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treating insufficient proof of ownership of debt as a question of standing
Summary of this case from Green v. Portfolio Recovery Assocs.Opinion
No. 36151-5-II.
August 5, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-2-01700-9, M. Karlynn Haberly, J., entered March 2, 2007.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Hunt and Penoyar, JJ.
Jim Ayhan appeals the trial court's order granting summary judgment to Unifund CCR Partners on its breach of contract claim based on an assigned credit card debt from Providian National Bank. Ayhan contends that he is the victim of identity theft; that Unifund failed to show assignment of the debt or that he authorized all of the debt transactions for which it claims payment. Holding that the trial court erred in granting summary judgment to Unifund on the record before us, we reverse and remand with instructions for further proceedings.
FACTS
Providian opened a credit card account for Jim I. Ayhan sometime prior to August 2002. In April 2003, the debt Providian showed on Ayhan's account was at least $7,457.37. The last record of payment Ayhan made on his account was for $200.00 on October 24, 2002, and, thereafter, Ayhan discontinued payments. Providian continued to send billing statements to Ayhan seeking payment until June 15, 2003, when the balance shown was $7,878.66. Ayhan's credit limit was $6,681.00 and the amount owed in excess of that limit was due to accumulated finance charges.
Unifund sued Ayhan on the card debt in 2005 and variously claimed (1) that it purchased Ayhan's debt account from Providian in January 2004 and (2) that Providian assigned it Ayhan's account in May 2005. On June 17, 2005, Unifund served Ayhan with a summons and complaint alleging breach of contract and asserting that "at the instance and request of [Ayhan and his spouse, they] became indebted on said account for goods, services, and monies loaned in agreed amounts, the unpaid balance of which is $10217.35." Clerk's Papers (CP) at 5. The complaint asserted that the debt was $8,064.70, plus interest.
The summons indicated that Ayhan could demand in writing that the lawsuit be filed, but Unifund filed the complaint on July 19, 2005, without Ayhan having made the demand. On that same day, Unifund filed a motion for default judgment because Ayhan had failed to answer. In support of the default, Unifund attached a document entitled "Affidavit of Indebtedness," which was a declaration from Unifund "Media Supervisor," Bharati Lengade, who swore that Ayhan's account had been assigned from Providian and that the debt was valid. CP at 12. On July 20, 2005, the trial court entered an order of default and a judgment against Ayhan, and Unifund commenced efforts to collect the judgment.
On December 8, 2005, Ayhan, acting pro se, filed a motion to set aside the default judgment, asserting that: (1) he did not owe the debt; (2) he tried to answer in June at the courthouse but was told no lawsuit had been filed; (3) he should be allowed to present his side of the issue; (4) Unifund had presented no evidence that he had incurred any debt and that records from Providian would show that he owed no debt; and (5) the complaint should be dismissed with prejudice.
According to Ayhan, within in two weeks of receiving the summons and complaint, he went to the Kitsap County courthouse to file a letter denying the debt, but was told no lawsuit had been filed. He then mailed the denial letter to Unifund's attorney.
According to Ayhan, in April 2003, he called the Providian credit card customer service number to report that his billing statement reflected an overcharge of more than $4,000.00, which he assumed was the result of identity theft. He asserted that the Providian customer service department indicated that it "would take care of the overcharge." CP at 28. He then tried to use the credit card, but use was denied, and he again called Providian and again was told that Providian would take care of the problem with the card. Ayhan declared that he cut up the credit card and returned it to Providian shortly after his April 2003 calls to Providian customer service. Ayhan asserted that he received no further bills from Providian and he assumed that the issue was resolved until he received the Unifund summons and complaint alleging breach of the Providian contract in June 2005.
Unifund agreed to voluntarily vacate the default judgment, but opposed dismissing the complaint. On February 24, 2006, the trial court vacated the default judgment and denied Ayhan's motion to dismiss. On March 16, 2006, Unifund again moved for a default judgment, this time including copies of billing statements from Providian from August 19, 2002, when the balance shown was $5,238.44, to May 19, 2003, when the balance shown was $7,878.66. Billing statements showed one $1,500.00 charge to Star Auto Center in Gig Harbor on September 5, 2002, during that period and two payments on the account — $350.00 on September 4, 2002, and $200.00 on October 24, 2002.
On March 21, 2006, Ayhan, still acting pro se, filed an answer to the complaint and a "Motion for Second Default Judgment and Counter-Motion for Findings Conclusions on Order Vacating Default Judgment." CP at 92. He asked the trial court to adopt what appears to be findings of fact and conclusions of law, stated as findings of fact. He repeated his earlier denials and also stated that he had paid for fraud insurance and that Providian told him that "they would take care of it" when he advised them of the unauthorized charges. CP at 92. He also argued that: (1) Providian had violated state and federal law; (2) the copies of the billing statements were potentially "doctor[ed]," amounted to hearsay evidence, and violated ER 901; (3) Unifund had refused to provide adequate discovery showing proof of his debt; and (4) he had requested a jury trial. CP at 93.
Also on March 21, Ayhan filed, but did not serve, a request for discovery under CR 26 requesting that Unifund provide:
1. The record showing how much Unifund CCR paid for this alleged debt.
2. All transaction records showing signatures or authorizations for each transaction claimed, where the transaction took place, and date and time.
3. Copies of account records from Providian showing time and date of telephone contact from Jim Ayhan in 2003 or 2004, and all action taken on those calls.
4. Copies of records from Providian showing what they did with the credit card insurance claim.
5. Copies of all records from Providian [sic] whatever on this account from 2002 through 2005.
6. Any records of [Unifund's attorneys] showing [the] letter from Jim Ayhan in July 2005, and copy of the letter.
7. Copies of records showing how much [Unifund's attorneys] are being paid by Unifund CCR to collect this debt, whether percentage or hourly.
8. Copies of credit card and credit card insurance contracts between Jim Ayhan and Providian.
CP at 95.
On March 21, Ayhan also filed motions entitled "Demand for Jury and Request for Setting Trial Date" and "Note for Motion Docket," seeking a trial date of March 31. CP at 96, 99. After receiving Ayhan's answer, the trial court struck Unifund's motion for default. Unifund responded to Ayhan's motions by asserting that the findings or conclusions Ayhan requested should not be entered and that it needed time to properly comply with Ayhan's untimely and improper discovery requests.
Unifund then filed a motion for summary judgment on May 16. In response, Ayhan filed a motion that: (1) asked the trial court to compel Unifund to respond to his discovery request; (2) sought additional time to prepare based on the lack of discovery compliance; (3) asserted that credit card fraud precluded summary judgment; (4) restated his earlier motions; and (5) cross-moved for summary judgment without legal argument.
On August 21, 2006, Ayhan filed a second discovery request that included his previous requests with a 36-item questionnaire. Unifund argued that Ayhan's motion to compel should be denied because he had not properly served the discovery request and because he failed to comply with the CR 26(i) discovery conference requirements. On September 1, 2006, the trial court denied Ayhan's motion to compel and denied Unifund's motion for summary judgment without prejudice.
In November 2006, Unifund served Ayhan with a request for admissions and interrogatories. On January 31, 2007, Ayhan filed a "Defendant's Affidavit in Objection to Plaintiff's Interrogatories and Requests for Admissions with Authorities," asserting that because Unifund had failed to comply with his discovery requests, he was declining to comply with theirs. CP at 158. As part of that affidavit Ayhan filed his third written discovery request, restating his earlier requests for records and adding a set of interrogatories.
On February 1, 2007, Unifund filed a second motion for summary judgment. In support, Unifund relied on: (1) the affidavit of Autumn Hopkins, a Unifund agent; (2) a document entitled "Bill of Sale"; and (3) copies of its request for admissions and production and interrogatories. CP at 168. The Hopkins affidavit declared that (1) based on the previously mentioned billing statements and credit card agreement, the debt asserted, $10,114.03 including principal, interest, and finance charges, was valid and (2) it purchased Ayhan's debt to Providian from Providian on May 5, 2005. The "Bill of Sale" stated that "as of January 27, 2004 [the purchase and sale agreement between Providian and Unifund] does hereby sell, assign and transfer to [Unifund] . . . all right title and interest in and to the Accounts listed in the Account Schedule attached." But no "Account Schedule" was attached. CP at 206.
On February 15, 2007, Ayhan filed an answer to the complaint and again asked the trial court to adopt his findings of fact and conclusions of law based on his argument that Unifund had, by failing to comply with discovery requests, provided insufficient proof of the assignment of the debt or that he had authorized all debt transactions. He also filed a series of pleadings, including a response to Unifund's second motion for summary judgment.
His response asserted that (1) Hopkins' motion was hearsay, (2) the bill of sale showing assignment was insufficient, (3) the billing statements were incomplete and did not prove the alleged debt, and (4) genuine issues of fact remained. Ayhan also sought to compel discovery and a continuance until Unifund complied with his discovery requests. He moved to strike all affidavits as hearsay and to strike Unifund's attorney's declaration "for misrepresentation of a material fact." CP at 242. He moved to dismiss Unifund's claim under CR 41(b), again focusing on Unifund's failure to provide discovery. Unifund responded to these motions, pointing to Ayhan's failure to properly comply with the court rules.
At a March 2, 2007, hearing, the trial court did not address Ayhan's motions and stated that Unifund had "provided sufficient evidence that there was an account opened and charges were made." Report of Proceedings (RP) at 6. The trial court then granted Unifund summary judgment and its request for attorney fees. The order, without elaborating, awarded Unifund $11,869.39 in principal and interest on the debt, $239.00 in costs, and $3,366.00 in attorney fees, for a total award of $15,474.39.
Ayhan appeals.
ANALYSIS
On appeal, Ayhan requests that we dismiss Unifund's claim with prejudice or, in the alternative, reverse the trial court's grant of summary judgment and remand with instructions to compel discovery by a date certain and to dismiss with prejudice if Unifund fails to comply with the ordered discovery. Ayhan's pro se appeal also contends that the trial court erred in its denial of various motions he made during the course of the litigation.
I. Standard of Review
We review the trial court's denial of Ayhan's first motion to dismiss, his first motion to compel, and his motion to strike for an abuse of discretion. Snohomish County v. Thorp Meats, 110 Wn.2d 163, 166-67, 750 P.2d 1251 (1988) (dismissal decision is discretionary if motion is not based on a violation of a court rule or order); Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001) (the denial of a motion to compel discovery is reviewed for an abuse of discretion). "'A trial court abuses its discretion when the ruling is manifestly unreasonable or is based on untenable grounds.'" Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
We review a grant of summary judgment de novo. Beaupre v. Pierce County, 161 Wn.2d 568, 571, 166 P.3d 712 (2007). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any "genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c). The party seeking summary judgment bears the burden of establishing its right to judgment as a matter of law, and we must consider the facts and reasonable inferences from the facts in favor of the nonmoving party. Swanson v. Liquid Air Corp., 118 Wn.2d 512, 518, 826 P.2d 664 (1992).
Ayhan's other contentions of error, based on his motion for a continuance to compel discovery, reflect his overarching assertion that Unifund has failed to provide proof of the assignment of the debt or that he authorized the underlying debt transactions. For example, his second motion to compel discovery, submitted as part of his response to Unifund's motion for summary judgment, was based on his claim that the Unifund employee's affidavit and the limited billing statements Unifund offered did not prove that he authorized the disputed debt transactions.
Therefore, because these issues go directly to whether any genuine issues of material fact remained, we review them de novo as part of Ayhan's contention that the trial court erred in granting summary judgment to Unifund. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
II. Ayhan's First Motion to Dismiss, Motion to Compel, and Motion to Strike
The record reflects Ayhan's lack of legal argument and a clear misunderstanding of the court rules and state and federal law. For example, Ayhan's cross-motions were untimely and he failed to comply with proper hearing procedures. Because the record shows that Ayhan failed to comply with the court rules or provide adequate or valid legal argument, the trial court did not abuse its discretion in denying his (1) motion to enter findings of fact and conclusions of law and first motion to dismiss, (2) first motion to compel discovery, and (3) motion to strike. See Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997) ("[P]ro se litigants are bound by the same rules of procedure and substantive law as attorneys.").
Ayhan's second motion to dismiss, filed in conjunction with his opposition to summary judgment, was under CR 41(b)(3) that allows a defendant to move for dismissal after a plaintiff rests. Because this motion was submitted before any trial, it was procedurally deficient on its face, and we do not address it. See Westberg, 86 Wn.App. at 411.
III. Summary Judgment
This is a breach of contract claim and, generally, in order to establish a cause of action involving breach of contract, it is necessary to show "the making and existence of a valid and enforceable contract between the parties; the right of the plaintiff and the obligation of the defendant thereunder; a violation of the contract by the defendant; and the amount of damages resulting to the plaintiff therefrom." Norm Adver., Inc. v. Monroe St. Lumber Co., 25 Wn.2d 391, 398, 171 P.2d 177 (1946). Thus, Unifund, as the party seeking summary judgment, had the burden to show contract breach and damages as a matter of law. Swanson, 118 Wn.2d at 518.
Here, Ayhan has asserted at various times that he (1) used the account at issue, (2) is subject to the Providian contract, (3) did not owe about $4,000.00 which he claimed was the result of mistake or fraud, and (4) discontinued paying on the account. Thus, the existence of the contract, and its application to Ayhan, is not at issue. The record shows that Providian showed a debt of around $7,457.37, and a portion of the debt ($7,457.37 — $4,000.00 = $3,457.37) was admittedly Ayhan's. Therefore, Ayhan's admissions establish (1) the existence of a contract that he entered into with Providian and (2) that he breached the Providian contract by failing to timely pay the undisputed portion of the debt.
Ayhan admitted that "[o]n or about April 13, 2003," he contacted Providian about "my Providian credit card." CP at 28. And at hearing on the motion for summary judgment Ayhan stated: "I [acted] according to the contract with Providian." RP at 4. Ayhan also declared that, in April 2003, he reported an overcharge of more than $4,000.00 to Providian on his credit card account. Finally, Ayhan admits that he discontinued payments and the record shows that the last payment made on the account was in the amount of $200.00 on October 24, 2002.
But, as a threshold matter, Unifund must establish its standing to sue Ayhan on the Providian debt by showing that it had purchased or been assigned Providian's rights under the contract as a matter of law. See, e.g., Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). If Unifund can establish its standing to sue Ayhan, it must also prove the amount of damages caused (here, the debt due) as a result of Ayhan's breach of his contract with Providian. Norm Adver., Inc., 25 Wn.2d at 398.
A. The Contract and the Choice of Law Provision
The contract includes a choice-of-law provision stating that the contract is "governed by federal law and by New Hampshire law." CP at 114. Washington will generally abide by choice-of-law provisions so long as the law of the specified state does not offend Washington's fundamental public policy and Washington does not have a materially greater interest in the outcome. See Truck Ctr. Corp. v. General Motors Corp., 67 Wn. App. 539, 544 n. 3, 837 P.2d 631 (1992); Rutter v. BX of Tri-Cities, Inc., 60 Wn. App. 743, 746, 806 P.2d 1266 (1991). Neither party disputes, nor even mentions, the choice-of-law provision. Neither party offers any New Hampshire statute or case in support of argument. Washington has no special interest in the outcome, no public policy is violated by applying New Hampshire law, and the following comparison of applicable laws shows that any differences are minor and not dispositive of the outcome here.
New Hampshire, like Washington, follows traditional contract law:
Offer, acceptance and consideration are essential to contract formation. Tsiatsios v. Tsiatsios, 140 N.H. 173, 178, 663 A.2d 1335 (1995). "A valid offer may propose the exchange of a promise for a performance. . . ." [ Tsiatsios, 140 N.H. at 178] (quotation omitted). An offer may be accepted by commencement of performance. [ 140 N.H. at 178]. Consideration is present if there is either a benefit to the promisor or a detriment to the promisee. [ Tsiatsios, 140 N.H. at 178].
Chisholm v. Ultima Nashua Indus. Corp., 834 A.2d 221, 225 (N.H. 2003). And the New Hampshire Supreme Court has held that "[t]he terms of a contract are questions of fact to be determined by the trier of fact." Estlow v. New Hampshire Sweepstakes Comm'n, 449 A.2d 1212, 1213 (N.H. 1982).
Under Washington law, chapter 19.16 RCW restricts collection agencies in the collection of debts and does not differ, in pertinent part, from New Hampshire's unfair, deceptive or unreasonable collection practices statute. N.H. Rev. Stat. Ann. § 358-C. The New Hampshire statute states that "[n]o debt collector shall collect or attempt to collect a debt in an unfair, deceptive or unreasonable manner as defined in this chapter." N.H. Rev. Stat. Ann. § 358-C:2.
As to assignment, under New Hampshire law:
"No particular phraseology is required to effect an assignment." In re Dodge-Freedman Poultry Company, 148 F.Supp. 647, 650 (D.N.H. 1956) (quotation omitted). "The ultimate test is the intention of the assignor to give and the assignee to receive present ownership of the claim." [ Dodge-Freedman Poultry Co., 148 F.Supp.] at 650-51 (quotation omitted). "A valid assignment may be made by any words or acts which fairly indicate an intention to make the assignee the owner of a claim." Cosmopolitan Trust Co. v. Leonard Watch Co., 249 Mass. 14, 143 N.E. 827, 829 (1924). "The important thing is the act and the evidence of intent; formalities are not material." [ Cosmopolitan Trust Co., 143 N.E. at 829]. Thus, "[w]hether or not an assignment occurred is a question of fact for the trial court." Gold'n Plump Poultry, Inc. v. Simmons Eng. Co., 805 F.2d 1312, 1316 (8th Cir. 1986).
Premier Capital, LLC v. Skaltsis, 934 A.2d 496, 501 (N.H. 2007).
New Hampshire law does not, however, contain the presumption of assignment validity that is found in RCW 19.16.270. RCW 19.16.270 states that "the assignment of the claim to licensee by his or its customer shall be conclusively presumed valid, if the assignment is filed in court with the complaint, unless objection is made thereto by the debtor in a written answer or in writing five days or more prior to trial." But where "the fact of assignment is put in issue . . . proof of the assignment is essential to a recovery by the assignee" and "[t]he burden of proof of the assignment is on the one claiming to be the assignee." Smith v. Rowe, 3 Wn.2d 320, 323, 100 P.2d 401 (1940). Therefore, under both Washington and New Hampshire law, where, as here, assignment is disputed, proof of assignment is a question of fact. Thus, the choice-of-law provision does not affect the outcome here.
As for federal law, the Fair Debt Collection Act, 15 U.S.C.A. § 1692, restricts only venue stating:
While Ayhan alleges that both Unifund and Providian have otherwise violated federal law, those claims are not before us. Our consideration of federal law is limited to the issues before us.
Any debt collector who brings any legal action on a debt against any consumer shall —
(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity —
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.
15 U.S.C. § 1692i(a). Here, under 15 U.S.C.A. § 1692i(a)(2)(B), venue was proper because the action was brought in the county in which Ayhan resides.
B. Assignment of Debt
This breach of contract claim is based on Unifund's alleged purchase or assignment of Ayhan's debt from Providian; therefore, at the threshold, Unifund, as the party moving for summary judgment, had the burden of establishing its standing by proving its right to sue under the contract as a matter of law. See, e.g., Warth, 422 U.S. at 498-99; Norm Adver., Inc., 25 Wn.2d at 398; Chisholm, 834 A.2d at 225.
In support of its motion for default, Unifund attached a document entitled "Affidavit of Indebtedness," a declaration from Unifund "Media Supervisor" Bharati Lengade, who swore that Ayhan's account had been assigned from Providian and that the debt was valid. CP at 12. Ayhan challenged the claimed assignment and Unifund, to support its second motion for summary judgment, offered a document entitled "Bill of Sale," that stated, as of January 27, 2004, Providian transferred to Unifund certain accounts identified in an attached "Account Schedule." But no "Account Schedule" was attached. CP at 206. And Hopkin's affidavit, submitted at the same time, declared that Unifund purchased the debt from Providian on May 5, 2005, not January 27, 2004, as stated in the "Bill of Sale."
Thus, to overcome Ayhan's challenge to the claimed assignment and to establish its right to sue and obtain a judgment against Ayhan as a matter of law, Unifund submitted only its own employee's affidavits and a conflicting "Bill of Sale" with no name, account number, or any other information identifying Ayhan's debt as having been sold or assigned to Unifund. This evidence is insufficient to establish, under either New Hampshire or Washington law, that Providian assigned the rights and obligations on Ayhan's contract to Unifund. As a result, we are unable to hold, as a matter of law, that Unifund had standing to assert a breach of Providian's contract with Ayhan. Thus, the trial court's grant of summary judgment to Unifund was error.
On remand, Unifund, to prevent summary judgment dismissal of its claim against Ayhan, must present additional evidence relating to its claimed purchase or assignment of Providian's rights under the Ayhan contract.
C. Damages
Although there is some dispute among commentators, credit card contracts can be compared to a series of unilateral contracts. See 1 Arthur L. Corbin, Corbin on Contracts § 2.33, at 300-04 (Joseph M. Perillo rev. ed., 1993). Thus, each time a holder uses a card account to make a purchase, he agrees to pay the issuer under the terms of the contract. But under 15 U.S.C.A. § 1643, a credit card holder's liability for unauthorized use of the credit card is generally limited to $50. And "[i]n any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized." 15 U.S.C.A. § 1643(b). Ayhan asserts that affidavits of Unifund employees and the limited billing statements are insufficient to establish that he authorized all the claimed debt transactions reflected in the account balance.
The term "unauthorized use" is defined as "use of a credit card by a person other then the cardholder who does not have actual, implied, or apparent authority for such use and from which the cardholder receives no benefit." 15 U.S.C.A. 1602(o).
If the card user has actual authority, either express or, more commonly, implied, or if the court finds that the cardholder, either through giving the user possession of the card or otherwise, led others to believe that the user's use of the card was apparently authorized, the cardholder will be held liable for charges incurred by the user. On the other hand, if, by an application of traditional agency principles, it appears that the user had neither actual authority, express or implied, nor apparent authority, the use is deemed to be unauthorized, and the cardholder's maximum liability is limited by statute to $50. And, while the cases have indicated that the presence of actual or apparent authority is ordinarily a question of fact, where the facts are undisputed, and no reasonable trier of fact could conclude that the use was authorized (or unauthorized), a cardholder (or card issuer) is entitled to summary judgment.
12 Richard A. Lord, Williston on Contracts § 35:10, at 194-200 (4th ed. 1999).
Both Washington and New Hampshire courts generally rely on traditional agency principles in contract disputes. King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994); Dent v. Exeter Hosp., Inc. 931 A.2d 1203, 1209 (N.H. 2007). And in both states, whether an agency relationship exists is a question of fact. O'Brien v. Hafer, 122 Wn. App. 279, 284, 93 P.3d 930 (2004); Dent, 931 A.2d at 1209.
Here, Unifund offered billing statements for a limited period of time that do not cover the time period in which Ayhan asserts the fraud occurred. In fact, Ayhan has disputed only about $4,000.00 of the debt. But in addition to failing to prove that it is entitled to sue Ayhan on behalf of Providian, the limited billing statements Unifund relies on fail to establish as a matter of law that Ayhan authorized the total claimed debt. At oral argument, Unifund argued that Ayhan bears the burden to prove that he did not make the disputed charges. But in a motion for summary judgment, the burden rests solely with Unifund, the moving party, to "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); see also Swanson, 118 Wn.2d at 518.
Therefore, even if Unifund can establish its standing to bring the claim, the record fails to show that Ayhan authorized the debt transactions at issue, thus, the trial court erred in granting summary judgment to Unifund on its claim. We remand to allow Unifund the opportunity to present sufficient evidence that Ayhan authorized the debt transactions at issue.
D. Motion for a Continuance to Compel Discovery
At the hearing on Unifund's final motion for summary judgment, Ayhan moved for a continuance and asked the court to compel Unifund to comply with his previous discovery requests for Unifund to provide evidence showing that he had authorized the debt transactions at issue. The court did not address Ayhan's motion and he appeals. In response, Unifund argues that "[i]t is true that the declarant, Autumn Hopkins, did not actually watch Ayhan make purchases or payments on his account, nor did she key each monthly statement[] into Providian's computer system. If that were required, creditors would not be able to collect on most accounts, and commerce would be brought to a standstill." Br. of Resp't at 7-8.
But Ayhan does not argue that an eyewitness to the transactions is necessary. He requested discovery of "[a]ll transaction records showing signatures or authorizations for each transaction claimed." CP at 95. In this electronic age, compliance with a request for signature authorizations may be difficult, particularly in light of the fact that the debt on the card is claimed to have occurred in 2003. But the record shows that Unifund failed to provide sufficient evidence to show even a prima facie claim against Ayhan. And to the extent that Ayhan sought records showing "where the transaction took place, and date and time," as well as information about who made the charge, his discovery request was reasonable and necessary to determine the validity of Unifund's claim against him. Unifund argues only that Ayhan's motion for continuance to compel discovery was procedurally deficient because he failed to comply with the discovery conference requirements of CR 26(i). Because we remand for further proceedings, the parties will have the opportunity to conduct a CR 26(i) discovery conference and the trial court may order sufficient discovery to address the factual issues that remain.
At oral argument Unifund admitted that it made no inquiries of Providian nor did it attempt to ascertain whether Ayhan's account was disputed or satisfied at Providian. It also failed to request any documentation of the debt from Providian.
Unifund asserts that because Ayhan failed to respond to its requests for admissions, those admissions are deemed admitted. CR 36 states that matters not timely denied are deemed admitted. And particularly pertinent here, CR 36(a) states that a "[p]arty who considers that a matter of which an admission has been requested presents a genuine issue for trial or a central fact in dispute may not, on that ground alone, object to the request."
Therefore, we agree that Ayhan's failure to deny Unifund's request for admissions served to admit those facts. But the facts admitted only go to limited billing statements already before the trial court. The admissions do not establish either Providian's sale or assignment of Ayhan's debt to Unifund or that Ayhan authorized the total amount of the disputed debt.
E. Request for Dismissal of Claims
Finally, we address Ayhan's appellate request for dismissal of Unifund's claims.
Summary judgment, when granted, will normally be granted in favor of the moving party. The courts, however, have long held that summary judgment may be granted in favor of the nonmoving party if it becomes clear that he or she is entitled thereto. See, e.g., Rubenser v. Felice, 58 Wn.2d 862, 365 P.2d 320 (1961); Impecoven v. Department of Revenue, 120 Wn.2d 357, 841 P.2d 752 (1992) (summary judgment for nonmoving party entered by appellate court).
. . . .
The principal concern expressed by the courts and the commentators is one of notice and opportunity to be heard. Summary judgment should be entered for the nonmoving party only if the original moving party has had an adequate opportunity [to] present materials and argument in rebuttal. Wright Miller, Federal Practice and Procedure: Civil § 2720.
15A Karl B. Tegland Douglas J. Ende, Washington Practice: Handbook on Civil Procedure § 69.13, at 536 (2007-08 ed.).
We deny Ayhan's request to dismiss Unifund's claims on this record and remand to the trial court for further proceedings, including completion of discovery.
IV. Attorney Fees
Both parties seek attorney fees and costs on appeal. Unifund seeks fees and costs under RAP 18.1 and RCW 4.84.330, which provides that: "In any action on a contract [that] specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract[,] shall be awarded to . . . the prevailing party. . . . As used in this section 'prevailing party' means the party in whose favor final judgment is rendered."
The Providian contract provides that in the event of litigation, the cardholder will pay reasonable attorney fees and costs but, if the card holder should "win the suit, we will pay your reasonable" fees and costs. CP at 113. But Providian is not a party to this suit and Unifund has failed to show assignment or purchase of that contract from Providian. Ayhan seeks an award "for costs, fees, and sanctions" in an amount "not less than $2,000." Br. of Appellant at 21. Here, Ayhan has substantially prevailed on appeal. While we recognize that in Washington, a pro se attorney can recover attorney fees for his own time spent responding to the appeal, we deny his request for fees because the Providian-Ayhan contract is not before us. See, e.g., Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 666-67, 935 P.2d 555 (1997); Leen v. Demopolis, 62 Wn. App. 473, 487, 815 P.2d 269 (1991).
We reverse the trial court's order granting Unifund summary judgment, including all damages, fees, and costs. We remand to the trial court for further proceedings consistent with this opinion.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and PENOYAR, J., concur.