit.
CONCLUSION
We conclude that the district court did not err in affirming the
county court’s judgment in favor of the Bank and in finding no
error in the county court’s denial of eldridge’s motion to alter
or vacate.
A ffirmed .
FIrSt NAt. BANk OF OmAHA v. eLDrIDGe 	17
Cite as 17 Neb. App. 12