Opinion
No. 53520-0-I.
Filed: July 6, 2004.
Appeal from Superior Court of King County. Docket No: 03-2-27482-8. Judgment or order under review. Date filed: 11/14/2003. Judge signing: Hon. Patricia H Aitken.
Counsel for Appellant(s), William U Bruch (Appearing Pro Se), 12650 NE 7th Street, Bellevue, WA 98004.
Counsel for Respondent(s), William George Suttell, Suttell Associates, 7525 SE 24th St. # 310, Mercer Island, WA 98040.
William Bruch appeals the trial court order granting summary judgment for the Bank of America on its complaint to collect past due credit card debt. Bruch contends that summary judgment was improper because the only evidence before the court was the declaration of a bank employee that was not based on firsthand knowledge. We disagree and affirm.
Bank of America filed a complaint against Bruch, alleging that he owed $10,544.43 in past due credit card debt. The Bank moved for summary judgment and, in support, filed the declaration of Constance Curtis, who declared that: in her capacity as a Bank of America employee she has under her supervision and control all the Bank's books regarding Bruch's account; she knows from personal knowledge that the books are kept in the ordinary course of business and that it is the regular practice to record all transactions when they occur; she has reviewed the books regarding Bruch's account (identified in the complaint and Curtis's declaration by its 16-digit identification number); as of September 9, 2003, he had an unpaid credit card debt of $10,544.43 with interest accruing at a rate of 21.99 percent per annum; based on the credit card agreement, Bruch was responsible for attorney fees and costs; and the 'foregoing statements [were] true and correct to the best of [her] knowledge and belief subject to the penalty of perjury and the laws of the State of Washington.' Bruch sought discovery. He also filed a motion to strike Curtis's declaration and in opposition to summary judgment. Bruch asserted that the amount due was incorrect due to accounting errors, although he provided no details in support of this assertion or evidence to support it. The thrust of his argument was that the debt was illegal and void as usurious and fraudulent. In support of his motion, Bruch apparently filed certain unidentified SeaFirst/Bank of America documents. These documents are not in the record on appeal. He did not file a declaration or any other evidence in opposition to summary judgment.
Bruch's arguments included that the interest rate exceeded the permissible statutory rate, the original transaction was void because Bank of America was not authorized to lend credit, and the contract was void due to lack of consideration. He also argued that he may have a claim for breach of contract against the Bank for not lending 'lawful money.'
The superior court entered judgment for Bank of America in the amount of $12,911.73 ($10,544.43, plus interest of $1,463.30 and attorney fees of $700).
Bruch appeals, arguing that no evidence was admitted through a fact witness having personal knowledge of Bank of America's claim and that Curtis's declaration is inadequate because she can attest only to knowledge that an account exists, but has no firsthand knowledge of the account beyond 'awareness.'
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. The facts must be interpreted in the light most favorable to the nonmoving party, but where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment is appropriate. When the moving party meets its initial burden, the burden shifts to the nonmoving party, who may not rest upon mere allegations or denials in his pleadings, but must set forth specific facts showing there is a genuine issue for trial.
CR 56(c). Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 65-66, 837 P.2d 618 (1992).
CR 56(e). Hiatt, 120 Wn.2d at 66.
CR 56(e) requires that affidavits submitted in summary judgment proceedings be made on personal knowledge, set forth such facts as would be admissible in evidence, and affirmatively show that the affiant is competent to testify to the matters stated. Bruch is correct that mere awareness of or familiarity with the matter attested to is insufficient; the affiant's personal knowledge is required. But Curtis's declaration was made as a Bank of America employee and based on her personal knowledge of Bank of America's books and records kept in the ordinary course of business and recorded at the time of the Bruch's credit card transaction.
Marks v. Benson, 62 Wn. App. 178, 182, 813 P.2d 180 (1991).
Guntheroth v. Rodaway, 107 Wn.2d 170, 178, 727 P.2d 982 (1986); Marks, 62 Wn. App. at 182.
See RCW 5.45.020 (Uniform Business Records As Evidence Act); State v. Hines, 87 Wn. App. 98, 100, 941 P.2d 9 (1997) (business records exception to hearsay rule authorizes admission of otherwise inadmissible records provided they are made and kept in the ordinary course of business).
Bank of America moved for summary judgment and filed Curtis's declaration in support. Bruch opposed summary judgment on several theories he does not renew on appeal. He also moved to strike Curtis's declaration, but his objection to the declaration is not well taken, and he failed to set forth any facts showing a genuine issue for trial.
Affirmed.
ELLINGTON and BECKER, JJ.