IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
AMERICAN EXPRESS BANK, F.S.B., ] No. 72301-4-1 ro Respondent,

v. DIVISION ONE
JERRY HOANG, UNPUBLISHED OPINION CO Appellant. ) FILED: Julv 20, 2015 Spearman, C.J. —Appellant Jerry Hoang appeals the trial court's grant of summaryjudgment on his credit card debt to respondent American Express Bank, F.S.B. ("Amex"). He argues that the trial court erred by considering declarations that should have been excluded and in finding that no genuine issue ofmaterial fact precluded summaryjudgment. We find no error and affirm. FACTS On March 4, 2013, Amex filed suit alleging that Jerry Hoang failed to pay a debt he had accrued on his Amex issued credit card. Hoang, proceeding pro se, 

### answered and propounded discovery requests to Amex. Amex submitted its 

### responses in a timely manner. Hoang sent a letter to Amex asking for discovery responses to be supplemented so that he could "find out the fact of who have 

### (sic) standing to this lawsuit and who is the legal owner of this alleged credit card account...." Clerk's Papers (CP) at 138. Hoang filed a motion for sanctions and 

### motion to compel discoverywithoutfulfilling the meet-and-confer requirements of CR26(i). The trial court denied Hoang's motion on June 6, 2014. Hoang movedNo. 72301-4-1/2
for reconsideration ofthe trial court's denial of sanctions. The trial court denied Hoang's motion. On March 7, 2014, the trial court denied Hoang's "emergency motion to dismiss" based on lack of subject matterjurisdiction. CP at 53-64; 200-
201. On May 13, 2014 Amex moved for summaryjudgment inthe principal amount of $19,109.62, plus filing and service fees. CP 202-204. Amex waived its right to attorney fees. In support of its motion, Amex submitted a declaration from Linda Salas, assistant custodian of records for American Express Bank, FSB. Attached to the declaration were copies of Hoang's account statements from 

### June 21, 2010 to February 16, 2013, copies ofchecks that Hoang submitted as 

### payment, and a cardmember agreement in effect at the time Hoang's account

was closed. Amex also submitted a declaration from counsel with exhibits in support ofthe motion for summaryjudgment. 

### Hoang opposed the motion and submitted the affidavit ofWilliam 

### McCaffrey, a consultant forHousing Mortgage Consultants, Inc. On July 8, 2014, the trial court granted Amex's motion for summary judgment. Hoangfiled a motion for clarification and reconsideration, which was denied. Hoang appeals. DISCUSSION 

### Proceeding pro se on appeal,1 Hoang challenges the order granting summary judgment on a number ofbases. We review an order of summary

1Hoang first asks the courtto considerhim much more liberally because he is unrepresented, citing federal cases thatallow for reasonableopportunity toremedy defectsin pleadings. Aswith all prose litigants, Hoang isproperly held to the same standard as an attorney. Westbera v. All-Purpose Structures. Inc.. 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).No. 72301-4-1/3 judgment de novo, engaging inthe same inquiry as the trial court. Ranger Ins. Co. v. Pierce Ctv., 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary 

### judgment is proper ifthe records on file withthe trial court show "there is no genuine issue as to any material fact" and "the moving party is entitled to a 

### judgment as a matter oflaw." CR 56(c). As in the trial court, we construe all facts and reasonable inferences in the lightmost favorable to the nonmoving party. Michael v. Mosquera-Lacv, 165 Wn.2d 595, 601, 200 P.3d 695 (2009). 

### In reviewing summaryjudgment orders, we consider supporting affidavits and other admissible evidence that is based on the affiant's personal knowledge. 

### CR 56(e); Grimwood v. Univ. ofPuaet Sound, Inc., 110Wn.2d 355, 359, 753 P.2d 517 (1988). A party may notrely on mere allegations, denials, opinions, or 

### conclusory statements but, rather must set forth specifics indicating material facts
for trial. Id. 

### Hoang first objects to thetrial court'sconsideration ofthe affidavit of Amex's records custodian, Linda Salas.2 Hoang argues that the affidavit is 

### hearsay andattempts todiscredit her as awitness. Wereview whether a statement is inadmissible hearsay de novo. State v. Edwards, 131 Wn. App. 611, 

### 614, 128 P.3d631 (2006). "Hearsay" is "a statement, other than one made bythe declarantwhile testifying at the trial orhearing, offered in evidence toprove the 2Hoang also takes issue with the factthat "the only witness presentatthe time ofthe 

### hearing on motion for summaryjudgmentwas the opposing counsel; no witness from Amex Bank waspresenttotestify." Br. ofAppellant at21. ButCR 56(c) allows thesuperiorcourttogrant 

### summaryjudgmentwithouthearing testimony, based on only "pleadings, depositions, answers to interrogatories, and admissions onfile, togetherwith theaffidavits.
. . ." Only after summary 

### judgment"should the matterproceed to trial and allow [a party] to disprove such facts by crossexamination andby thedemeanorofthemoving party while testifying." American Ex. Centurion Bank v. Strathman, 172 Wn. App. 667, 676, 292 P.3d 128 (2012).No. 72301-4-1/4 truth ofthe matter asserted." ER 801(c). Hearsay is inadmissible unless itcomes within an exception established by statute or common law. ER 802; State v. Kirkpatrick, 160Wn.2d873, 881,161 P.3d 990 (2007). Under the business records exception, documents containing hearsay may be admissible ifthe (1) are in record form; (2) are of an act, condition, or event; (3)
are made inthe regular course ofbusiness; (4) are made at or near the time of 

### the act, condition or event; and (5) the court must be satisfied that the sources of information, method, and time ofpreparationjustify admitting the evidence. RCW 5.45.020; State v. Zieqler, 114 Wn.2d 533, 538, 789 P.2d 79 (1990) (citing State

v. Krick, 86 Wn.2d 112, 118-19, 542 P.2d 782 (1995). 

### While the appellate record contains onlythe last twopages of the affidavit, the included pages contain testimony that Salas has "personally reviewed 

### American Express' records concerning defendant JERRY HOANG," and that American Express maintainscomputerized records of the amounts due and 

### owing toAmerican Express for anytransactions thatoccurwhen an individual
uses an American Express credit card. The computerized records reflect all debits and credits in connection with the use of an American Express credit card." CP 205. She also testified that the attached CardmemberAgreement was 

### a "[t]rue andcorrectcopy oftheCardmemberAgreement in effect at thetime of cancellation" ofHoang's account and that the attached monthlystatements were also "true and correct copies of the monthly Account Statements for the defendant's Account for the period 6/21/10 to 1/22/13." CP at 205. Based on her titleas "Assistant Custodian ofRecords" and her testimony inthe record, we findNo. 72301-4-1/5 

### the trial court did not abuse its discretion in admitting the Cardmember Agreement for Hoang's account and the monthly account statements as business records. See Discover Bank v. Bridges. 154 Wn. App. 722, 726, 226 P.3d 191 (2010) (business records admissible where employees testified that they had
access to defendant's account records inthe course of their employment, they made their statements based on personal knowledge and review of those records, and that the attached records were true and correct copies made in the ordinary course of business). Moreover, nowhere does Hoang dispute that the cancelled checks were payments made by him on the account; he disputes only that he became indebted to Amex and that there is a past due amount of $19.0109.62. Hoang then attempts to discredit Salas by baldly asserting that Amex "was created on December 1, 2000. Linda Salas claims to work for Amex Bank. Any statement made by Salas referring to Hoang's account would have to reflect and 

### rely on the opening date ofthe account which is November 22, 1996. . . ." Br. of Appellant at 20. He cites to no evidence nor any authority for his argument that 

### any statement about his account would have to reflect the opening date. Finally, Hoang asks the court to take judicial notice of the findings of a federal court case where Salas also testified, yet fails to provide a copy ofthe purported findings for the court's consideration. We decline to review Hoang's additional claims of error 

### regarding Salas's affidavit because he has failed to provide an adequate record

on appeal.No. 72301-4-1/6 Hoang next argues that the trial court erred when itadmitted the declaration of Donna Smith, counsel for Amex. According to him, Smith served
as both advocate and witness, in violation ofthe aptly-named advocate-witness rule. He also argues that Smith "cannot authenticate any document in this case since counsel has no personal knowledge of any alleged transaction in this matter." Br. ofAppellant at 6; 23. He also contends the declaration's "'Statement of Facts' are hearsay and not based on firsthand knowledge, but on review of
someone else's documents." Br. ofAppellant at 23. We reject each ofthese arguments. The advocate-witness rule "'prohibits an attorney from appearing as both a witness and an advocate inthe same litigation.'" State v. Lindsay, 10 Wn.2d 423, 437, 326 P.3d 125 (2014) (quoting United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985)). RPC 3.7(a) provides: A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; (3) disqualification ofthe lawyer would work substantial hardship on the client; or (4) the lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate. The Smith declaration contains testimony about facts regarding service, venue, 

### Hoang's status as a nonmember of the armed forces, and Amex's decision to waive its right to attorneys' fees. Hoang does not contest any of the matters discussed in the declaration; the testimony therefore falls squarely within the exception provided in RPC 3.7.No. 72301-4-1/7 Hoang cites to Williams v. Dist. Court, El Pasco Cty., 700 P.2d 549, 553 (Colo. 1985), but that case is not analogous. In Williams, the discovery of new evidence resulted in defendant's counsel being called as a witness adverse to his
own client. The trial court denied the motion to quash subpoena and the court of 

### appeals reversed. Here, we have an affidavit setting forth facts regarding the records ofservice, an attestation ofvenue, and information regarding counsel's 

### search into Hoang's status as a person in the military service. This is not 

### testimony that is adverse to her client or that would implicate the rules regarding counsel serving as a witness. Furthermore, an attorney's affidavit is entitled to the same consideration as any other affidavit based on testimonialknowledge. American Linen Supply Co. v. Nursing Home Building Corp., 15 Wn. App. 757, 

### 763, 551, P.2d 1038 (1976). Legal conclusions and other surplusage in affidavits 

### are to bedisregarded butthe rest oftheaffidavit may beproperly considered. Id, Hoang also argues that the courtimproperly considered Smith's declaration because Smith lacks personal knowledge of the underlying transaction and therefore cannot authenticate any of the attached documents. He also contends the declaration's "'Statement ofFacts' are hearsay and not based 

### onfirsthand knowledge, but onreview ofsomeone else's documents." Br. of 

### Appellantat23. Neitherargument hasmerit. First, the "StatementofFacts" is not part ofSmith's declaration and ismerely argument in support ofthemotion based on a briefsummary ofinformation contained in the affidavit ofLinda Salas, the custodian ofrecords for Amex. Since the statement simply summarizes 

### admissible evidence properly before thecourtthetrial courtproperly consideredNo. 72301-4-1/8 it. Second, the only documents Smith's declaration attempts to authenticate are 

### the certificate that Hoang is not an infant, incompetent or in the military and a series ofcancelled checks reflecting Hoang's payments on the account. The certificate, which is required when seeking a defaultjudgment, is irrelevant to a summaryjudgment proceeding. Thus, even assuming itwas improperly before the court, it was immaterial to the court's decision. Hoang next argues that there are disputed issues offact about whether Amex is the real party in interest. He claims that his account has been securitized and that Amex has no interest or privity because it is no longer the account holder. Even viewing the facts in the light most favorable to the non-moving party, we find no error in the trial court's finding. Hoang claims that it is undisputed fact that "American Express Bank, FSB

was created on December 1, 2000 under the name American Express Personal Trust Services, F.S.B., FDIC Certificate number 35328. On January 29, 2004, American Express Personal Trust Services, F.S.B. changed its name to 

### American Express Bank, FSB and continues to operate under the same FDIC Certificate number."3 Br. ofAppellant at 18. But, even assuming this to be true, 

### whether Amex changed its name one or more times is immaterial to whether it
owns Hoang's debt.
3Hoang argues that the McCaffrey affidavit establishes that his account had been held in an American Express Master Trust Series 1996-1 Trust, and that as a result, Amex could not have any interestin the subject debt. Amex argues that the McCaffrey affidavitfails to establish that he has any expertise or personal knowledge on the alleged securitization. The record before us does not show that Amex moved to strike the affidavitwhen Hoang submitted it to the trial court, however, and therefore did not preserve the error forappeal. Ifa party fails to object or bring a motion to strike deficiencies in affidavits or other documents in support of a motion for summary judgment, the party waives any defects. Smith v. Showalter, 47 Wn. App. 245, 248, 734 P.2d 928 (1987). 8No. 72301-4-1/9 Likewise, there is no merit in Hoang's argument Amex has no ownership interest because the debt has been "securitized." First, Hoang offers no evidence 

### to dispute Salas's testimony that the debt "has not been sold or assigned by 

### American Express, the original creator of the account." CP at 205. But even ifthe debt had been securitized, itwould still not create a disputed material issue. 

### Securitization "merelycreates a 'separate contract, distinctfrom a [plaintiffs'] debt 

### obligations' under the note and does not change the relationship ofthe partiesin 

### anyway . . . ." In reNordeen, 459B.R. 468, 479(9th Cir. BAP 2013). (Citations omitted). We agree with the trial court's conclusion that Hoang's "arguments 

### attacking theplaintiff's standing tobring suit... arewithout merit." CP at 183. Amex has established ownership of the account and associated debt through the 

### cardmember agreement and thedeclaration ofits records custodian. Hoang has
not shown to the contrary. 

### Hoang makes a number of other arguments, none ofwhich are 

## persuasive. He claims thatthe trial courtlacks subjectmatterjurisdiction overthe dispute but provides no basis for his claim. In its orderdenying his motion to dismiss, thetrial courtfound thatHoang's motion was "based on hisargument 

### thattheplaintiffhasno standing tobring this action. Butin essence, Mr. Hoang attacks thestrength oftheplaintiff's proof. His brieffocuses on his beliefthatthe contractalleged to be atissue hasnot been properly proved. This is not anissue 

## ofsubjectmatterjurisdiction." CP at201. Wefind no errorin the trial court's reasoning.No. 72301-4-1/10 Hoang argues that discovery was not completed and that he is entitled to additional responses under Local Civil Rule 37. He argues thatjudgment "is premature under CR 56(f) because there remain genuine issues of material fact that can be resolved only through discovery." Br. ofAppellant at 27. Hoang did not bring a motion for additional discovery under CR 56(f) and cannot raise this issue for the first time on appeal. RAP 2.5(a). Hoang also argues that his due process rights were violated because the trial court did not enter findings offact and conclusions of law in its order granting summaryjudgment. Br. ofAppellant at 9. He cites to no legal authority to support his contention. To the contrary, CR 52(a)(5)(B) specifically provides that findings offact and conclusions of law are not necessary in decisions on motions for 

### summaryjudgment. The rule reads "Findings of fact and conclusions of law are not necessary: (B) ... [o]ndecisions of motions under rules 12 or 56. . . ." Hoang has not shown how the rule violates his due process rights. 

### Finally, Hoang argues that one corporate entity cannot represent another but cites no authority for this argument. We decline to consider it and affirm the trialcourt's order granting summaryjudgment in favor of Amex.
Affirm.

WE CONCUR: 

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