Am. Express Centurion Bank v. Stratman

CourtCourt of Appeals of Washington
Citation292 P.3d 128
Docket NumberNo. 67440–4–I.,67440–4–I.
PartiesAMERICAN EXPRESS CENTURION BANK, Respondent, v. Zaakera R. STRATMAN, Appellant.
Decision Date13 November 2012

292 P.3d 128

AMERICAN EXPRESS CENTURION BANK, Respondent,
v.
Zaakera R. STRATMAN, Appellant.

No. 67440–4–I.

Court of Appeals of Washington,
Division 1.

Nov. 13, 2012.


[292 P.3d 130]


Zaakera Stratman, Duvall, WA, for Appellant.

Malisa Gurule, Ashley Nagrodski, Bellevue, WA, for Respondent.


UNPUBLISHED OPINION

VERELLEN, J.

¶ 1 This is an appeal of a trial court order granting summary judgment for American Express Centurion Bank on its complaint to collect credit card debt from Zaakera Stratman. We conclude the trial court did not err and affirm summary judgment.

FACTS

¶ 2 American Express filed a complaint against Stratman seeking payment of past due credit card debt. Stratman was served with the complaint on October 27, 2010. According to an affidavit of service filed by King County Deputy Sheriff Russell White, Stratman was not at her residence so a copy of the complaint was served on her adult daughter, described as “a person of suitable age and discretion, then resident therein, at the shared residence and usual abode of the named party, by delivering such copy to and leaving it with Saajeda Stratman, adult daughter.” 1 As White was leaving the residence, Stratman arrived and White explained to her why he was there.

¶ 3 On March 30, 2011, American Express moved for summary judgment. Attached as Exhibit A to the motion was the declaration of Paul Lavarta. Lavarta's declaration stated, in relevant part:

2. In declarant's capacity of employment he/she has under his/her supervision and control all of the books and records of the creditor AMERICAN EXPRESS CENTURION BANK with regard to the above-named customer and account and knows from his/her own personal knowledge that said books and records are kept in the ordinary course of business and it is the regular practice to record all transactions on or about the time of occurrence.

3. Declarant has reviewed the books and records with record to the above-referenced defendant and account number and with respect to the indebtedness owed by the above-named defendant, the books and records of the creditor reflect that as of 09/22/1020, there remained due and owing to the creditor on the above-referenced account the sum of $21939.37 with interest accruing as stated in the agreement between the parties thereafter until paid.

4. Declarant further states that the above-referenced customer is responsible for the payment of applicable attorney's fees and court costs as stated in the credit agreement between the parties.2

The declaration was signed under penalty of perjury. Attached as Exhibit B to the motion were copies of Stratman's account statements from July 2009 to July 2010, showing that Stratman had been issued a credit card by American Express and had made both purchases and payments on the account. Each statement was addressed to Stratman at the same address in Duvall, Washington and showed the same account number (redacted to its final six digits). Attached as Exhibit C to the motion was an unsigned document entitled “Agreement Between American Express Credit Cardmember and American Express Centurion Bank.” 3 The cardmember agreement stated, in relevant part:


When you keep, sign or use the Card issued to you (including any renewal or replacement Cards), or you use the account associated with this Agreement (your “Account”), you agree to the terms of this Agreement....

....

[292 P.3d 131]

You promise to pay all Charges, including Charges incurred by Additional Cardmembers, on your Account.4

Stratman responded with a general denial, evidentiary objections, and a challenge to service of process. The trial court granted American Express's motion and entered judgment against Stratman in the amount of $22,238.87 ($21,939.37 plus costs of $299.50). Stratman timely appeals, claiming primarily that she was not properly served and the trial court erred in finding there was no genuine issue of material fact.
DISCUSSION
Service of Process

¶ 4 The ways in which a person may be served with a summons are set forth in RCW 4.28.080. Pursuant to RCW 4.28.080(15), personal service may be made at a person's place of usual abode with someone of suitable age and discretion who resides therein.5 A judgment entered without proper service of the summons and complaint is void for lack of jurisdiction. 6 A plaintiff has the initial burden to produce an affidavit of service that on its face shows that service was properly carried out.7 If the plaintiff makes this showing, the burden then shifts to the defendant to prove by clear and convincing evidence that service was improper.8

¶ 5 American Express provided an affidavit of service showing that service of process was made on Stratman's daughter Saajeda at Stratman's home. The affidavit indicated that Saajeda was an adult who resided in Stratman's home. American Express's affidavit of service is valid on its face. The burden shifts to Stratman to prove by clear and convincing evidence that service was improper. Stratman provides no such evidence. She alleges only that her daughter was 16 years old at the time of service. But RCW 4.28.080(15) does not require that service be made on an adult.9 Rather, the requirement is “someone of suitable age and discretion.” Stratman was properly served with the complaint.

Summary Judgment

¶ 6 When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court.10 Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.11 The initial burden is on the moving party to show there is no genuine issue of material fact.12 The motion must be based on facts that would be admissible in evidence.13 The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue for trial.14 In doing so, the nonmoving party may not rest upon mere allegations or denials.15 We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party.16

[292 P.3d 132]

¶ 7 To prevail on its claim, American Express must demonstrate the existence of a contract with Stratman. A valid contract requires an objective manifestation of mutual assent to its terms, which generally takes the form of offer and acceptance.17 Acceptance of an offer may be made through conduct.18 The use of a credit card, if sufficiently detailed and itemized, constitutes acceptance of terms clearly stated in a cardmember agreement.19

¶ 8 There is no genuine issue of material fact that Stratman used the credit card. The account statements provided by American Express provide 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. For example, on March 14, 2010, Stratman made a purchase from Google in the amount of $2,000. On March 20, 2010, she made purchases from Whole Foods in Redmond, Washington and Super Supplements in Kenmore, Washington in the amounts of $15.77 and $128.12, respectively.

¶ 9 We agree with American Express that the facts of this case are distinguishable from Discover Bank v. Bridges20 and...

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51 cases
  • Volk v. Demeerleer
    • United States
    • Court of Appeals of Washington
    • 13 Noviembre 2014
    ...Courts do not weigh the evidence or assess witness credibility on a motion for summary judgment. Am. Express Centurion Bank v. Stratman, 172 Wash.App. 667, 677, 292 P.3d 128 (2012). Dr. James Knoll is a qualified mental health professional and Ashby does not challenge Knoll's credentials. ¶......
  • Beverly R. Volk the Statutory Beneficiaries Schiering v. Demeerleer, 31814-1-III
    • United States
    • Court of Appeals of Washington
    • 13 Noviembre 2014
    ...Courts do not weigh the evidence or assess witness credibility on a motion for summary judgment. Am. Express Centurion Bank v. Stratman, 172 Wn. App. 667, 677, 292 P.3d 128 (2012). Dr. James Knoll is a qualified mental health professional and Ashby does not challenge Knoll's credentials. Dr......
  • Borton & Sons, Inc. v. Burbank Props., LLC
    • United States
    • Court of Appeals of Washington
    • 16 Julio 2019
    ...a summary judgment motion, a trial court or appellate court must not "weigh the evidence." American Express Centurion Bank v. Stratman , 172 Wash. App. 667, 676, 292 P.3d 128 (2012) ; Arreygue v. Lutz , 116 Wash. App. 938, 940-41, 69 P.3d 881 (2003). Nevertheless, when a party seeks equitab......
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    ...“The initial burden is on the moving party to show there is no genuine issue of material fact.” American Exp. Centurion Bank v. Stratman, 172 Wash.App. 667, 673, 292 P.3d 128 (2012) (citing Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005)). If the movi......
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12 books & journal articles
  • Private sector business records
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2018 Documentary evidence
    • 2 Agosto 2018
    ...papers representing the account of the deceased customer were admissible as business records. American Exp. Centurion Bank v. Stratman , 292 P.3d 128 (Wash.App. Div., 2012). In an action against a cardholder to collect on credit card debt, copies of account statements were admissible under ......
  • Private sector business records
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2019 Documentary evidence
    • 2 Agosto 2019
    ...papers representing the account of the deceased customer were admissible as business records. American Exp. Centurion Bank v. Stratman , 292 P.3d 128 (Wash.App. Div., 2012). In an action against a cardholder to collect on credit card debt, copies of account statements were admissible under ......
  • Private Sector Business Records
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2020 Documentary evidence
    • 2 Agosto 2020
    ...papers representing the account of the deceased customer were admissible as business records. American Exp. Centurion Bank v. Stratman , 292 P.3d 128 (Wash.App. Div., 2012). In an action against a cardholder to collect on credit card debt, copies of account statements were admissible under ......
  • Private Sector Business Records
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2021 Documentary evidence
    • 2 Agosto 2021
    ...papers representing the account of the deceased customer were admissible as business records. American Exp. Centurion Bank v. Stratman , 292 P.3d 128 (Wash.App. Div., 2012). In an action against a cardholder to collect on credit card debt, copies of account statements were admissible under ......
  • Request a trial to view additional results

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