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Discover Bank v. Lemley

Court of Appeals of Washington, Division 3

March 18, 2014

Discover Bank, Appellant,
Maurie L. Lemley et al., Respondents

Appeal from Spokane Superior Court. Docket No: 10-2-05245-8. Date filed: 08/02/2012. Judge signing: Honorable Linda G Tompkins.

Krista L. White (of Law Offices of Krista L. White & Associates PS ), for appellant.

Kirk D. Miller (of Kirk D. Miller PS ) and Michael D. Kinkley (of Michael D Kinkley PS ), for respondents.

AUTHOR: George B. Fearing, J. WE CONCUR: Kevin M. Korsmo, C.J., Teresa C. Kulik, J.P.T.


Fearing, J.

[180 Wn.App. 122] ¶ 1 Discover Bank filed suit against Maurie and Linda Lemley, husband and wife, for failing to pay a credit card debt. The trial court granted the Lemleys' summary judgment motion, ruling that Discover Bank failed to present admissible evidence establishing the Lemleys entered into a contract, let alone owed the bank the alleged $5,729.28. Discover Bank appeals the summary judgment order. The principal issue raised by the parties on appeal concerns the qualifications needed by an affiant on behalf of a major credit card company to identify the controlling contract with the debtor and establish the amounts owed, in response to a summary judgment motion. We do not address this issue but instead remand the case to the trial court for another summary judgment hearing. At the new hearing, the court should consider the affidavits despite their not being labeled in opposition to the Lemleys' summary judgment motion, unless they are inadmissible or should be stricken, in whole or in part, on other grounds.

Page 206


¶ 2 This outline of facts chronologically follows events during this lawsuit. Some of the underlying facts will emerge when identifying and outlining affidavits filed in support of and in opposition to summary judgment motions.

¶ 3 [180 Wn.App. 123] On December 16, 2010, Discover Bank filed suit alleging Maurie and Linda Lemley failed to pay a debt they accrued on their Discover Card. The Lemleys, unrepresented by counsel, responded on January 18, 2011. The response read, in part:

They have double[d] what I borrowed and now [are] asking for 12% interest. I do not think this is fair. I realize I asked for this credit card. But due to circumstances beyond my control. First the plant I worked for for 10 years closed and both myself and my wife lost our jobs. Our house was au[c]tioned off by the bank. We [went] home one night and the locks were changed. Then I find out that the fire I was in, the blood the[y] used to keep me alive, had Hep C in it and was now years after causing me Pain and exhaustion to a point I can no longer work. I am applying for SSD [(Social Security disability)] and have been denied and [am] on reconsideration at the moment.
... .
After letting them know what was going on, they started calling[.] I told them again what was happening. [N]ext week they called again asking me if I could borrow the money from a relative, was there anyway I could get the money. I told them I could not and I was applying for SSD. Next week same thing they would call asking why I was not making payments could I borrow money to pay them. If I did not answer the phone they would call my wife and I 2 to 3 times a[ ]day each sometimes I would answer and they would hang up.

Clerk's Papers (CP) at 10. Counsel later appeared for the Lemleys.

¶ 4 On July 28, 2011, Discover Bank moved for summary judgment. In support of its motion, Discover submitted an affidavit of Patrick Sayers, account manager for DB Servicing Corporation. In the affidavit, Sayers described his qualifications as follows:

I am an account manager in the Attorney Placement Department for DB Servicing Corporation, the servicing affiliate of DISCOVER BANK, ISSUER OF THE DISCOVER CARD, an FDIC [(Federal Deposit Insurance Corporation)] insured Delaware [180 Wn.App. 124] State Bank collectively (" Discover" ). I am responsible for managing and overseeing the Discover accounts that have resulted in contested litigation. Included within the scope of my responsibilities includes [sic] the performance of collection and recovery services. I make this affidavit on the basis of my personal knowledge and a review of the records maintained by Discover with respect to the account at issue. All such records are maintained in the regular course of business at or near the time of the events recorded. I am a Designated Agent and a Custodian of the records.

CP at 15.

¶ 5 In his affidavit, Patrick Sayers testified:

On or about October 01, 2006 Defendant opened a Discover Credit Card. Attached hereto is true and correct copies of the Cardmember Agreement and Application which govern the credit card account at issue, along with periodic statements and evidence of payments on the account. No payments have been made since February 24, 2010, and Defendant has defaulted under the terms of the Cardmember Agreement by failing to make the payments due as required by the agreement.
At the time that the suit was commenced, the principal balance on the account was $5,729.78.

CP at 16. The affidavit was signed in New Albany, Ohio. Contrary to the affidavit, Sayers did not attach any application.

¶ 6 The first page attached to Patrick Sayers' affidavit is a Discover Financial Services " TM SALE DETAIL REPORT." CP at 17. Sayers' affidavit does not identify or explain the nature or content of the report. The report may attempt to document a call, on September 27, 2006, from Maurie Lemley, during which he requested a Discover card.

Page 207

¶ 7 The next 14 pages attached to Sayers' affidavit are a Discover account cardmember account agreement. A date printed on the bottom right-hand corner of each page of the agreement is December 15, 2009, i.e., three years after which Discover contends Maurie Lemley opened an account [180 Wn.App. 125] and two years after which Lemley made his last purchase by a charge on the card. Curiously, the corner also includes the time of 1:37 p.m., which may suggest the date and time is the date of printing the document from a computer, but such date precedes the lawsuit by more than one year. Each page also includes a " second" designation, with the first page starting at 1:37:03 p.m., the last page ending at 1:37:07 p.m., and intervening pages progressing periodically with the second. The attached ...

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