                                                                                               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 HEINZ HENGSTLER,                                             UNPUBLISHED OPINION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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No. 48603-2-II


          “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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No. 48603-2-II


                            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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No. 48603-2-II


         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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No. 48603-2-II


                               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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