Zachman v. Whirlpool Acceptance Corp.

120 Wash. 2d 304 (1992) 841 P.2d 27

JOHN ZACHMAN, ET AL, Respondents,
v.
WHIRLPOOL ACCEPTANCE CORPORATION, Petitioner.

No. 58059-6.

The Supreme Court of Washington, En Banc.

November 25, 1992. As amended by order February 12, 1993.

Perkins Coie, by Thomas L. Boeder and William A. Kinsel, for petitioner.

Davis, Arneil, Dorsey, Kight & Parlette, by Robert L. Parlette; Lacy, Kane & Richardson, Inc., P.S., by Scott M. Kane, for respondents.

Edward N. Lange, Stephen M. Rummage, and Debora K. Kristensen on behalf of Washington Retail Association, amicus curiae for petitioner.

Kenneth O. Eikenberry, Attorney General, Owen F. Clarke, Jr., Senior Assistant, and Robert F. Manifold, Assistant, amicus curiae for respondents.

Robert H. Whaley, Bryan P. Harnetiaux, and Victoria L. Vreeland on behalf of Washington State Trial Lawyers Association, amicus curiae for respondents.

[As amended by order of the Supreme Court February 12, 1993.]

BRACHTENBACH, J.

This case concerns interpretation of RCW 63.14, the Retail Installment Sales of Goods and Services Act (RISA). The main issue is narrow because it involves specific forms employed by defendant Whirlpool Acceptance Corporation, now known as Whirlpool Financial Corporation (Whirlpool) in two particular transactions. Because plaintiffs have sought class action certification the holding has broader implications if the class is certified on remand.

The trial court granted plaintiffs' partial summary judgment, declaring defendant's financing devices in violation of RISA. Clerk's Papers, at 252-54. Class certification and damages were reserved. We affirm and remand for further proceedings.

This dispute arises from the purchase of a clothes dryer by plaintiffs Zachman and the purchase of a dishwasher by plaintiffs Crossler. The appliances were purchased from different independent retailers; Whirlpool is not a retail seller. Whirlpool financed each purchase. Mrs. Zachman and Mr. Crossler each signed a preprinted form entitled Revolving Charge Plan Agreement. Mrs. Zachman also signed a sales memorandum. The forms are appended to this opinion.

The essence of plaintiffs' case is that Whirlpool's financing instruments are not valid revolving charge agreements under RISA.^[1] If the agreements are not valid revolving charge agreements, they must be either retail installment contracts or lender credit card agreements. Those are the three mutually exclusive types of agreements authorized by RISA. RCW 63.14.010(3), (9), (10). The three types of agreements differ in disclosures required, allowable service charge (essentially interest), and recognition of a security interest in the property purchased.

The disclosures required at the time of purchase are much more detailed and informative for the retail installment contract. See RCW 63.14.020, .030, .120. The disclosure required for a retail installment sale shows the cost of credit because the statute mandates a statement of the sale price and the full credit price. RCW 63.14.040. The minimal disclosure for revolving charge agreements and lender credit card agreements does not reveal the total credit price. RCW 63.14.120.

Revolving charge agreements and lender credit card agreements may charge 1 1/2 percent per month, i.e., 18 percent per year. In contrast, the maximum rate on a retail installment contract varies because it is tied to the 26-week treasury bill rates. Former RCW 63.14.130. In 1992 the maximum rate for a retail installment purchase was 11.75 percent,^[2] rather than 18 percent. The rate differential has been extinguished.^[3]

The third difference is that a lender credit card agreement may not provide for a security interest to secure performance. The others may create a security interest. RCW 63.14.125.

Our review of the granting of a summary judgment is governed by oft-stated rules which need not be repeated. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982).

Before examining in detail the applicable statutes, it is helpful to consider the history of installment sales regulation. The general purpose of such legislation has been summarized thusly:

The principal function of these statutes appears simply to be the protection of credit consumers against excessive gouging by those dealers and financiers who, taking advantage of the public's notorious indifference to finance rates, exact exorbitant charges. That such overreaching is widespread is well known in the business community. Hence, these statutes stand, like the usury acts, above the fluctuations of the credit market, constituting the outer limits, as it were, of fiscal morality.

(Footnote omitted.) Warren, Regulation of Finance Charges in Retail Instalment Sales, 68 Yale L.J. 839, 854 (1958-1959).

[1] As noted above, the retail installment contract requires the most detailed disclosure of the true cost of a credit purchase. This is recognized as the central purpose of the Washington statute:

The central provisions of the Retail Installment Sales Act concern the itemization and disclosure of amounts owed by the buyer.... These provisions are central because they allow the buyer to determine the price of the credit transaction and the price of its various components.

3 Washington State Bar Ass'n, Commercial Law Deskbook § 28.5(4), at SU-28-25 (1987).

The marked differences attaching to the three types of agreements authorized by the statute are consistent with the historical uses thereof:

[T]he disclosure requirements for retail charge agreements and lender credit card agreements, which comprise the principal regulations of such agreements, are much simpler than those applicable to retail installment contracts. The differences in regulation undoubtedly stem from the character of the transactions and perceived abuses and potential abuses with them.

(Italics ours.) 3 Commercial Law Deskbook § 28.5(11), at SU-28-43.

More specifically, the history demonstrates that the type of goods purchased by these plaintiffs, a clothes dryer and a dishwasher, represent the typical retail installment contract transaction. The authors of the Washington Commercial Law Deskbook, more than 20 years after the enactment of RISA, noted this substantial difference:

Retail installment contracts generally have been used in the sale of medium to high-priced items, such as automobiles and major appliances. See Curran, Trends in Consumer Credit Legislation, 11 (1965). A retail charge or revolving charge agreement, on the other hand, is an agreement prescribing the terms under which a buyer may make various credit purchases from a seller from time to time. See, RCW 63.14.010(10).... Revolving charge agreements generally are employed by department and other stores in the sale of items relatively lower priced than those mentioned above (Curran, supra) and frequently involve the use of a charge card.... Some of the substantive and remedial provisions of the Act apply to all three types of retail installment transactions; some, however, relate exclusively to one type or another. The transactions are treated differently because of the different manner of effecting and performing under the agreements.

3 Commercial Law Deskbook § 28.3(1), at SU-28-6, -7.

Those same authors conclude that:

The Act [RISA] expressly excludes retail charge agreements and sales made pursuant thereto from the definition of retail installment contracts. The exclusion exists to avoid subjecting retail charge agreements to provisions of the Act that are not suited to that type of transaction.

(Italics ours.) 3 Commercial Law Deskbook § 28.3(2), at SU-28-7.

There is evidence in the literature, written before the enactment of the Washington statute, that the types of goods here involved were not intended as the subject of a revolving charge agreement such as used by Whirlpool. "The installment account also commonly involves only one purchase, usually of high unit value, while the revolving account presupposes a series of purchases usually of low unit value." Project, Legislative Regulation of Retail Installment Financing, 7 U.C.L.A.L. Rev. 623, 644 (1960). The revolving charge account was "designed primarily to stimulate the sale of soft goods." Its ultimate objective was "to achieve one flexible account covering all purchases except high-priced major appliances." (Footnote omitted.) Robinson, New Developments in Retail Financing, 8 U. Kan. L. Rev. 554, 563 (1959-1960).

The recognized difference in purpose and historical use of the installment contract and the revolving charge agreement is implicit in the greater information and protection to the installment contract purchaser which the Legislature provided in RISA. Typically such purchase would involve items which were relatively high priced and virtual family necessities such as the refrigerator, clothes washer and dryer or stove.

We now turn to the statute. Whirlpool's financing device is valid only if it is a revolving charge agreement which is defined by RCW 63.14.010(10):

"[R]evolving charge agreement," ... means an agreement ... prescribing the terms of retail installment transactions which may be made thereunder from time to time....

(Italics ours.)

It must be noted that the reference is to an agreement, i.e., a single agreement. Subsequent purchases must be made thereunder, that is, under the single, original and only agreement. As demonstrated hereafter that is impossible under the terms of the Whirlpool documents. Further, the definition of revolving charge agreement contemplates more than one transaction because it refers to retail installment transactions under an agreement. RCW 63.14.010(10).

[2] A retail installment transaction must involve a retail seller and a retail buyer. RCW 63.14.010(8). Whirlpool is not a retail seller. Yet the retail transactions which can be financed by a revolving charge agreement are defined as purchases from a retail seller. Whirlpool argues, however, that this analysis must fail because RISA authorizes lender credit card agreements, but such lender credit card issuers cannot be "[p]rincipally engaged in the business of selling goods". RCW 63.14.010(2)(a). Therefore, Whirlpool reasons the revolving charge agreement can be provided by a creditor and is not limited to retail sellers. Reply Brief of Defendant, at 23-24. The plain answer to this argument is that when the Legislature intended that a third party creditor be involved, it so provided. The provisions of RCW 63.14.010(3) specifically authorize the third party's purchase, with the buyer's consent, of the buyer's indebtedness to the retail seller. The indebtedness may be evidenced by a sales slip or memorandum, just as was done in the Zachman purchase. No such third party involvement is mentioned in the revolving charge statutory provisions which, we repeat for emphasis, refer to retail installment transactions and which by definition must involve a retail seller.

Notwithstanding this definitional problem, there is an alternate ground upon which our conclusion rests. Even if the statute were interpreted to permit a creditor to provide the revolving charge agreement, the Whirlpool scheme still violates RISA. As noted above, the statute defines a revolving charge agreement in the singular, i.e., an agreement which prescribes the terms of retail installment transactions (i.e., multiple transactions) thereunder from time to time. RCW 63.14.010(10). "Thereunder" can only refer to the original, one, single revolving charge agreement. Repeat transactions must be made pursuant to that one agreement.

Whirlpool's argument is based on it being the creditor which contemplates repeated extensions of credit under the original transaction. Brief of Petitioner, at 28.

The agreement which plaintiff Crossler signed identifies the parties as follows: "BUYER Anthony Crossler" "SELLER (CREDITOR) Enterprize Mart". It goes on: "The words `we', `us', and `our' refer to the Seller." Clerk's Papers, at 127. The printed form contains this language: "[T]he Seller (Creditor) hereby sells, transfers and sets over to WHIRLPOOL ... this agreement ...." Clerk's Papers, at 128.

There are two reasons why Whirlpool is not a party to a revolving charge agreement contemplated by the statute. First, by the very terms of the agreement the seller-creditor is the retail seller, Enterprize Mart. Second, that seller-creditor assigns the agreement to Whirlpool. If Whirlpool were a party to the agreement and if that agreement (wherein Enterprize Mart is the seller-creditor) provided for future purchases thereunder, it would be an anomaly and an inconsistency for Whirlpool to be assigned that agreement. Thus, Whirlpool is not a retail seller and it is not a party to the so-called revolving charge agreement. It is merely an assignee from the seller-creditor.

The Zachman agreement is different in form. Clerk's Papers, at 124. It identifies the retail seller in that particular transaction, but refers to the purchase of other goods from other sellers authorized by Whirlpool. However, other terms again show it to be at best a hybrid of some sort. There is this statement: "You hereby request that if a credit card is available, that one be issued to you." Clerk's Papers, at 124.

Further, the agreement states: "It is expected that this agreement and purchases made under it will be submitted for approval to Whirlpool...." Clerk's Papers, at 124. Additionally, it refers to goods "described in sales memoranda". Both of these terms are more consistent with lender credit card agreements described in RCW 63.14.010(3). The reference to consent and a sales memorandum are both part of the definition of a lender credit card agreement.

[3] As noted above, the statute defining a revolving charge agreement contemplates multiple transactions under a single agreement. RCW 63.14.010(10). Yet the Zachman agreement provides that all purchases, obviously including future purchases, are not binding on Whirlpool until credit is approved, and only upon approval is the transaction assigned to Whirlpool. Clerk's Papers, at 124. The agreement provides no qualification to approval. It simply reserves to Whirlpool the right of approval, without further notice to the buyer, and only if approved does Whirlpool become involved and then as an assignee.

The Zachman agreement contains an assignment of the "sales memorandum" to Whirlpool. Again, this is consistent with the specific reference in the lender credit card agreement definition with its reference to "a sales slip or memorandum". RCW 63.14.010(3).

Whirlpool argues that its agreements "anticipate and provide for multiple retail transactions rather than a singular retail transaction." Clerk's Papers, at 186 (affidavit of Whirlpool vice-president). That conclusion of law is contradicted by the very terms of the agreements where Whirlpool is not obligated to approve any subsequent purchases. Clearly the agreements do not set a particular amount of credit which would permit additional transactions "from time to time" as set out in RCW 63.14.010(10).

[4] Under the terms of the Crossler agreement it is impossible for the buyer to make additional purchases thereunder as required by RCW 63.14.010(10). That original agreement shows the seller-creditor as Enterprize Mart. No other retailer could sell thereunder because the agreement is assigned to Whirlpool, which is not a retail seller. There could never be subsequent retail installment transactions thereunder because the statute defines such events as involving a retail seller. RCW 63.14.010(8). The fact that in some cases there have been repeat purchases financed by Whirlpool (Clerk's Papers, at 189) does not abrogate the requirements of the statute.

There is a term in both agreements which clearly demonstrates the fallacy of Whirlpool's analysis. RCW 63.14.120 mandates the contents of a revolving charge agreement. Included is the requirement that in the revolving charge agreement the buyer be notified that the buyer, under certain conditions, may cancel any purchase thereunder. The critical point is that the statute requires the buyer to give notice to the seller "at his address shown on the charge agreement. ..." (Italics ours.) RCW 63.14.120(3)(d).

If there is a subsequent retail transaction, as contemplated by the statute, and if it involves another retail seller, as Whirlpool argues is permitted, it is obvious that the address of the seller will be different from that shown on the original agreement. If the subsequent seller uses another Whirlpool agreement, it is equally obvious that the second purchase was not made under an agreement which provides for repeat sales thereunder. In either event, the repeat transaction cannot meet the terms of the statute which describes an agreement with repeat purchases thereunder. RCW 63.14.010(10). The fact RCW 63.14.120(3)(d) refers to the seller (singular) and the address shown on the charge agreement (singular) confirms the theory that the statute contemplates a revolving charge agreement with a retail seller who permits repeat purchases under a single agreement. Whirlpool's scheme would permit multiple sellers under multiple revolving charge agreements. That is not what the statute permits.

[5] Courts traditionally "look through the form of the transaction and consider its substance.'" Whitaker v. Spiegel, Inc., 95 Wash. 2d 661, 669, 623 P.2d 1147, 637 P.2d 235 (1981) (quoting Hafer v. Spaeth, 22 Wash. 2d 378, 383, 156 P.2d 408 (1945)). It is interesting to note that in a reaffirmation agreement, signed after the Zachmans went into bankruptcy, Whirlpool describes its financing arrangement as a "promissory note-security agreement". Clerk's Papers, at 157. That is Whirlpool's own description and hardly comports with a revolving charge agreement.

We hold that Whirlpool's revolving charge agreements, in the two forms here presented, are not valid revolving charge agreements under the terms of RISA.

If these agreements are rather held to be retail installment contracts, they violate RISA because they do not make required disclosures, and they impose a service charge in excess of that permitted by statute. The trial court, in granting summary judgment, held the Whirlpool agreements to be retail installment contracts. Clerk's Papers, at 252-54.

After the Court of Appeals granted discretionary review, plaintiffs moved in the trial court for permission to file a third amended complaint to allege as an alternative ground that the Whirlpool financing arrangement constituted a lender credit card agreement. After submission of briefs and argument, the trial court granted the motion, subject to approval by the Court of Appeals. That approval was given.

[6] Whirlpool now claims error in allowing the amendment, contending it did not have a full opportunity to develop facts relating to a lender credit card agreement theory. Reply Brief of Defendant, at 27. Whirlpool does not suggest what those facts might be which it asserts it did not have an opportunity to present. While plaintiffs cast their original claim for relief in terms of finding the arrangements to be a retail installment contract, the subject of lender credit card agreements was discussed in the briefing. Clerk's Papers, at 203-06. The amendment was within the discretion of the trial court and was confirmed by the Court of Appeals. RAP 7.2(e). We find no error.

If these documents did constitute lender credit card agreements, they would violate RISA because they retain a security interest, prohibited by RCW 63.14.125.

Because of the hybrid nature of Whirlpool's financing device it is difficult to fit the documents within the statutory scheme. However, after determining that they are not valid revolving charge agreements, we agree with the trial court that Whirlpool has created in effect a retail installment contract the terms of which violate RISA. Clerk's Papers, at 250.

The order granting plaintiffs' motion for partial summary judgment and denying defendant's motion for partial summary judgment is affirmed. Clerk's Papers, at 252-54. The matter is remanded for further proceedings.

DORE, C.J., and UTTER, ANDERSEN, DURHAM, SMITH, and JOHNSON, JJ., concur.

GUY, J. (dissenting)

The majority holds that the agreements the Zachmans and Crosslers signed with Whirlpool are not valid revolving charge agreements under the terms of the retail installment sales act (RISA). I disagree.

The majority's principal reason for its holding is what it calls a "definitional problem" with recognizing the Whirlpool agreements as revolving charge agreements. Majority opinion, at 311. According to the majority, the statutory definition of a revolving charge agreement in RCW 63.14.010(10) requires that such agreements be between a retail buyer and a retail seller. The majority then reasons that because Whirlpool is not a retail seller, Whirlpool cannot, by definition, enter into revolving charge agreements. The error in the majority's reasoning is that it is confusing who may enter into a retail installment transaction with who may enter into a revolving charge agreement. Consider closely the definition in RCW 63.14.010(10):

"[R]evolving charge agreement," ... means an agreement ... prescribing the terms of retail installment transactions which may be made thereunder from time to time....

The crucial question is whether under this definition the party providing the financing, the creditor, must be the retail seller in the underlying retail installment transactions. I would answer yes if "revolving charge agreement" were defined to be an agreement between a consumer and a retail seller prescribing the terms of any present or future retail installment transactions between them. That is not the way "revolving charge agreement" is defined in RCW 63.14.010(10). One must keep clearly in view that revolving charge agreements are fundamentally financing agreements; they prescribe the financing terms for retail installment transactions. The creditor under RCW 63.14.010(10) is simply the party providing the consumer with the needed financing to make retail installment transactions. In other words, under RCW 63.14.010(10), "revolving charge agreement" means an agreement between a consumer and a creditor prescribing the terms under which the creditor will provide financing to the consumer for any present or future retail installment transactions between the consumer and retail sellers. There is no requirement in RCW 63.14.010(10) that the creditor under the revolving charge agreement must be the retail seller in the retail installment transactions that are made possible by the financing provided under the agreement. The creditor may be the retail seller, but the statute does not require that. Again, the statute leaves entirely open the possibility that a retail buyer, B, may enter into a revolving charge agreement with a creditor, C, under which C finances B's purchases from a retail seller, S, and where C and S are not the same person.

Thus, contrary to the majority's assertions, the statutory definition of "revolving charge agreement" does not require that only retail sellers may act as creditors under revolving charge agreements. The majority's interpretation is contradicted by other points as well. The majority's argument, in essence, is that because the definition of "revolving charge agreement" in RCW 63.14.010(10) incorporates the definition of "retail installment transaction", only retail sellers may enter into revolving charge agreements. This interpretation is contradicted by the point that the definition of "[l]ender credit card agreement" in RCW 63.14.010(3) also incorporates the definition of retail installment transactions. One cannot infer from this that only retail sellers may enter into lender credit card agreements.^[4] Indeed, the issuer of a lender credit card agreement may not be principally a retail seller. RCW 63.14.010(3).

The majority attempts to address this deficiency in its position by underscoring the fact that RCW 63.14.010(3) specifically authorizes the third party creditor's purchase, with the buyer's consent, of the buyer's indebtedness to the retail seller. Majority opinion, at 311. The majority regards this as showing that when the Legislature intended that a third party creditor be involved, it so provided. This argument misses the point, which is that the majority's reasoning relative to the statutory definition of "revolving charge agreement" leads to a manifestly false conclusion when applied to the corresponding definition of "lender credit card agreement". Moreover, the majority's argument reduces to the proposition that because the definition of "revolving charge agreement" does not explicitly allow that the creditor may be someone other than the retail seller, it follows that only retail sellers may act as creditors; in short, what is not allowed is forbidden. The contrary view seems to me more appropriate. The statute does not prohibit nonretail sellers from providing financing under revolving charge agreements; ergo, they are permitted to enter into such agreements.

There is a further problem with the majority's position. Prior to 1967, RCW 63.14.180 provided that "[a]ny seller who enters into any contract or agreement which does not comply with the provisions of this chapter or who violates any provision of this chapter except as a result of an accidental or bona fide error" shall be barred from the recovery of fees under the agreement. (Italics mine.) Former RCW 63.14.180.^[5] The Legislature amended the quoted phrase in 1967 by, inter alia, replacing the word "seller" with the word "person". Laws of 1967, ch. 234, § 10. I see no other way to interpret this amendment than as indicating the Legislature's intention that persons other than retail sellers may enter into retail installment contracts or revolving charge agreements. It is noteworthy that the Washington State Attorney General interpreted the significance of the 1967 amendment in this way in a 1968 opinion. AGO 6, at 5, 9 (1968) (addressing whether RISA applied to bank card purchases). The majority fails to consider the 1967 amendment. It is an important point, however, and one that squarely contradicts the majority's position.

The majority purports to state an "alternate ground" on which its holding is based. The majority rests this "alternate ground" on the premise that RCW 63.14.010(10) defines a revolving charge agreement in the singular as one financing agreement applying to many retail installment transactions. Majority opinion, at 311. The majority reasons that because of this, Whirlpool would have had to have been a party to the original agreement executed by the Crosslers, which it was not since it received the agreement by assignment from Enterprize Mart. Majority opinion, at 312. In fact, if one looks past the form of the original transaction and considers its substance, Whirlpool clearly was a party to the original transaction because it was in reality Whirlpool, not Enterprize Mart, that was extending the credit to the Crosslers. Ignoring this, however, and adopting the fiction that Enterprize Mart was really the original creditor and Whirlpool received the agreement by assignment, there is no reason to regard this as inconsistent with the fact that RCW 63.14.010(10) defines "revolving charge agreement" in the singular. "An assignment does not change the scope of the contract or agreement on which it is based." Walton v. Severson, 100 Wash. 2d 446, 455, 670 P.2d 639 (1983). Rather, an assignment of full title and interest places the assignee in the shoes of the assignor, giving the assignee whatever rights the assignee had under the agreement. Walton, at 455. Therefore, the assignment from Enterprize Mart to Whirlpool simply placed Whirlpool in Enterprize Mart's shoes. The agreement remained the same. Repeat transactions made possible by the agreement were no less possible under that same agreement once it had been assigned to Whirlpool.

As regards the Zachmans' agreement, the majority asserts that it is consistent with the definition of a lender credit card agreement and inconsistent with the definition of a revolving charge agreement because it made Whirlpool's extension of credit to the Zachmans contingent upon Whirlpool's approval. Majority opinion, at 312. It may be that the Whirlpool agreement is consistent in some respects with the statutory definition of a lender credit card agreement, but that in itself is no reason not to regard it as also consistent with the statutory definition of a revolving charge agreement. The majority's concern over Whirlpool retaining the right to approve future extensions of credit is also unfounded. A creditor may reasonably condition future extensions of credit upon approval in order to enable itself to confirm on those future occasions that the borrower is staying within the originally agreed upon credit limit and maintaining a satisfactory credit history. Requiring such approval is fully compatible with an agreement being a revolving charge agreement. There is evidence in the present case that Whirlpool's right to approve future credit amounted to nothing more than such routine credit checking. For example, the Zachmans' attorneys' secretary stated in a memorandum for her employer's file that she had entered into a revolving charge agreement with Whirlpool, and that she had made a second purchase under her Whirlpool account after giving the retailer only her name, address, and Social Security number. She said the retailer simply called Whirlpool on the telephone and received an authorization number. Unrebutted evidence such as this in the record establishes that subsequent purchases under Whirlpool revolving charge agreements are both common and routine.

Finally, I comment upon the majority's scholarly but anachronistic discussion of the history of installment sales regulation. Quoting mostly commentators writing in the 1950's and 1960's, the majority argues that, historically, major appliances were commonly purchased using retail installment contracts. Majority opinion, at 308-10. Although the majority does not make this explicit, it appears the majority intends to predispose us to view the Whirlpool agreements as retail installment contracts because they were used to make purchases of household appliances. It is no doubt true that in 1963, when RISA was enacted, major appliances were widely regarded as suitably purchased under retail installment contracts rather than revolving charge agreements. The way retail installment contracts and revolving charge accounts were used 30 years ago, however, should not limit the ways in which they may be used today.

In summary, I see no positive basis for the majority's view that the Whirlpool agreements are not revolving charge agreements, a view which is directly contradicted by the 1967 amendment to RCW 63.14.180. I therefore must respectfully dissent.

Because the trial court's grant of summary judgment against Whirlpool was based on its acceptance of the erroneous view that only retail sellers may enter into revolving charge agreements, and because there is no genuine issue as to any relevant material fact, I would remand the case and order the trial court to dismiss all of the plaintiffs' claims which depend on that assertion. Whatever claims the plaintiffs have raised which do not depend upon that assertion have not been the subject of this appeal and could be addressed by the trial court upon remand.

DOLLIVER, J., concurs with GUY, J.

NOTES

[1] Under the statute "retail charge agreement", "revolving charge agreement", or "charge agreement" all mean the same thing. RCW 63.14.010(10). We refer to such device as a revolving charge agreement.

[2] State Register 92-01 (1992).

[3] Amendments in 1992 to RISA eliminate the differences among the financing devices. Laws of 1992, ch. 193, § 1(1), (2). This change does not affect our analysis because we apply the statute previously applicable.

[4] A lender credit card agreement is defined as an agreement "prescribing the terms of retail installment transactions pursuant to which the issuer may, with the buyer's consent, purchase or acquire one or more retail sellers' indebtedness of the buyer under a sales slip or memorandum evidencing the purchase, lease, loan, or otherwise to be paid in accordance with the agreement." RCW 63.14.010(3).

[5] References to lender credit card agreements, such as appear in the present statute, were added in 1984. Laws of 1984, ch. 280, § 12.