                                                                                                                  x.. 11 ED
                                                                                                         COURT yE APPEALS
                                                                                                              3f', f81om, i

                                                                                                                              9: 26
       IN THE COURT OF APPEALS OF THE STATE OF W

                                                   DIVISION II

TWINSTAR CREDIT UNION,                                                              No. 436(


                                       Respondent,


          V.




TANANA          L.        CANZONI           and    AMAS                    UNPUBLISHED OPINION
CANZONI, wife and husband and the marital
community composed thereof,




                                             Canzonil

          JOHANSON, A. C. J. — Amas                      appeals the superior court' s order granting summary


judgment to TwinStar Credit Union in this                replevin   and    breach    of contract    action.   See VRP


 May     25, 2012)   at   3, 9.    Canzoni   raises several   issues.    Holding that Canzoni' s arguments have

no merit, we affirm.



                                                         FACTS


                      I. CREDIT UNION' S COMPLAINT AND MOTION TO SHOW CAUSE

          On March 8,         2012, TwinStar Credit Union ( Credit Union) filed                     a"   complaint for

                                                                                2
replevin/ monies      due"        against   Amas   and    Tanana        Canzoni .     Clerk'   s   Papers ( CP)     at   6


    capitalization omitted).       The Credit Union alleged that the Canzonis had entered into a " VISA

loan    agreement"    with the Credit Union, that they had failed to make payments, and. that the



1 Tanana Canzoni, Amas Canzoni' s late wife, was also a party to this action.
2
    Tanana Canzoni        passed   away in April 2012.
No. 43609 -4 -II



amount   owing   as of   February      27, 2012,   was $   2, 987. 01.    CP   at   7.   It further alleged that it had


financed the Canzonis' car purchase and that the Canzonis' payments were delinquent as of

November 12, 2011.        The Credit Union asked the court to order a show cause hearing at which

the Canzonis should be required to show cause why they should not turn the vehicle over to the

Credit Union; the Credit Union also requested a deficiency judgment, interest on any judgment,

and attorney fees and costs.3
         In support of its complaint, the Credit Union attached the following documents:

          1)     A copy      of a "               Debit Card Agreement —Acknowledgement,"
                                      VISA Credit /                                                                       signed




                                                                                                        CP          12.     The
                               naming Amas Canzoni
     Tanana Canzoni                                             as   another   authorized      user.          at
by                       and




agreement /acknowledgement stated:



                 By signing below, I /we acknowledge receipt of and agree to the terms and
         conditions of the VISA Credit /
                                       Check Card Agreement and Disclosure applicable
         to the Card     program.      I / e grant the Credit Union a security interest in all of
                                         W
         my /our share accounts, now and in the future, to secure my /our obligations under
         the Agreement.


CP at 12 ( emphasis omitted)..


          2)     A             of   the " VISA            Check
                                                   Credit /              Card Agreement."              CP    at    13 (    some
                      copy


capitalization   omitted).     This agreement included a promise to pay and described what would

occur if the Canzonis defaulted.


          3)       A copy of a " Disclosure Statement and Agreement" between the Credit Union and

the Canzonis, which was signed by the Canzonis, and a copy of the related " Note and Security


 3
  The Credit Union also attached a sworn and notarized statement from Diane Sokolik verifying
the complaint on behalf of the Credit Union as allowed, but not required, under CR 11( a).




                                                            2
No. 43609 -4 -II




Agreement Provisions."                CP     at   20 -21 (   some capitalization omitted).              This document included a


security agreement stating that the Canzonis' vehicle was security for a $ 24, 546. 02 loan.

         Also on March 8, the Credit Union filed a motion for order to show cause on the replevin

issue.   Attached to this motion was a sworn statement from Rachel Russell stating that ( 1) the

Canzonis        entered     into   a purchase agreement             to   purchase    the   vehicle, (   2) the Canzonis had failed


to pay     as   required      under    the    agreement, (         3) the Credit Union was the lawful owner and was


entitled   to    possession, and (         4) the       vehicle' s value was        approximately $ 11, 475.        The statement


identified Russell as " a representative of the plaintiff in this matter" but did not specify the basis

of   her knowledge          or exact   relationship to the Credit Union. CP                    at   27. The Credit Union noted a


hearing on the replevin action for April 13.

                        II. CANZONI' S RESPONSE AND ATTEMPTS TO DISCHARGE THE DEBT

           On April          11,   Canzoni         filed     an    untitled    document, stating: " THE RUNNING OF

PRESCRIPTION                 ENDS HERE AND NOW.                               THERE IS NO ADEQUATE COMPLETE


REMEDY AT LAW."                       CP     at   35.    Other than these two sentences, the rest of the document


consisted       of (   1)   several   blank       pages      and   Canzoni'    s   signature    as "   General Executor, General


Administrator for AMAS CANZONI ESTATE," CP at 43; and ( 2) a page with a United States


Postal Service postage stamp in each corner, which stated,

                                                    TRUST SPECIAL DEPOSIT


           Notice as to declarative intent and purpose of this tendered payment under Trust
           Special Deposit order, ab initio, of the general grantor / ayor /beneficiary and is to
                                                                    p
           be credited to the depositor' s account as accord and satisfaction and payment in
           full and discharge /extinguish any and all debts and all " liabilities ".

 CP at 44. That page was otherwise blank.




                                                                         3
No. 43609 -4 -II




       At the April 13 hearing, the parties addressed a service issue; the Credit Union formally

served Canzoni in court. The superior court continued the matter until May 18.

       On April 16, Canzoni             mailed     the Credit Union two           checks ( one   for $ 3, 200, the other for


 12, 816. 11) drawn on an account with Olympia Federal Savings and with Anchor Savings Bank.

                                                                 EFTI4l
On the front       of   each   check,    Canzoni      wrote, "              ONLY"       and "    FOR DISCHARGE OF




4 Electronic Funds Transfer. An electronic funds transfer is:
        any transfer of funds, other than a transaction originated by check, draft, or
        similar     paper      instrument, which is         initiated through an electronic terminal,
        telephonic instrument, or computer or magnetic tape so as to order, instruct, or
        authorize a      financial institution to debit      or credit an account.          Such term includes,
        but   is    not     limited     to,          of sale
                                               point -  -            transfers,    automated      teller   machine


        transactions, direct deposits or withdrawals of funds, and transfers initiated by
        telephone. Such term does not include --
                    A) any check guarantee or authorization service which does not directly
        result in a debit or credit to a consumer' s account:
                    B)    any transfer       other than those processed by automated
                                              of   funds,
        clearinghouse, made by a financial institution on behalf of a consumer by means
        of a service that transfers funds held at either Federal Reserve banks or other
        depository institutions and which is not designed primarily to transfer funds on
        behalf of a consumer;
                    C) any transaction the primary purpose of which is the purchase or sale of
        securities or commodities through a broker -dealer registered with or regulated by
        the Securities and Exchange Commission;
                    D) any automatic transfer from a savings account to a demand deposit
        account pursuant to an agreement between a consumer and a financial institution
        for the purpose of covering an overdraft or maintaining an agreed upon minimum
        balance in the consumer's demand deposit account; or
                    E) any transfer of funds which is initiated by a telephone conversation
        between a consumer and an officer or employee of a financial institution which is
        not pursuant to a prearranged plan and under which periodic or recurring transfers
        are not contemplated;



        as determined under regulations of the Bureau.


 15 USCA § 1693a ( footnote omitted).




                                                                 M
No. 43609 -4 -II




DEBT."         CP     at   217.     On the back     of each check,             he   wrote, "     NOT FOR DEPOSIT EFT ONLY,"


and "   FOR DISCHARGE OF DEBT."                                CP   at   218.       He also signed the back of each check as an


 AUTHORIZED                   REPRESENTATIVE,"                      and    wrote "         WITHOUT          RECOURSE"             under   his


signatures.          CP at 218.


              On April 23, the Credit Union' s counsel returned these checks to Canzoni and advised


him that the Credit Union                      would      not    accept        the    payments         because Canzoni'      s"    additional




endorsement           stating ` authorized        representative without recourse "'                    was placed improperly on the

document and the " without recourse" language " could arguably mean that the Credit Union has

waived        its   right   to     collect   back the legal fees           and costs expended."              CP   at   71.   On April 29,


Canzoni        reissued "        the two EFT instruments," correcting the                          apparent errors and       a    third " EFT


instrument" for legal fees; each of these " instruments" were drawn on an account with Anchor

Savings Bank. CP at 59, 219


              On May 9, Canzoni filed               a   document titled: " Reply                 re:   Complaint for Replevin/ Monies


Due"      and "     Order to Show Cause            re:    Replevin."'           CP   at   46 ( some     capitalization omitted).      In this


filing,   Canzoni          stated      that ( 1) he had   acquired " secured              financial interest[ s]" in the VISA account


and the vehicle by making payments on the credit card and the vehicle debt, and ( 2) because he

had     a "   secured       financial interest" the Credit Union could not repossess the vehicle without



5
    Canzoni         also   filed   a   document    entitled "    Original Bill in              Equity." CP at 79 ( some capitalization
omitted).           This document            appears      to   reiterate    many          of    the arguments made in the " Reply,"

discusses his          apparent " re- recording of motor vehicle                          title" in the name of the Amas Canzoni

Estate, and accuses the Credit Union and its counsel of violating " their Oath of Office and their
Duties as Public Officers."   CP at 86. Other than one issue touching on the Credit Union' s

counsel' s authority, Canzoni does not appear to raise any issues related to this filing in this
appeal.




                                                                           E
No. 43609 -4 -II




proving its    case   at   trial.        CP   at   47.     Canzoni       also (   1)   objected to Diane Solkolik' s statement


verifying the Credit Union' s original complaint as hearsay; and ( 2) objected to Rachel Russell' s

sworn statement, apparently because the statement did not establish that Russell had direct

knowledge     of   how the Credit Union' s loan                    or payments were " monetized"                  or   funded. CP at 47.


Canzoni then       appeared         to   argue      that    although      the Canzonis had          signed " an alleged purchase




agreement,"     there was no " proof' that the Credit Union " incur[red] any loss" because ( 1) there

was no proof     that the    automobile " cost              the bank      a    dime," and ( 2) the Credit Union was willing to


 discharge [ the]     debt" and had done so because it had accepted Canzoni' s " EFT instrument[ s]."

CP at 48.


         In   support of     his     arguments,            Canzoni      attached several        documents: ( 1)         an " Affidavit of


Status," attesting to, among              other      things, his     own "      firsthand knowledge" of the facts, CP at 51;


 2)   an " affidavit of secured           financial interest in tangible property,"                 stating that he had a $ 40, 000

secured     interest in     the     vehicle         based     on   his    payments       and     other        factors, CP   at   54 (   some




capitalization     omitted);        and (     3)    a    document titled, " EFT instrument AFFIDAVIT OF Amas


Canzoni," in       which    Canzoni           states     that the Credit Union            had    accepted       two " Electronic Funds


Transfer ( EFT) instrument[ s]"                    from him to " discharge [ the] debt" associated with the VISA


account and the vehicle loan and that the Credit Union' s acceptance of these instruments had

fully   discharged his debts.                 CP    at   58 -60.   Canzoni        also   attached (      1)   a December 10, 2011 to


January 9,     2012 VISA          statement          showing       an    ending balance         of $3,    037. 98; ( 2) a Credit Union


statement for- the period February 1, 2012 through March 31, 2012, showing an outstanding

balance on the vehicle loan account of $12, 276. 74.




                                                                          on
No. 43609 -4 -II



         On May 11, the Credit Union notified Canzoni that ( 1) the three EFT payments had been

returned by Anchor Savings Bank because Anchor Savings Bank was unable to locate the

account they were drawn on, and ( 2) it (the Credit Union) had reversed those payments from his

accounts.



         On   May     15, Canzoni    moved    to   postpone    the    May   18   hearing.      Canzoni again alleged that


the   debts to the Credit Union had been " discharged."                   CP     at   206.    In support of this filing, he

filed ( 1) a copy of an April 10, 2012 through May 9, 2012 VISA account statement reflecting a

 3, 139. 91 " Payment EFT DEPOSIT,"                and a zero remaining balance on the account, CP at 209;

 2) the May 11 letters and other documents from the Credit Union advising the Canzonis that

their   payments     had been     returned   from Anchor Savings Bank;                  and (   3)   copies of the payment


instruments Canzoni had issued to the Credit Union, drawn                              on    Anchor Savings Bank.          The


superior court apparently rescheduled the hearing for May 25.

         On    May     17, the Credit Union filed       a "[   s] tatement" from Tami Clark, Account Solutions


Officer for the Credit Union, addressing the EFT instruments or checks that Canzoni had

presented     for   payment on    his   account.   CP   at   225.    The "[ s] tatement" is in the form of a letter to


the Credit Union' s counsel from Tami Clark, stating that Canzoni had mailed the Credit Union

three   checks, " with a signature endorsement and                  the words ` Not for Deposit', ` EFT only', ` For



Discharge     of    Debt',   and ` without recourse'     on    the back     of each check."          CP   at   226.   She stated


that the checks were processed as electronic fund transfers on May 8, but that Anchor Savings

Bank refused to process the payments because the bank was unable to locate a related account.

The Credit Union later verified that the Anchor Savings Bank account the checks had been




                                                               7
                                                              I




No. 43609 -4 -II



drawn     on    had been       closed   in December 2007.              Clark attached copies of the three checks to her


statement.




          On     May      23, Canzoni filed       a    document titled, " Answer to Statement of Tami Clark[;]


Motion for           Discovery[;   and] (   Motion to Dismiss Summons                       and     Complaint)."     CP at 230 ( some


capitalization         omitted).     In this pleading, Canzoni acknowledged that the Credit Union had
advised him that Anchor Savings Bank had returned his payment documents because the account


they    were     drawn        on was    not   found.        He did     not       challenge     Clark'    s    statements.     Instead, he


appeared        to    argue   that the Credit Union had               improperly        handled the " EFT instrument[ s]"            and




that these documents discharged. his debts to the Credit Union.                                     CP   at   233 -34.   He also stated,


    Plaintiff   or    Contract Agents',       TWIN STAR CREDIT UNION, including Tami Clark' s opinion

regarding the submitted EFT instruments is not fact or evidence before this court ( Trinsey v.
                                                                             6
Pagliaro)[, 229 F.             Supp. 647 (     E.D. Pa. 1964)]). "                CP   at    234.     He never challenged Clark' s


statement as          hearsay. Canzoni also asserted that " DIANE SOKOLIK' s, RACHEL RUSSELL' S

opinions       do    not represent   facts    provable      in this   court."      CP   at   234 -35. In addition, he appeared to


argue that the Credit Union had not presented any evidence of the contracts or agreements.

Specifically, he          asserted      that there    was     no "    genuine certified copy of a contract/ agreement,




6
 Trinsey held, in part, that a defendant' s motion to dismiss for failure to state a claim that is not
supported by affidavits or depositions is incomplete because it asks the court to consider facts
outside the record that have not been presented as required under Federal Rules of Civil
Procedure 12( b)( 6) ( failure to             state   a claim upon which relief can                      be    granted),    and CR 56( c)

    summary judgment). 229 F.Supp.                    at   649. It    also   held, " Statements of counsel in their briefs or

argument while enlightening to the Court are not sufficient for purposes of granting a motion to
dismiss or summary judgment." Trinsey, 229 F. Supp. at 649.




                                                                       1
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No. 43609 -4 -II



sworn and attested to by a responsible party legally authorized to contract on behalf of the

aforementioned       Plaintiff." CP at 231.


                               III. MAY 25 HEARING AND SUPERIOR COURT ORDER


         At the May 25 hearing, the Credit Union' s counsel stated that he had received and

reviewed Canzoni' s filings; described the Credit Union' s arguments and the evidence it had

submitted to support the Credit Union' s claims and to rebut Canzoni' s arguments; and asked the

superior court to issue ( 1) an order of replevin for the vehicle and a deficiency judgment pending

determination   of    the      vehicle' s value, and (      2)   an order   for " judgment   on   the VISA     card."   VRP .


 May    25, 2012)    at   9.    Although Canzoni responded by asking that the superior court allow his

 paperwork [   to]   speak      for itself,"   he did not challenge any of the Credit Union' s evidence. VRP

        25, 2012)         9. Instead, citing generally to " the UCC             and   banking     laws   or regulations,"   he
 May                 at



appeared to argue that the payment instruments he had given the Credit Union, were not properly

processed and    that these instruments              had " discharged" his debts.      VRP ( May 25, 2012) at 10 -12.

Canzoni    also mentioned          his "   motion    for   discovery," and asserted that he had " rebutted all [ the

Credit Union'   s]    so- called     facts"    and   that it     was now    the Credit Union'     s   burden to " prove that


these   facts have any      merit."    VRP ( May 25, 2012) at 11.

         The superior court entered an order of judgment and replevin in the Credit Union' s favor.

The order awarded the Credit Union possession of the vehicle, a deficiency judgment once the

vehicle was sold, a $ 2, 987. 01 judgment on the credit card debt, interest, costs, and attorney fees.

 Canzoni appeals.




                                                                   0
Z6     6011%    n



                                                        ANALYSIS


                                                I. STANDARD OF REVIEW


       Because it appears that the superior court considered the Credit Union' s and Canzoni' s

motions as summary judgment motions, we apply the summary judgment standards on review.

                  When reviewing a summary judgment order, we review the evidence in a
       light    most   favorable to the nonmoving party. Herron               v:   Tribune Publ' g Co., 108
       Wn.2d 162, 170, 736 P. 2d 249 ( 1987).                 Mere allegations or conclusory statements
       of facts unsupported by evidence do not sufficiently establish such a genuine
       issue. Baldwin         v.   Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769
       P. 2d 298 ( 1989).          In addition, the nonmoving party " may not rely on speculation,
       argumentative assertions that unresolved factual issues remain, or on having its
       affidavits considered at          face     value."   Seven Gables Corp. v. MGM/UA Entm' t Co.,
           106 Wn.2d 1,       13, 721 P. 2d 1 ( 1986).        After the moving party submits adequate
       affidavits, the nonmoving party must set forth specific facts rebutting the moving
       party' s contentions and disclose that a genuine issue of material fact exists. Seven
           Gables, 106 Wn.2d at 13, 721 P. 2d 1.


Discover Bank v. Bridges, 154 Wn. App. 722, 727, 226 P. 3d 191 ( 2010).

                                   II. CREDIT UNION' S COUNSEL' S STATEMENTS


           Canzoni first argues that the Credit Union' s attorney was acting as a witness during the

May   25   hearing._ We   disagree.        Our review of the record from the May 25 hearing shows that the

Credit Union' s counsel presented argument based on the evidence that was before the superior

court. Accordingly, this argument fails.

                                                        III. HEARSAY


           Canzoni     next    argues      that    exhibits   A ( the   VISA       Credit / ebit
                                                                                          D        Card Agreement-


Acknowledgement           and      the   VISA              Check
                                                    Credit /        Card Agreement)          and   B ( the   Disclosure


Statement      and   Agreement       and   the "   Note and Security Agreement Provisions) attached to the

Credit Union' s      original complaint were           inadmissible because    they   were   hearsay.   Our review of




                                                               10
No. 43609 -4 -II



the clerk' s papers and the verbatim report of proceedings does not show that Canzoni objected to

these documents on hearsay. grounds. Accordingly, he has waived this issue. RAP 2. 5( a).

                                                IV. EXISTENCE OF CONTRACTS


          Canzoni next appears to argue that the documents before the superior court did not

establish    any      contractual agreements.           Canzoni' s argument is difficult to follow, but he appears


to   argue   that the Credit Union              did   not   show    that   it   provided      any "   consideration,"      apparently


because the Credit Union did not produce books showing that it paid anything out of its own

assets   to benefit the Canzonis.                See Br.     of   Appellant      at    12.    But the Credit Union presented


copies of the loan and VISA agreements that the Canzonis signed, Canzoni did not object to

these exhibits in the superior court, Canzoni does not dispute that he or his wife signed these

agreements, and nothing in the record shows that the Credit Union did not pay the vendors that
                                                                                                                       7
accepted     the Canzonis'         credit card or     the   car   dealer. This        argument   is   without merit.




                                                  V. NO DISCHARGE OF DEBT


          Canzoni next appears to argue that any debt to the Credit Union was discharged once the

Credit Union accepted the payment instruments drawn on Anchor Savings Bank. We disagree.




7 Canzoni also appears to assert that the contracts were not valid because the Credit Union did
not sign them, but he does not present any argument related to this assertion. " Passing treatment

of an    issue   or   lack   of reasoned argument           is insufficient to        merit   judicial   consideration."     Holland

v. City of Tacoma, 90 Wn. App. 533, 538, 954 P. 2d 290, review denied, 136 Wn.2d 1015 ( 1998);
see   also    RAP       10. 3(   a)(   6).   To the extent Canzoni presents any argument, he reiterates his
argument that the Credit Union gave no consideration. As stated above, we reject that argument.
Furthermore, were we to address this argument, Canzoni does not show that the credit card and
loan agreements were not valid unilateral contracts.    And, to the extent Canzoni presents
additional argument or issue in his reply, we decline to address arguments raised for the first
time in      a responsive        brief.      Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828
P. 2d 549 ( 1992).




                                                                    11
No. 43609 -4 -II



           Canzoni attempted to pay his debts by issuing checks drawn on a closed account with

Anchor Savings Bank.              He appears to argue that these payment instruments were some form of


legal tender, but he cites no law establishing that payment instruments, regardless of whether he

characterized them as EFTS, drawn on a closed or non -existent bank account can discharge any

debt. Accordingly, this argument also fails.

                                                VI. ADDITIONAL ARGUMENTS


           Canzoni also appears to question the superior court' s jurisdiction and to argue that ( 1) he

was   denied due          process, (   2) the   superior court was      biased, ( 3) the Credit Union' s counsel failed


to disclose his relationship to the Credit Union or to the court, and ( 4) the superior court denied

him his right to discovery. For the most part, these claims are not supported by any argument, so

we    do   not    address     them.     Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P. 2d 290

  Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial

consideration. "), review          denied, 136 Wn.2d 1015 ( 1998);            see also    RAP 10. 3(   a)(   6).   To the extent


he is arguing that the superior court erred in granting summary judgment without first allowing

him the additional discovery he requested in his May 23 filing, two days before the hearing, this

argument         fails.     Although Canzoni briefly mentioned his discovery motion at the May 25

hearing,     the    superior     court    did   not   directly   address   Canzoni'   s   discovery    motion.        We have,


however, reviewed the discovery request and hold that none of the discovery items Canzoni

requested were            necessary to     resolve     this   matter.   His requests either related to materials the


Credit Union had already disclosed or to matters that would have no bearing on the issues before

the superior court.




                                                                  12
No. 43609 - -II
          4



        We affirm.


        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.




                                                               Johanson; A.C. J.
We concur:



                            42
                     ljgen, J.


                       Maxa, J




                                               13
