First National Bank of Omaha v. Gilchrist

• Decision Date: 18 October 2016
• Docket Number: 47474-3-II
• Parties: FIRST NATIONAL BANK OF OMAHA, Respondent, v. DAVID T. GILCHRIST, Appellant.
• Court: Washington Court of Appeals

FIRST NATIONAL BANK OF OMAHA, Respondent, v. DAVID T. GILCHRIST, Appellant.

No. 47474-3-II

Court of Appeals of Washington, Division 2

October 18, 2016

UNPUBLISHED OPINION

JOHANSON J.

David T. Gilchrist appeals the superior court's denial of his motion to dismiss a credit card collection action brought by First National Bank of Omaha (FNBO). Gilchrist also appeals the trial court's grant of summary judgment in FNBO's favor. We hold that the superior court did not err when it denied Gilchrist's motion to dismiss nor did it err when it granted FNBO's motion for summary judgment and awarded FNBO attorney fees. We affirm.

FACTS

I FNBO's Complaint and Gilchrist's Motion To Dismiss

In February 2014, FNBO filed a complaint for moneys due. FNBO alleged that Gilchrist entered into a credit card agreement with FNBO under which Gilchrist agreed by use of the credit account to make regular monthly payments. FNBO asserted that Gilchrist used the account, now owed $4, 302.44, and that the account was in default.

In early-October, Gilchrist moved to dismiss FNBO's complaint under CR 12(b)(1) for lack of subject matter jurisdiction and CR 12(b)(6) for failure to state a claim upon which relief can be granted. The superior court ruled that because Washington is a notice pleading State, FNBO was not required to produce all evidence at this stage. The superior court noted that FNBO's records custodian's affidavit stated that FNBO possessed billing records and an account number for Gilchrist, such that there was evidence of an agreement between the parties. The superior court further noted that the absence of an agreement from the pleadings was not dispositive because contracts can be formed without a written document. The superior court denied Gilchrist's motion to dismiss, holding that it had subject matter jurisdiction and that a claim for relief was established.

II. Request For Admissions

In November, FNBO submitted a request for admissions to Gilchrist. Gilchrist responded that he had contacted Scot Mayo, FNBO's recovery manager, and demanded that FNBO provide him with various types of written information regarding the alleged agreement and debt. Gilchrist stated that because FNBO did not provide him with this information, he was unable to admit or deny that (1) he had a credit account with FNBO, (2) the account number ended with 9716, (3) he had ever used the credit account to make purchases, (4) he had ever received billing statements for the account, (5) he had ever failed to make timely payments on the account, and (6) there was a balance due on the account. Gilchrist admitted the last four digits of his Social Security number and that he received mail at his address on 21st Avenue, Longview.

III. Summary Judgment Motion

In January 2015, FNBO moved for summary judgment. In support of its motion, FNBO offered declarations from Mayo. Mayo stated that he is a collections manager and a custodian of records for FNBO and that he made a complete and thorough review of the account records for Gilchrist.^[1] Based on his review, Mayo stated that Gilchrist and FNBO entered into an agreement in which FNBO extended credit to Gilchrist in exchange for Gilchrist's agreement to pay. Mayo stated that Gilchrist's Social Security number ends with 8455 and Gilchrist had an account with FNBO, number ending with 9716.

Mayo stated that FNBO maintained a computerized payment history for Gilchrist onto which the debits from purchases and credits arising from use of the account were posted. FNBO mailed monthly billing statements to Gilchrist, and Gilchrist did not object to these statements. Because Gilchrist failed to perform the contractual obligation of making prescribed installment payments on the account as they became due, FNBO declared the entire balance due and payable and demanded payment thereof. The amount of $4, 302.44 was due, and Gilchrist failed to pay. An employee of FNBO spoke to Gilchrist, assured him that the account on his credit report was his account, and explained that FNBO provides an encrypted account number to credit bureaus to protect his account information.

Mayo also attached billing statements for each month between May 2012 and April 2013. All of the statements contain Gilchrist's name and all of the 2013 statements include his address on 21st Avenue, Longview. The 2012 statements are all addressed to a Longview P.O. Box address. Online payments were made for the months of May, July, August, September, October, and December 2012, and January 2013. The statements list where purchases were made, the exact amounts, and that all of the purchases occurred in Longview or Kelso. Each statement notes when payment was due, the interest rates, and fees charged for late payments. Each statement also lists procedures for cardholders to use in order to refute any charges made on the account. The account had a $4, 000 credit limit that was exceeded as of the April 2013 statement with $4, 302.44 due. None of the statements say the account was closed.

Mayo also attached an April 2013 card member agreement, but neither Mayo nor the agreement stated that the agreement reflected the specific terms of Gilchrist's account when it was opened or for any period before April 2013.

Gilchrist opposed FNBO's motion for summary judgment. He filed an affidavit, three credit reports, and correspondence between him, FNBO, and Patenaude & Felix.

In his affidavit, Gilchrist did not deny the FNBO account belonged to him or that he made the charges or payments to the account in the billing statements. Rather, Gilchrist stated that he possessed a letter in which Patenaude & Felix stated that the debt from the alleged account was assigned to them and that he demanded a full validation of the amount owed to FNBO. Gilchrist stated that his credit reports did not show this account.

FNBO's attorney, Matthew Cheung, filed a reply declaration. Cheung stated that he is an associate at Patenaude & Felix and that Patenaude & Felix had not purchased or been assigned Gilchrist's debt, but was simply representing FNBO.

In March 2015, the superior court granted summary judgment on all issues except what were the applicable terms and conditions of the agreement. With respect to that issue, the superior court stated that FNBO had not met its burden to demonstrate the April 2013 agreement terms and conditions applied to Gilchrist. The superior court addressed each of Gilchrist's remaining arguments in its written decision. The superior court awarded FNBO $4, 302.44 and $3, 600.00 in attorney fees. Gilchrist appeals.

ANALYSIS

I. Gilchrist's Motion To Dismiss FNBO's Complaint

Gilchrist argues that the superior court erred when it denied his motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. We disagree.

A. Superior Court Had Subject Matter Jurisdiction

First, Gilchrist argues that the superior court erred when it denied his motion to dismiss for lack of subject matter jurisdiction pursuant to CR 12(b)(1) because FNBO had failed to attach a copy of the credit card agreement to the complaint. We disagree.

We review de novo a motion to dismiss under CR 12(b)(1). Evergreen Wash. Healthcare Frontier LLC v. Dep 't of Soc. & Health Servs., 171 Wn.App. 431, 444, 287 P.3d 40 (2012). 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., 150 Wn.2d 310, 316, 76 P.3d 1183 (2003) (quoting Marley v. Dep't of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)). '"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 (internal quotation marks omitted) (quoting Marley, 125 Wn.2d at 539). The trial 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.

In February 2014, FNBO filed a complaint for moneys due. FNBO alleged that Gilchrist entered into a credit agreement with FNBO that Gilchrist agreed to by use of the credit account to make regular monthly payments. FNBO asserted that Gilchrist used the account, that he now owed $4, 302.44, and that the account was in default.

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, Gilchrist fails to show that the superior court lacked subject matter jurisdiction. Dougherty, 150 Wn.2d at 316.

B. FNBO Stated a Claim Upon Which Relief May be Granted

Next Gilchrist argues that the superior court erred when it denied his motion to dismiss for FNBO's failure to state a claim upon which relief could be granted pursuant to CR 12(b)(6). Again, we disagree.

We review de novo a trial court's ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6). Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). Dismissal is warranted only if the court concludes beyond a reasonable doubt that the plaintiff cannot prove any set of facts that would justify recovery. Rodriguez v. Loudeye Corp., 144 Wn.App. 709, 717, 189 P.3d 168 (2008).

Such motions to dismiss should only be granted '"in the unusual case in which plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief" Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988), aff'd, 113 Wn.2d 148, 776 P.2d 963 (1989)). The court's inquiry is normally confined...