Unifund Ccr, Llc v. Amy Elyse
195 Wash. App. 110
| Wash. Ct. App. | 2016Background
- Elyse opened a Citibank credit card in October 2007; last charge July 2008; last payment November 2009. Citibank sold the account; Unifund later bought it and sued Elyse in 2013 for unpaid card debt.
- Unifund submitted account statements and an unsigned Citibank cardholder agreement dated 2010 as its sole written contract evidence.
- Elyse declared she had no memory or records of receiving any cardholder agreement.
- District court granted Elyse summary judgment, finding Unifund failed to prove assent to a written agreement and that any oral-contract claim was time-barred by Washington’s three-year statute of limitations.
- Superior court reversed on RALJ appeal without stated reasoning; this court granted discretionary review and reversed the superior court, affirming dismissal and awarding Elyse attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Unifund proved a written contract binding Elyse | The 2010 card agreement it produced governs and shows a written contract | The only agreement offered is dated 2010; Elyse’s account activity predates that agreement | Unifund failed to prove Elyse assented to any written agreement; no written contract shown |
| Whether Elyse assented by conduct (card use/payments) to the 2010 agreement | Cardholder agreement terms state use = acceptance; past use/payments show assent | Use/payments occurred prior to 2010 agreement’s existence, so cannot evidence assent to that document | Assent by conduct only binds to the agreement in effect at time of use; Elyse could not have assented to the 2010 agreement |
| Whether South Dakota law (longer limitations) applies via choice-of-law clause | 2010 agreement’s choice-of-law clause brings South Dakota limitations and statutes | Choice-of-law clause is irrelevant unless Unifund proves Elyse assented to that 2010 agreement | Choice-of-law clause in the 2010 agreement not applied because assent to that agreement was not proven |
| Whether Unifund may invoke a different legal theory (accounts receivable statute) on appeal | N/A in district court; argued for first time on RALJ appeal | Raises new theory too late; trial court and parties lacked opportunity to address it | Court declines to consider a new legal theory raised first on appeal; forfeited |
Key Cases Cited
- Morgan v. Kingen, 166 Wn.2d 526 (2009) (plaintiff must prove assent to contract terms to enforce them)
- Discover Bank v. Bridges, 154 Wn. App. 722 (2010) (when an affiliated entity authenticates records and shows access to account records, business records may establish assent)
- Citibank S.D., N.A. v. Ryan, 160 Wn. App. 286 (2011) (unsigned card agreement plus account statements may be insufficient alone to prove assent)
- American Exp. Centurion Bank v. Stratman, 172 Wn. App. 667 (2012) (use of card can constitute acceptance of card agreement in effect at time of use)
- Pulcino v. Fed. Express Corp., 141 Wn.2d 629 (2000) (appellate courts may refuse to consider issues not raised below; RAP 2.5 guidance)