The opinion
Filed
Washington State
Court of Appeals
Division Two
May 9, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
AMERICAN EXPRESS CENTURION BANK, No. 48603-2-II
Respondent,
v.
HEINZ HENGSTLER, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Heinz Hengstler appeals the superior court’s order granting American
Express Centurion Bank’s motion for summary judgment in its collection case against Hengstler.
Hengstler makes several arguments, including (1) the superior court erred by considering
Morales-Arias’s affidavit because he had no personal knowledge, (2) the superior court erred by
considering the account records because the records were hearsay, (3) Hengstler’s due process
rights were violated because he was not given the opportunity to cross-examine Morales-Arias,
(4) American Express failed to prove the absence of a genuine issue of material fact as to the
contract between American Express and Hengstler, (5) American Express exceeded its authority
as a national bank under 12 U.S.C. § 24 (2008) and therefore its actions were ultra vires, (6)
American Express failed to properly validate Hengstler’s debt pursuant to 15 U.S.C. § 1692
(1997), (7) counsel for American Express did not have the authority to represent American
Express, (8) the superior court did not have subject matter jurisdiction over the case because it
misapplied the rules of civil procedure, and (9) the superior court erred by holding Hengstler to
No. 48603-2-II
the same standards as an attorney. We disagree with all of Hengstler’s claims and affirm the
superior court.
FACTS
American Express issued two credit card accounts to Hengstler, which Hengstler
regularly used and made payments on. In 2012 Hengstler stopped making payments on the
accounts. At the time of default, the combined amount due and owing on the two accounts was
$31,592.05.
American Express filed complaints against Hengstler for the unpaid amount on each
account. American Express moved for summary judgment and supported its motions with
affidavits from an assistant custodian of records for American Express. The affidavits each
referenced an attached unsigned “cardmember” agreement and a single account statement.
American Express also submitted additional account statements which were unattached and
unreferenced by the affidavits. The superior court granted American Express’s motions for
summary judgment.
Hengstler appealed both cases to this court, which we consolidated. We held that the
unattached account statements were inadmissible because they were not referenced by the
affidavits and therefore the superior court erred by considering them. We further held that the
remaining properly considered attached records “did not reveal how the debt was accumulated
and did not contain any other evidence of Hengstler’s personal acknowledgement of the debt,
[and] American Express did not provide sufficient evidence to demonstrate the existence of a
contract with Hengstler.” American Express Centurion Bank v. Hengstler, No. 45463-7-II, slip
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No. 48603-2-II
op. at 12 (Wash. Ct. App. Mar. 24, 2015) (unpublished), http://www.courts.wa.gov/opinions.
Consequently, we reversed summary judgment.
On remand, American Express filed another motion for summary judgment on the
consolidated case. American Express’s motion was supported by affidavits of Mario Morales-
Arias, an assistant custodian of records for American Express, for both accounts, each with two
attached exhibits: (1) an unsigned cardmember agreement and (2) monthly account records and
statements of Hengstler’s accounts from 2005 to 2012. The account statements showed detailed
and itemized usage of and payments on each account by Hengstler. In response, Hengstler filed
a document entitled “Defendant’s Issues In Dispute.” Clerk’s Papers (CP) at 9. The superior
court concluded that the deficiencies previously identified by this court had been rectified, that
Hengstler had failed to raise any issue of fact in his response, and granted American Express’s
motion for summary judgment. Hengstler appeals.
ANALYSIS
I. MORALES-ARIAS’S AFFIDAVIT & ACCOUNT RECORDS
Hengstler argues that the superior court erred by considering Morales-Arias’s affidavits
and the attached account records. Specifically, he contends that because Morales-Arias failed to
sufficiently establish his personal knowledge, the attached account records were hearsay. We
disagree.
CR 56(e) states in part:
Supporting and opposing affidavits 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.
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No. 48603-2-II
(Emphasis added.) We review de novo the superior court’s evidentiary decisions on summary
judgment. Farrow v. Alfa Laval, Inc., 179 Wn. App. 652, 660, 319 P.3d 861 (2014).
A. Morales-Arias’s Personal Knowledge of Hengstler’s Account Records
Here, Morales-Arias’s affidavits demonstrated his personal knowledge of Hengstler’s
account records. Morales-Arias’s affidavits stated he was an “Assistant Custodian of Records
for American Express,” and had personal knowledge of American Express’s regular practices
and procedures regarding their credit card billing procedures, business practices, and
recordkeeping. Suppl. CP at 22. The affidavits further stated that he had access to and was
generally familiar with American Express’s cardmember account records, and that he based the
statements in his affidavits on his personal knowledge of Hengstler’s account records.
Moreover, the affidavits stated Morales-Arias had personally reviewed those account records,
and would be competent to testify to everything within his affidavits if called as a witness. The
information in Morales-Arias’s affidavits was based upon Hengstler’s account records.
Morales-Arias’s position as an assistant records custodian at American Express, his
personal knowledge of American Express’s procedures and records, his statement that he
reviewed Hengstler’s account records, and his statements of facts about Hengstler’s account
based upon these records, combine to establish Morales-Arias’s personal knowledge of
Hengstler’s account records.
B. Business Records Exception: Account Records
Hengstler also argues that the superior court erred by considering his account records
because they are hearsay. We hold that Morales-Arias’s affidavits established the admissibility
of the account records and the superior court did not err by considering them.
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“Hearsay” is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c).
Hearsay is inadmissible unless it comes within an exception established by statute or common
law. ER 802; State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007).
Business records of regularly conducted activity are an exception to the hearsay rule.
RCW 5.45.020; State v. Iverson, 126 Wn. App. 329, 337, 108 P.3d 799 (2005). RCW 5.45.020
states:
A record of an act, condition or event, shall in so far as relevant, be competent
evidence if the custodian or other qualified witness testifies to its identity and the
mode of its preparation, and if it was made in the regular course of business, at or
near the time of the act, condition or event, and if, in the opinion of the court, the
sources of information, method and time of preparation were such as to justify its
admission.
In other words, the custodian of the records or other qualified witness must testify to (1)
the record’s identity; (2) its mode of preparation; (3) whether it was made in the regular course
of business; and (4) whether it was made at or near the time of the act, condition, or event. RCW
5.45.020. If the affidavit touches upon each of these elements in regards to a record, that record
is generally admissible. See Discover Bank v. Bridges, 154 Wn. App. 722, 726, 226 P.3d 191
(2010).
Morales-Arias is the assistant custodian of records for American Express. Morales-
Arias’s affidavits identified the attached account records as “[a] true and correct copy of the
Cardmember Agreement in effect at the time of cancellation of [Hengstler’s] Account” and
“[t]rue and correct copies of the monthly Account Statements for [Hengstler’s] Account.” Suppl.
CP at 24, 558. Morales-Arias’s affidavits stated the monthly account statements were made by a
computerized process. Morales-Arias’s affidavits stated that Hengstler’s account records were
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No. 48603-2-II
made in the regular course of business and that they were made at or near the time of the act,
condition, or event. See RCW 5.45.020. Thus, Morales-Arias’s affidavits touched on each of
the four required elements in regards to the attached account records and consequently those
records were admissible under the business records exception to the hearsay rule. The superior
court did not err by considering them as evidence of American Express’s contract with
Hengstler.
C. Right To Cross-Examine Morales-Arias
Hengstler argues that his due process rights were violated because he did not receive the
opportunity to cross-examine Morales-Arias at the summary judgment hearing. We disagree.
Summary judgment’s purpose is to determine if there are any genuine issues of material
fact, so as to avoid an unnecessary trial. Am. Express Centurion Bank v. Stratman, 172 Wn.
App. 667, 675-76, 292 P.3d 128 (2012). The superior court does not weigh the evidence or
assess witness credibility on a summary judgment motion. Barker v. Advanced Silicon
Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633 (2006). Accordingly, CR 56(c) allows
the superior court to grant summary judgment without hearing testimony, based on only
“pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits.” Only if summary judgment is denied “should the matter proceed to trial and allow [a
party] ‘to disprove such facts by cross-examination and by the demeanor of the moving party
while testifying.’” Stratman, 172 Wn. App. at 676 (quoting Mich. Nat’l Bank v. Olson, 44 Wn.
App. 898, 905, 723 P.2d 438 (1986)). Thus, the superior court did not err by relying on Morales-
Arias’s affidavits without providing Hengstler an opportunity to cross-examine Morales-Arias at
the summary judgment hearing.
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II. NO GENUINE ISSUE OF MATERIAL FACT
Hengstler argues American Express was not entitled to summary judgment because it
could not show an absence of genuine issues of material fact. Specifically, Hengstler argues that
American Express provided insufficient evidence to prove the existence of a valid contract
between them. We disagree.1
We review summary judgment orders de novo. Ranger Ins. Co. v. Pierce County, 164
Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is appropriate if, when viewing the
facts in the light most favorable to the nonmoving party, there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ranger Ins., 164
Wn.2d at 552. A genuine issue of material fact exists when reasonable minds could reach
different conclusions. Michael v. Mosquera–Lacy, 165 Wn.2d 595, 601, 200 P.3d 695 (2009).
Summary judgment is subject to a burden-shifting scheme. Michael, 165 Wn.2d at 601;
Ranger Ins., 164 Wn.2d at 552. The moving party initially bears the burden of submitting
adequate affidavits showing that it is entitled to judgment as a matter of law. Michael, 165
Wn.2d at 601; Ranger Ins., 164 Wn.2d at 552. If the moving party does not sustain its burden,
the superior court should deny summary judgment “regardless of whether the nonmoving party
has submitted affidavits or other evidence in opposition to the motion.” Hash v. Children’s
Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). If the moving party
has met its burden, the burden shifts to the nonmoving party to set forth “‘specific facts which
sufficiently rebut the moving party’s contentions and disclose the existence of a genuine issue as
1
Hengstler also argues that he was entitled to summary judgment. However, Hengstler never
moved for summary judgment. His claim fails.
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No. 48603-2-II
to a material fact.’” Ranger Ins., 164 Wn.2d at 552 (quoting Meyer v. Univ. of Wash., 105
Wn.2d 847, 852, 719 P.2d 98 (1986)); Hash, 110 Wn.2d at 915.
To be entitled to summary judgment on its claims that Hengstler is responsible for debt
on credit card accounts, American Express must demonstrate the existence of a contract with
Hengstler concerning the credit card accounts on which the debt accumulated. Bridges, 154 Wn.
App. at 728. A valid contract requires an objective manifestation of mutual assent to its terms,
which generally takes the form of offer and acceptance. Yakima County (W. Valley) Fire Prot.
Dist. No. 12 v. Yakima, 122 Wn.2d 371, 388-89, 858 P.2d 245 (1993). The offeror is the master
of the offer and may propose acceptance by conduct. Discover Bank v. Ray, 139 Wn. App. 723,
727, 162 P.3d 1131 (2007).
Here, American Express’s unsigned cardmember agreements in the account records
provided that the use of the credit card constituted acceptance of its terms: “When you use the
Account (or you sign or keep the card), you agree to the terms of the [Credit Card] Agreement.”
CP at 28.
Because the cardmember agreements are unsigned, they do not by themselves prove the
existence of a contract. But in the absence of a signed agreement, establishment of a defendant’s
personal acknowledgement of a credit card account is prima facie proof of assent to the terms of
usage offered by the bank. See Bridges, 154 Wn. App. at 727. Thus, the question before us is
whether the attached account records provided sufficient evidence to demonstrate that Hengstler
personally acknowledged the debt on the credit card accounts. “The use of a credit card, if
sufficiently detailed and itemized, constitutes acceptance of terms clearly stated in a cardmember
agreement.” Stratman, 172 Wn. App. at 673.
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This case is similar to Stratman, 172 Wn. App. at 667. There, the court upheld a superior
court order granting summary judgment in the bank’s favor where American Express provided
the date and amount of individual purchases made by Stratman, as well as the name of the entity
from whom the goods or services were purchased. The court held that “the information
contained in Stratman’s account statements provided a sufficient basis ‘to match the listed
amounts with [a] particular charge slip or purchase.’” Stratman, 172 Wn. App. at 674 (quoting
Citibank v. Ryan, 160 Wn. App. 286, 247 P.3d 778 (2011)).
Similarly here, the account statements provided by American Express show detailed and
itemized usage of and payments on each account by Hengstler. In contrast, Hengstler offers no
facts or evidence to contradict the statements. As such, we hold that American Express
sufficiently proved the existence of valid contracts with Hengstler, no issues of material fact
existed, and summary judgment was appropriate.
III. AUTHORITY AND ASSIGNMENT
Hengstler also alleges that American Express never authorized this lawsuit or assigned
Hengstler’s debt to counsel. In Stratman, 172 Wn. App. at 676, Stratman made a somewhat
similar argument, citing RCW 4.08.080 as authority, which the court rejected:
Stratman argues that defense counsel did not have the “authority” to represent
American Express pursuant to RCW 4.08.080. But RCW 4.08.080 involves the
authorization of an assignee of a debt to file suit in its own name as long as such an
assignment is in writing. American Express did not assign Stratman’s debt; it is
attempting to collect on its own behalf. RCW 4.08.080 does not apply.
Similarly here, American Express did not assign Hengstler’s debt. Rather, it is attempting to
collect on its own behalf, and therefore RCW 4.08.080 does not apply and Hengstler’s claim
fails.
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IV. SUBJECT MATTER JURISDICTION
Hengstler argues that the court misapplied the rules of civil procedure, and consequently,
it was deprived of subject matter jurisdiction. We disagree.
The critical concept in determining whether a court has subject matter jurisdiction
pursuant to CR 12(b)(1) is the “type of controversy.” Dougherty v. Dep’t of Labor & Indus. for
State of Washington, 150 Wn.2d 310, 316, 76 P.3d 1183 (2003). If the type of controversy is
within the subject matter jurisdiction, then all other defects or errors go to something other than
subject matter jurisdiction. Dougherty, 150 Wn.2d at 316. The superior court has original
jurisdiction in cases in which “the demand or the value of the property in controversy amounts to
three hundred dollars.” RCW 2.08.010.
Here American Express presented a claim against Hengstler with billing records and
supporting affidavits from Morales-Arias verifying that the accounts were Hengstler’s, that he
was in default and that the amount owed was $31,592.05. The superior court had subject matter
jurisdiction over this type of case— a civil dispute with over $300 in controversy. RCW
2.08.010. Thus, Hengstler’s argument fails.
V. PRO SE PLEADING
Hengstler argues that the superior court erred by holding him to the same standards as an
attorney, rather than construing his pleadings liberally. We disagree.
In federal court, pro se pleadings receive liberal construction. Pouncil v. Tilton, 704 F.3d
568 (9th Cir. 2012); see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652
(1972). But in Washington courts, a superior court “must hold pro se parties to the same
standards to which it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d
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No. 48603-2-II
1187 (2010). This is a procedural rule; federal procedural rules do not control in state courts.
Adams v. LeMaster, 223 F.3d 1177, 1182 n.4 (10th Cir. 2000). Thus, the Washington rule
applies and the superior court held Hengstler to the proper standard.
VI. OTHER ARGUMENTS
Hengstler also argues that American Express’s entry into credit card agreements with
Hengstler was ultra vires for exceeding its authority as a national bank under 12 U.S.C. § 24
(2008), and American Express failed to validate Hengstler’s debt pursuant to 15 U.S.C. § 1692
(1997), the Fair Debt Collection Practices Act. However, Hengstler raises these issues for the
first time on appeal. Generally, we will not consider an issue raised for the first time on appeal.
RAP 2.5. As a result, we do not consider Hengstler’s additional arguments.
In sum, we disagree with Hengstler’s arguments on appeal and affirm the superior court’s
order granting American Express’s motion for summary judgment.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Lee, J.
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