Arbitration – Credit card

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Where a defendant has moved to compel arbitration of a dispute with a plaintiff holder of a credit card, the motion must be allowed, as the defendant has shown that there is a valid agreement to arbitrate binding the parties.

“The plaintiff, Nicholas A. Hays, originally filed this action in Suffolk Superior Court on behalf of himself and a purported class of similarly situated individuals. The defendant, Jefferson Capital Systems, LLC (‘Jefferson Capital’), removed the action to this Court. The central allegation of the Amended Complaint is that the defendant has been engaged in debt collection practices without a license, in violation of Massachusetts law. …

“… The defendant here … submitted two declarations from Atlanticus employee Gregory Ryan with attached exhibits evidencing the existence of an agreement to arbitrate. The Ryan declarations state that in 2005 Atlanticus mailed a credit card to the plaintiff after the plaintiff’s credit card application was approved. A ‘Welcome Kit,’ which included a cardholder agreement containing an arbitration provision, was enclosed in that mailing in accordance with [Columbus Bank & Trust Company (CB&T)]’s routine business practice, and business records explicitly tie the document identifier on the front of the cardholder agreement to the plaintiff’s credit card account. The paper trail further shows that the plaintiff activated and used his card, manifesting his receipt of the agreement and his assent to its arbitration term. This uncontroverted evidence is enough to distinguish this case from Bazemore [v. Jefferson Capital Systems, LLC, 827 F.3d 1325 (11th Cir. 2016)].

“The plaintiff does not attempt to contradict the defendant’s showing of the formation and existence of an agreement to arbitrate. Rather, he raises evidentiary objections to the Court’s consideration of Ryan’s declarations and exhibits. His objections are without merit. Ryan is a qualified affiant whose declarations sufficiently authenticate the business records he has provided. … Accordingly, [plaintiff Nicholas A.] Hays’s Motions to Strike (dkt. nos. 53, 65) are denied.

“In sum, the defendant has established without contradiction the existence of a valid cardholder agreement, which states the agreement to arbitrate in ‘clear and unmistakable terms.’ … Therefore, Jefferson Capital’s Motion to Compel Arbitration (dkt. no. 49) is granted. This case will be stayed and administratively closed while the parties pursue arbitration. …”

Hays v. Jefferson Capital Systems, LLC (Lawyers Weekly No. 02-052-17) (3 pages) (O’Toole, J.) (Civil Action No. 15-14025-GAO) (Feb. 2, 2017).

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