Bazemore v. Jefferson Capital Systems, LLC

Filing 28

ORDER denying 17 Motion to Compel. Signed by Judge Dudley H. Bowen on 5/11/15. (cmr)

ORIGINAL
IN

THE UNITED STATES DISTRICT COURT FOR
SOUTHERN DISTRICT OF GEORGIA
DUBI,IN DIVISION

*H'ollffffigu

CHRISTINA BAZEMORE, ON bEhAlf
and al-l- oEhers
of herself
situated,
similarly

cv 314- l_l-s

Dlrinr.iff

JEFFERSON CAPITAL

SYSTEMS, LLC,

.

De fendant

ORDER

LI-',C's (",fefferson
(Doc. no. 17.)
oral
for

Capital")

the reasons

forth

set

Christina

putative

consumer cfass

violaEed

the

bankruptcy
statule
conduct

of

to

limitations

viol-ates

the

Systems,

arbitraEion.

compel

of the parties'

briefs

and

DENIED

herein.

INTRODUCTION
Bazemore
action

recover

Debt

has

filed

a

that,fefferson

Capital

proofs

cl,aim in

filing

debts

defense.
Fair

("Bazemore")

al]eging

law by systematically

cases

to

Capital

23, 2OL5, the motj-on is

on February

I.
f

motion

Upon consideration

argument held

Plaj-ntif

,fef ferson

is Defendant

lhe Court

Before

which

were

of

barred

by

a

Bazemore aLLeges t.hat this
Collection

Practices

Act

("FDCPA" ,
)

15 U.S.C.

enrichment.

,fef ferson

are

!o mandatory

subject

CapiLal

'l

Nl^tr6ml.\ar

crediE

card,

s?oo

(przanAff

by

the

Imagine

Bazemore applied

Mastercard,

lltl 5-5 & Ex. B.)

Bank of

First

B) which,

to

accordj-ng

$148.03 to
according

the

card

in

fl 4.)

is

Eo the statement

first
with

charged

caused Bazemore to
payment became due.'
of $20.00.
,fanuary 23,

a

exceed the
(Id.)

The next billing
2006,

reflected

a
of

fee

disclosed

card
(id,,
until

Bazemore charqed

weeks.

(Id.)

Thus,

daEe of December 2l-,

On December 22, 2005, Erle

account

$9.95

limiL

The credit

not

a closing
(Id.)

2005, Bazemore owed 9299.69.
was

three

for

card was issued

a $150 enrollment

Bazemore,

the

on-l-ine

a credit

bil-l- is mai-1ed to the card holder.

the first

account

with

The credi!

(Id.

Delaware.

accounE was j-mmediat.ely charged
ex.

claims

BACKGROT'ND

2005,

a

Ehat Bazemore's

contends

arbitratl-on.

II.
nn

unjust

S 1692 eE seq.,1 and constitutes

maint.enance

$300 limit

Bazemore paid

before

fee
her

that
first

the minimum payment

statement,

with

$125 in

fees,

a closing
including

date of
a

$35

'

EC-q Crawford v. LVNV Fundinq, LLC, 758 F.3d 1254 (11''h
20L4], (recognizing
that. a debt collector
who files
a
Cir.
proof of cl-aim in bankruptcy
court violat.es
time-barred
the
FDCPA).
'

Bazemore woul-d have one more single
(Ryan Aff.,
Ex. B.)
on February ]'5, 2006.

charge

of

$98,94

(Id. )

fee. "

"overlimit

fees,

monthly

$80.

Bazemore owed $1-,153.18 on the account'
she had charged
total-ing

$314.

states

United

for

..rqp r-o <:ollect
pa)ment

the

Jefferson
be

a

part.y

on the
debt

canitalto

,Jef ferson

corporation

in

card account.

account

provided
that

to

(Ryan Aff.,
correspondence

tT 7.)

in

days of

According

t,o

as

compucredit
appl-icants
applicatsion

the

executive
provided

manager, Mr. Gregory Ryan, "Atlanticus

contractual-

services

llmagine

Mastercardl

credit

Bank of

Delawarel ."

(Id.

related
card
u 4.)

for
Mr.

to

the

services

card
the

to

Bazemore.

Atlanticus
known

formerly

business

ten

5,

October

contained

("CompuCredit" ) , sent. new credit
within

The

was OcEober 5,

effective

provision

further
),

bankruplcy

Ex. A; Am. Compl. flu l-9-20.)

purportedly

explains

her

Eo own the debt. and therefore

claims

( "Atl.anticus"

a "we]come Kit"

cerlain

card

was t.ime-barred

arbiLration

an

capital-

corporacion

credit

Resp. in opp'n,

AgreemenE

Cardholder

Claim

31 ,153.18 owed on Lhe credit

(see Pl .'s

2o!2.

of

in the

y

U d.rr\-.o't

a Proof

filed

date

thus,

Chapter 13 protection

Court.

Bankruptcy

Capital

Jefferson

2006;

At t.hat time,

on the card and had made payments

oflLy i247.01-

In 2013, Bazemore filed

last

By MaY 2aa7,

(Id.)

betsween $35 to

typically

incurred

Bazemore

Subsequently,

the marketinq

and on behalf
Ryan attests

of

of

the

IFirst

Lhac the

Welcome Kit
the folfowing

Agreement,

a Cardholder

contained

arbitration

which

contalns

provision:

(whether
in
controversy
or
dispute
?\ny claim,
at any time arising
or otherwise)
tort,
contract,
!o your Account, any transferred
from or relating
(coll-eccively,
Agreement
or
t.his
bal-ances
\ra'le ims,, )
t

t

rE'n o n
v r v"

l-he

alanf

inn

nf

.rrnrr .\r

rrS,

Will

be

pursuant
to this
arbitration
by binding
resolved
Provision
and the Code of Procedure
Arbitratsion
("NAF Rules" ) of the National
Arbit.ration
Forum
( "NAF" ) in effec!
If for
when the Claim is fil-ed.
any reason lhe NAF cannot, wil-f not or ceases to
will
admj.nistrator,
we
as
arbj-tration
serve
-^r'l^-^11,,
rra.Lfurrarry
recogni z ed
anothe r
subs t i tute
arbitration
of procedure

utilizing

organizaEion
.

a

similar

code

UPON SUCH ELECTION, NEITHER YOU NOR WE WILL HAVE
IN COURT THE CI,AIM BEING
THE RIGHT TO LITIGATE
ARBITRATED, INCLUDING IN A JURY TRIAL, OR TO ENGAGE
IN PRE_ARBITRATION DfSCOVERY EXCEPT AS PROVIDED IN
YOU WILL NOT HAVE THE
IN ADDITION,
THE NAF RULES.
RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER
TO ANY CLAIM
OF ANY CLASS OF CLAIMANTS RELATING
EXCEPT AS SET FORTH
SUBJECT TO THE ARBITRATION.
BELOW, THE ARBITRATOR'S DECISION WILL BE FINAL AND
BINDING, OTHER RIGHTS AVAILABLE TO YOU IN COURT MAY
NOT BE AVAII,ABLE IN ARBITRATION.

\\Claims'/ covered
Arbitration
by this
The term
is
to be given
Ehe broadest. possible
Provision
by way of
example and
meaning,
and includes,
(I)
CIaims arising
from t.he
l-imita!ion,
wiEhout
for or issuance, use, terms, change j-n
application
of terms, closing
or col-lection
terms or addition
nf

lrr)tt7'

A.'..atltnl-

a\r

l-hi

s

AarrFFmFnj-

OI.

fl.om

promo!ions
or
oral
or
written
advertisements,
your Account,
to
including
any
statemenEs related
information
obtaj-ned by us from,
Claims regarding
^r
ral.\.1r1-a,'i
hrr rrq l- n
.rcdi
l- ranrrrf
i n.r e
*gencles or
or Cl-aims relaEed to the goods or insurance
others,
purchased under your Account;
or other
services
(II)
you
parent
and
our
CIaims
between
rn.ri.\ri
t1'
.\k'rl a/l
who I Iy
or
corporations,
af f i1j.ates, predecessors, successors,
subsidiaries,
independent
4

aLh L I l, f
h
9 L

^-a ' a v 9e
ag
v I

^f

,

f i ^ara

,.1i rF.l-

.]r.q

'ranra<1411f

6r

^f

i .tte<

from your Account or this
Agreement; and
arising
(III)
enforceability
Claims regarding the validity,
Provision
or this
or scope of tshis Arbitrat.ion
hgreement .
entire
(.l.d,,

EX,

A,'

On March 3L, 2OO8, pursuanL. to an al-Ieged Billsold al-1 of its

Atlanticus

Capital

fefl

within
llU c-q

pool

that

rFr

claims

that

(Simon Aff.

Bazemore's
(Id.;

.fef ferson

Bazemore fiLed

accounLs.

card

credit

see also

fl 7 . )
account

weinrels

\

After

of

to a poof

and interest

Capital-,

to Defendant Jefferson

of accounts
,Jef ferson

title

right,

of Safe,

this

Court. on October

Bazemore amended her compfaint.
a discovery
large

number of

compel

enrichment
and interest

cl-ass participants.
Defendant

issue,

arbitration

Thereafter,

jointly

of

Before

the

requested

Bazemore's

court

coul-d

Capital

,fef ferson

as an al,l,eged assignee

claims

moved

FDCPA and
of alf

right,

unjusE
titl-e,

!o Bazemore's account.

on ,fanuary

9,

2015,

stayed pending resolution
After

2014.

The parties

cfaim,

but t.he case

court,

13,

of

of t.welve months because of the potential-ly

period

address the discovery
to

in state

tshis FDCPA lawsuit

was removed to

it.s st.a1e proof

filed

capital

a brj-ef ing period,

motion on February

afl

discovery

in

this

matter

was

of the motion to compel arbitration.
the Court heard oral

23, 2oI5.

Thus, the parties

argument on the
have had ample

address

to

opportsunity

and it

arbitration,

ripe

is

the

adjudication.

for

provides

Provision

Arbitration

("FAA" ) a1lows an aclion

Act

The Federal- Arbitralion

agreement

a written

arbitraLion

"under

U.S.C. S 4.

A district.

P'ship,

Ranch Ltd.

for

Terminix

F.3d

432

1327.

shal-l-

to compel

arbitration."

court must compel arbitration

agreement to do so,

a vafid

it

that

9 U.S.C. SS 1-16.

Act.

be governed by the Federal- Arbitration

is

Eo compel

motion

APPLICABIJE LEGAIJ STANDARDS

II.
The subjecL

of

merits

the

Int'1

1331

if

9
there

Palmer

co. v.

(11'" Cir.

2005);

Chastain v. Robinson-Humphrev Co. , 957 F.2d 851, 854 (11'h Cir.
:-992l' (citing

to construe

lcourts]
all

9 U.S.c.

doubEs in

favor

by Archur Anderson LLP v.

Cir.

rr

j-

Cradi

2009)

Anlrrf

2OO7), abroqated
556 U.S.

Carl-is]e,

innq

q64

Tn.

("The FAA creates

a strong

requires

generously,
Becker v.

arbitration."

F.3d 1292, l-305 (11rh Cir.

pi a=rrl

clauses

arbitration
of

"Federal- policy

SS 2 & 3.)

tr

1d

federal

resolving
Davis,

on other

srounds

524 (2009);
1t4 q

l?q?

policy

491

see
111rh

in favor

of arbitraEion.").
"The
arbj-traEion

FAA
is

reflects
a matter

the
of

contract"

agreements on an equal foot.ing
Center,

W.,

Inc.

v.

fundamental

,fackson,

with

principle

and "places
ot,her contracts.

561- U.S.

63,

67

that

arbitration
"

Rent-A-

(2010).

In

principles

F . 3 d 1 3 5 9 , 1 3 6 8 ( 1 1 - i hc i r .

contract

Law

formation

of

is

because it
or not

"'a

Bear

Stearns

&

2008))) .

Thus, a court

pleadings

for

purposes

of

provision

enforceabLe

and covers

of

Bazemore.

Jefferson

App'x

782,

of whether

v.

Advisors,

Inc.

'785-86

(11th cir.

information

resol-ving

outside

the

the motion.

^- o . -JtarL - . a 1 c o n t e n d s
^I
\

uc!!srD\Jrr

in the Cardholder

has not

arbitration,

proven

to

that

Agreement is valid

the FDCPA and uniusL

Bazemore resists

Capital

an

I,EGAI, ANAI..YSIS

Defer'---

arbitration

KeyBank Nat'l-

201-4) (describing

capiEal

can consider

IIT.
As stated.

F.

Undef

of the minds on the agreement

Maqnolia

272

Co,,

the

governs

of the issue

summary di"sposj-tion

(quoting

arbitrate"'

the

" summary- j udgment - 1ike"

as

has been a meeting

there

apply

ar.e feviewed

.fohnson v.

L294 (l-l-th cir.

arbitration

compelling

that

:rhifrafiDn

summary judgment.

754 F.3d. L290,

Assoc.,

state

courts

.

l-^ r'.lmncl

mofions

for

standard

order

particular

the

contracts.")

F iLn4,La l LI v .
L
tt
1

to

of

428

deEermining whether a

agreement arose between the parties,

binding

the

(" [I]n

2005)

and

Aerospace Corp.,

See caley v. Gulfstream

enforceability.

state-1aw

appfy

format j-on, interpretation

Lo contract

reLating

court.s

agreements,

arbitration

construing

be the

the

and

enrichment. claims
arguing
assignee

that
of

1)
the

provision

arbitration
2)

she

did

provislon

parties;

to

no

longer

sustain

cannot

particular

grounds;

fa11 outside
not

The Parties

to

again:

643, 648 (1986) .

of Am., 475 U.s.

Pac. Life

i^i|-ifi^h

^mit-

\ursgufvrr

Benefits.

Inc.

Inc.

v.

compel
v.

them

lamnh:ci

Commc'ns Workers

to

Amalqamated Life

does not. extend

unless

the right

policy

pursuant

Ins.

to

tso which

of the nonsignatory

between Ehe

^dAaA\

efrfad

Eo arbitrate,

arbitration.

("As a general

compel arbitration
agreement

c

have not. agreed

2014)

the

of

Co., 462 E.3d 384, 396 (5c"

(M.D. Ga. Mar . 26,

signed

the Court

The "sLrong federal

Ins.

r-a,.ll

way, where the parties
cannot

on these

is a matter

Brown v.

court

Courts

Provision

parties."

a

and

FDCPA claims

Ehere is a val-i,d agreement Lo arbitrate

another

tshe

does not appLy to the determination

arbitration

tnn6\

the

FDCPA cl-aims.

of whether

1ai v

the

provision,

" [A] rbitration

AT&T Technoloqies,

"

below,

arbit.ration

Eo the Arbitration

A point. worth noting
conEract

her

3)

is procedurally

the scope of t.he arbitration
of

cerms;

between

because Bazemore's

however,

compel arbitratj.on

A,

favoring

objection

Bazemore's

enforceable

As expl-ained

unconscionabl-e.

its

provision;

provision

and 4) the arbitration

substantively

enforce

cannot

arbitration

the

is

agree

not

arbitration

will

and tsherefore

Co.,

See

FirsC

20]-4 WL 1255200

rule,

'the

a party
arbit,ration

is expressly

right

that

to

has noc
is

sought

provided

for

in

agreement. / "

the

(quoting

Greater

Mut.

N.Y.

rns.

Rankin, 298 A.D.2d 263, 263 (N.Y. App. Dj-v. 2002) t .
parties

to the Cardholder

provision

Agreement containing

Delaware ("we" or sus") and its
A,

Aff.,

Ex.

party

Eo the

its

status

provision

"assigns. "

(Id.,

claims

:qq.icrncc

if

seeking

to

Bank of
(Ryan

Capital

subject

an original
relies

upon

Indeed,

the

to arbitration

to

De1a\,Jare's "successors"

Bank of

Ex. A, at 4.)

nr

not

to compel- arbitration.

defines

First

of

claims

is

Capital
,Jef ferson

rather,

contract;

the arbitration

successors and assigns.

Jefferson

as an assignee

arbitration
include

1.)

at

Here, the

Bazemore, and the First

are the cardholder,

Co, v,

and

Jefferson

Thus, if
m;\/

rnforce

the

capital

is

arbitration

provision.l
As the

party

compef arbitration,

,Jef ferson

t

court
refer
,fef ferson
capital- would have this
the
provision
to
whether it is a parEy to the arbiErat.ion
issue of
(See Ryan
pursuant
to the delegation
clause.
arbitration
arbit.rabLe
cl-aims to include
E.hose
Aff.,
Ex. A (defining
\\-ad.r/li
!

EY

4!

srrr:

hd

t-ha

rr:

l i di

l- r..

ay1f.rr.,a:hi

I i l.\/

.lr

q.'.rnc

.\f

tt

tha

provis j.on) . ) A delegacion cfause is "an agreement
arbitration
issues
the arbit.rat.ion
concernlng
to arbitrate
threshol-d
W., Inc. v. Jackson, 561 U.S. 63,
agreement. " Rent-A-Center,
68-69 (2010) . Thus, "gateway" cl-aims have Co be resolved by
:n

ryt|i

t-rit-^y

h^r:

/'.jrrrf

i r.r fhA

Far-a

aF

-

"-1iA

/la a^r
\ r c rl c v d { - i ^ u r ( J l l .

However, if .fef f erson Capital
is not a parEy to the
cfause,
provj-sion,
it
is a afso not a party
arbiEration
to the
j-n, and thus, it cannot cal-ldel-egation clause contained t.here
That is,
the Court must address the
for its
enforcement.
agreement between the parties,
existence
of an arbitration
from
to
is
different
challenges
the
validity,
which
agreement is
enforceabifty,
and scope once the arbit.ration
determined to exist.

^ ^P*l . r r - ir I
Lc
lct

r^-^

to

agreement
just

rL^

l . r , , . 1 - 7 : l p n. ) f

as a party

proving

its

and ils

of

the

evidence,

has

under

terms

an

Of

the

burden
1aw'

state

of

See,

;
Grant v. Houser, 459 Fed. App'x 310, 315 (5-h CiT. 201-2)

e.g.,
centrv

v.

1229

(S.D.

Ga.

Enters. -Ga,,

Beverlv

s.E.2d

capital

Inc.,

7f4

Swanstrom v.

2 O O 9 li

F.

Supp. 2d 1225,

We11s Fargo

Bank,

754

786, 788 (Ga. Ct.. App. 2014).
expfained

As briefly
asserts

demonstrated

it

acquired

The evidence

assignment.
brief

that

in lhe preceding

in

support
certain

of

right.,

all

accounE to include

in Bazemore's

its

exiStence

upon a contract

relying

existence

the

a preponderance

by

arbit.rate

r/ll r v l \ r i r r lnJc r
.
:
} v

titLe

the arbiuration

provided
its

section/

by .fef ferson

molion

weaknesses in

the

4

Lo

Jefferson

and interest
provision
Capital

by
with

compel- arbitration

chain. n

However,

any

The init.ial
evidence produced by ,Jef ferson Capital- to
lhe cardholder
Bank of Defaware assigned
First
show that
Agreement tso it consistsed only of Mr. Ryan's averments thaE
contractual
services
related
to
AEfanticus
"provided certain
card" to Fj.rst Bank of Delaware.
Ehe marketing of the credit
(Ryan Aff.
Mr. Ryan did not explain
f 4 (emphasis added) .)
formerly
compucredit,
acquired
all
rights,
At.fanticus,
how
from Frrst Bank
in the credit
card account
t.itfe and interest
to ,Ief ferson
Capital .
of Delaware in order to convey it
contended that it had purchased a
Jefferson
capital
Further,
receiving
from Atlanticus,
thereby
"aI1
"pool of accounts"
(Simon
in Bazemore's account.
rights,
t.itl-e and inEerest"
Aff. fl 7. ) .lef ferson capital attached a single page "8i11 of
Capital , evidencing
a sal-e
by ,fef ferson
unsigned
Sa]e,"
(Simon Aff.,
Ex.
between compucredit and ,Jef ferson capital .
lists
accounEs on "Schedule
A. ) The Bil-1 of Safe purportedly
was no
L,"
but Schedu]e 1 is not aLLached. Thus, lhere
vtas among those accounts sold
evidence that Bazemore's accounts
1 - \ r'

ra^m^rrrrradi

t-

t-^

.Taf

f a1.c.\i.l

r-.ani

10

l- :

l

of

failure

proof

submiEted with

clr.t

evidence

through

resolved

been

reply

its

evidence

now finds

by a preponderance

that

of

the

card account as

owns Bazemore's credit

thaE it

the

and the Court

brief,

has estabfished

capital

Jef ferson
record

has

dsDr-9rlse.

To

and

Delaware
Atl-anticus,

card Agreement
1-6, 2005.

enLered

(Def.'s
provides

Agreement

inEo belween

Rep]y Br.,
that,

on

calendar

month, compucredit

interest

to any "Charged-off

when First

Bank of Delaware

on May 22,

20a7,

pursuant

Ex.

the

in

l-ast

business
all

Accounts."

(Id'

"charged

off"

Card Agreement.

Ryan Aff.

of

to

on February

The Affinity

wou]d receive

of

to an Affinity

the companies
A.s)

Bank

inEerest

t.he Court

right,

Card
of

each

title

and

day

S 2.]-6.)

Bazemore's

L.he account. was transferred

to the Affinity

5-7 & n.4;

refers

Capital-

First

between

predecessor

a

compucredit,

,fef ferson

Link

first

the

eslabl-ish

Thus,
account

Lo Compucredit

(Def .'s

Reply Br. at

Feb. 12, 2Ol-5, fl 6; Weinreis

Aff.

u

q)

s Bazemore complai-ns tshat the Affinity
card Agreement is
provides
Capital
a viable
however,
.Tefferson
unexecuted,'
public
filing
with
the
to the Agreement's
link
int.ernet
SecuriEies Exchange Commission. (Def.'s Reply Br. at 7 n.4.)
Capital- in
Given the balance of evidence offered by.Tefferson
Delaware against
Bank of
its l-ink to the First
esLabl-ishing
Bazemore's lack of any evidence that the necessary link does
not exisE, the Court finds by a preponderance of the evidence
card Agreement existed between First Bank of
that t.he Affinity
De l-avrare and CompuCredi t .
11

^f

, r q f f a : . < ' . t'Ln Ct /,La n i lr q L' a l
vs

account
rn

.Taf fF1.qnn

I

in a pool

was included

Agreement and a BiII
(weinreis

Aff.

incl-udes

the

Cenifel

f .r

fl 8 & Exs. A & B.)

a balance of

digits

four

that

and i-nterest.

only

,fef ferson

to

the

acquired

that

the

there

The Deleqation
determined

Having
enforce
of

Delaware,

challenges
arbitration
contsracted
to

arbitrate

the
to

its

with

the

must

right.,

was

a

of

titl-e

the Cardholder
Thus,

provis j-on but

arbitration
val-id,

enforceable

Bank of Del-a\^rare.

is

to

unenforceabl-e

arisinq

!2

may seek
of

out

because
in
of

First

Bazemore's

Bazemore argues

Bank of Delaware

claims

Capital

i-n t.he stead

now turn

enforcement.

First

an account

provision.

,Jef ferson

provision

Court

provision

of sale

cfause
t.hat

the arbit.ration

its

to include

agreemenE belween Bazemore and First
B.

the Bill

by a preponderance

arbitration

may enforce

extent

Sale

of Bazemore's account. wi-th

capital-

the

containing
capital

Asset

1 referencing

to Bazemore's account,

Jefferson

Financial

the Courts finds

evidence,

the evidence

Agreement

Bazemofe's

(rd. , Ex. B. )

$1153.l-8.

Upon this

that

sol-d by compucredit

This time,

schedule

of

ending in the same fast

a

,J. Weinreis

Sal-e, executed on March 3l-, 2008.

of

port.ion

shows

of accounts

y\rrrqrranj-

Cani f a l

,TFf fcrson

of Ms. ,Jennifer

the affidavit

through

Then,

she

t.he first
her

that

to

Bank
other
the
never

i-nstance

credit

card

Bazemore points

Here,

account.
that

she had ever

with

the arbitration

not

,Jef ferson

fnst.ead,

approximately

ten

Thus,

Agreement.

Cardholder

saw much less

Bazemore ever
c

.:r.rlrmant.

assertion

7-8.)

1f

thac

unconsc ionabfe
Threshold

in

the

the

on-line

("lAl

bound by

l-hi

Capital
in

there

c

rF.r,^].d

is

the

Bazemore

application

no

was

signed

evidence

nlncalrr

:l

provision

the
thats

provision.
irrnc

f,.\

ha1.

procedurally

is

fhis

Reynolds.
about

dispute

Inc.,

whether

clause

arbitration

raises

to decide.").
its

throughout

.'ase contains

SEates Supreme Court

decided

by

the

court.

of Teamsters 561 U.S.287,

Int'1Bhd.

a court

such as enforceabiLity

t.ypically

are

gateway

for

by,fefferson

to

sent"

on-line

issues of arbitrability,

a given

arbitrabifity'

"a form ot"

read the arbi-tratsion

( 2 0 1 0 ) ; H o w s a mv . D e a n W i t t e r

United

of

has

.

Rock Co. v.

nrorri si on

Agreement
Capital

Bazemore never

arbitratj-on

consc ionabi I ity,

(2002)

been

her

after

days

say that

have

"would

(Ryan Aff.

submitted.

cranite

Jefferson

che content

can only

capitaf

Agreement

cardholder

R.'6m^ral

Also,

as !o

no evldence

and what Bazemore may have agreed to at that. time.

application

and

provision.

is

there

the Cardhofder

a copy of

received

any evidence

submittsed

out that

13

537 V.S. 79, 84
parties

the
a

'quest.ion

of

Ehe arbitration

a defeoefi .)n clarrse
that

are

However, as pressed

arguments,

has held

295

"parties

ThF

can agree

\gateway/

to arbiLrate
.lclc.raf

ion

to avoid

a party
Id..

must

aE 72.

provision

(finding

party

by not

the

challenge

as

val-idity

Uhe
the
and

In re checkinq Account

Id.;

specifically

parties

validity,

the

provision.

arbitration

clause

delegation

provision

delegation
chal-l-enging

agreed

Bazemore

it' before

fal-l-s within

courE cannot

In

resofve

fact,
haraf

nf

rnrr

manf

brief
i.rr1

7

scope"

^f

of

challenge

the
the

Bazemore's claim
saw t.he

the conscionability
clause;

issues.?

these

issues

because she never

the delegation

Bazemore's
t-

noE

Further,

specifically.6

arbitrate
or

does

and any argument respecting

the agreement

to

enforceability

not agree to arbitrate

thaE she did

u

clause.

must enforce

such

waived argument that

case.

this

"regarding

nariaar].r]rr

cl-ause,

court) .

the district

this

58-59.

to

court

a

MDL No. 2036, 674 F.3d 1252, 1256 (11th cir.

was unconscionabl-e

provision

the

to the arbitrator.

Litiq.

overdraft

fails

"gater^/ay" issues

leave

and

enforceability

In

then

aE

Ehe del-egation

partsy

opposing

II.S.

of a delegatsion

challenge

cl-ause direc!Iy,

delegation

2012)

the

If

q6l

the applicat.ion

specifically

through

arbitrabi1ity"

of

Fpnf-A-Ccnj-Fr.

clalrse-

rn order

questions

therefore,

See Rent-A-Center,

and
t-ha

of

oraf

dolcart-inr

argument

are

nlrrreo

Bazemore's
substancive
uncons c ionabifity
argument
So, too, does Bazemore's assertion that
meets the same fate.
cl-aims.
More
cannot be compe]-led for time-barred
arbitration
provision
Bazemore contends that the arbitration
specifically.
I4

561

(finding

72-73

aE

U.S.

defendant's
challenge

arguments did not specifically

at the "entire

where they were direcled
mention

defeqation)

to

arbitrability
to

constrained

partj-es

that
if

appeaLing

Bazemore Lo an inconspicuous
provision

arbitration

in

contemporaneousl-y given
itself

in my view,
r-

'Fhp

fact,

an

is

to

bind

comprehensive
j-s

that

application

not
is,

unconscionable.

F'ncPA

Cfaims

challenge

that

the

Court. finds

controlling.

fha

buried)

the credit.

one remaining

^f

Indeed,

agreement

is

c^^ha

judge

of

unconsc ionabi l ity

unavailing.
(in

issues

presiding

Bazemore's

to her with

argumenE, Bazemore argues
i-h6

clause

and did not

gateway

the

There
upon

agreement"

delegated

arbj"trator,

the
observe

are

arguments

the del-egalion

.

the

Although

unconscionabiliLy

:rhi

l-rafi.n

t.hat. her
nrnrri

qi

Bazemore touches

that
In

brief

and oral

FDCPA cl-aims are
on

lqaF

pl

/s

outside
PFsrr

in

against her on october 5, 2o!2, sir1.
ceased t,o be enforceable
years after
card
the dale of her l-ast pa)ment on the credit
in t.he Eleventh
Circuit,
Bazemore argues that
account.
cannoE be compelled for
arbitration
"disput.es which arose
requiring
contract
during time periods in which no effective
(Pl-.'s Br. at. 11-12
was governing the parLies. "
arbitration
(quot.ing Klay v. Alf Defendants, 389 F.3d 1191, 1203 (l-1" Cir.
this
regard,
however,
Bazemore's
argument
in
2 0 0 4) . )
challenge
to the arbitration
an enforceability
constitutes
provision,
which faf l-s wilhin
the delegation
clause and thus
directed
to and resoLved by an arbitrator,
must be
15

opp'n,

at

notice

to

the

("The arbitration

12-13

nrnr.adrrre ,/\ \

However,

cl-ause.

"wholIy

groundless"

See Douq]as v.
o u a l - c o m mI n c .

of

to

Rather,
[is]

(the

courts

Circuit

of

the

reasoning

a gateway issue

not
that

to arbitsraLion.
2 O A 4 )i

465 F.3d 1356 (Fed. Cir.

2006).

admonished that
require

460

the mere existence
that

Douql-as, 757
arguments
Id.

all

claims

F.3d

thaL

at

the appropriate

analysis

2014)).

462.

Inc.
The

as follows:

concLudes that
the parties
did not.
If
t.he court
intend
unmistakabfy
to
delegate
and
cfearly
to
an arbitrator,
Ehe
decisions
arbit.rability
general rule t.hat the "question of arbitrability
for judiciaf
determinat.ion"
applies
.
is
and the court should undertake a ful-1 arbitrability
thac the issue
inquiry
in order to be "satisfied"
to arbitration.
If, however,
involved is referable
concl-udes
t.hat. t.he parties
Eo the
the
court
and unmistakabl-y
intend
to
agreement did clearly
Lo an
the power to decide arbitrability
defegate
then the courE should perform a second,
arbitrator,
L6

be

tshe dispute

(cit.ing Aqere Sys..

560 F.3d 337, 340 (5th cir.

explained

has

Circuit

of

(5'n Cir.

757 F.3d

arbitratj-on.

co.,

by the

should noE. be subject

covered by the agreement."

Federal

scope

the

Efeventh

have hel-d that

must be "plausible

v. samsunq Elecs.

arbitration

an

Eo

persuaded

is

cl-ause does not

gateway
there

that

v. Nokia Corp.,

a defegation

sent

Court

Regions Bank,

These circuit

as

contention

courts

point)

addressed this
is

the

circuiE

federal

through

might seem to fa11 witshin the delegation

provision

arbiLration

two

This

vj-ndicatse

[may] only

she

rights

statutory

federal

her

that

Plain€iff

does not provide

provision

to
inquiry
arbitrability

more limited
of
assertion

whether
the
groundless."

detsermine
is "wholly

Quclsarn$_J-rrc* 465 F.3d at 1371 (quoted sources
,

if

YU

Fl-,a

*inm=ral

has nothing

ae

her

can tel-l

arbitrator

in

inquiry

as

nf

free

of

InterDigital

Commc'ns, LLC v.

now to .fef ferson

Bazemore
any

and

of

between her

and First

nrr.l

/.^mm

l-ha

that

her

cl-aim

agreement,

federal-

Id.

court?"

arbitrability

a limiLed
is

"whofly

Trade Comm'n, 718 F.3d

Int'f

f ha

Court

cfaim

that

Bazemore's

the Court is obligated

all

to

bind

cl-aims

herself
that

Del-aware.8

Bank of

i n

.\F
l- ar:1-

irrct-

must. conduct

Capital's

inLended

arbit.ration

I

irirr

2073)).

FDCPAclaj-ms are arbitrable,
whether

to

"int.end

arbitration

in

question

4
at 453 (quoting Oual-comm, 66 F.3d 1356, and

Id.

Turning

her

a court

groundl-ess."

1336 (Fed. Cir.

l-r^t-

instance

to file

wheEher a claim

to

^rLri

at

agreemen!

the plaintiff

first

the

quesEion,

this

answering

arbitration

to do with

whatsoever

and she shoul-d now feel
In

an
did

cfause,

757 F'3d

Douqfas,

"

the perEinent

signed

a defegation

+ r lr - r r ^ r rYd lL
u !
vq r

what must be arbitrated

that

amplified

plaintiff

lhe

containing

intent.

Circuit

The Fifth

464.
is:

the parties'

a maEter of

In

.

reasoned t.hat it

CircuiE

the law-that

reflects

"most accurately
is

the Fifth

test,
the QUelS.eI0E

adopting

omitted)

rcanhi

ncr

musL first
l7

fh i c

forever

might
It

secOnd

conclude

to inquire

is

ever

to
exist

unreatistic

.! | ari

that

.\f

fhF

Bazemore

this

Court

ceded her
especially
payment,

that

to concfude

and implausible

no rational-

finds

she has.

basi-s to

f ederal- consumer protect.ion
when her
calculation,

FDCPA cl-aims

More specifically,

concl-ude
rights

are

that

to arbitraLion,

focused

incurred

delegation

clause,

and "rel-ating
however,

the

wit.h it.s

t'o" Bazemore's
Court

broadfy

t.he terms

use of

account,

must ba]ance

court

that

to

"arising

favor

federa]

with

The courE

the bank but upon the conducE of a debt collector.e
LhaE the FAA would have this

the

not. upon

or non-pa)./rnent on a debt

is mindful

Bazemore

read the
from"

arbitration;

policy

against

to defegat.e the power to
"c1ear1y and unmisEakably intendIed]
Here, the court has
to an arbitrator."
decide arbitrabiliLy
grave
Bazemore',s acceplance
of
the
relaLed
!o
concerns
with its delegation
cl-ause.
The only
provision
arbit.ration
that
record evidence of her acceptance is the Ryan affidavit
at.tests that Bazemore "would have been sent" "a form of" the
Cardholder AgreemenE ten days after she applied for the credit
^rrrl

-rr'- l i rra

l q/ > : a
a
\ !

P\r^n
rlier'

Aff

'.+-

i

t lll t lll

?-R

)

.Taf farqnrr

c^hif,al

Agreement,
nor has it
cannot produce an executed Cardholder
Bazemore was given at
produced evidence of what information
This leaves Bazemore wit.h the task
the time of application.
that she did no! receive the cardhol-der
of proving a negative:
is
it
only
by a slight
evidence,
AgreemenL.
Upon this
preponderance
that the Court concl-udes that. Bazemore agreed t.o
Accepting
that. she did,
the court
the delegation
cl-ause.
to determine
moves Lo the next scep of the Oual-cemm test
Capital's
assert.ion
of arbitrability
for
vrhether .Tefferson
B a z e m o r e ' s F D C P Ac l a i m s i s " w h o I l v s r o u n d l - e s s . "
i

of pa)ment,
calculat.ion,
or nonIndeed, ques!ions
palment on a debt woufd f ikel-y be subject to arbitrat.ion.
In
this case, there is no evidence that Bazemore ever contested
or the accumu]at.ion
of
fees.
the amount of
Ehe claim
Bazemore's case is not about the existence
or amount. of any
Capital
soughE to
debt but grounded in the methods Jefferson
emr:Iov .
18

the strong
principal

purpose
abusive

unfair,

can sign
consumer

away her right
protectj-on

to do so,

intent

is

that

Bazemore's

not

absent

cl-ear

such intent

and

within

fa11

compel arbiEration

Bazemore's

of

on a discovery

case.to

this

548 ("[A] rbitration

the

lhe

argument

scope

Thus,

of

this

the

Court

FDCPA claims.

coNcl,usroN

,fef ferson

capital's

motion to enforce

(doc. no- 17) is DENIED. The parties

arbitration

courE under
unmistakable

in

" ) . Accordingly,

FDCPA cfaims

upon the foregoing,

Ehat a consumer

not manifest

Inc. t 475 U.S. at

rv.

to confer

is

a

practices.

federal

agreement is whol1y groundless.

arbitration
will

in

from

consumers

collection

to seek relief

of contract

a matter

pro!ect

Court cannot conclude

laws

see AT&T Technologies.

to
debt

and deceptive

anoEher way. this

Stated

is

which

of

consumer advocacy 1aws, the

in its

federal- intserest

plan

are directed

to incl-ude the timing

for

class

'0

This concl-usion is buttressed
by the fact lhat there
or read t.he
is scant evidence thaE Bazemore ever received
agreement. and her
last
in
involvement
this
arbitration
First
Bank of Delaware.
was in 2006.
accounts, and with
any right. that Firsts Bank of Defaware or itss assignee
Further,
h:n
f^
= .lebt
prior
ceased over
two years
Lo
.raFFarcnnl

a

r'.a?1i t-..1

f r f. i I i r r Y r
!
f nr

. ' , . \ 1 - , . \F . \ . r f
,
v!
P!vv!

ru ra e
hr

.1^-1 c^ - L L r L .
! L l

d!.^+
Irl'olL

^-.i r
Dd.-L(r,

rr^^
urrE:

Court emphasizes the fact that an FDCPA claim is focused upon
vis-i-vis
a consumer, and not
the conduct of a debt collector
relationship
between a lender and a borrower.
the contractuaf
Thrrs .

l-he

vi ol ati

we

conduct

in

this

CaSe

tsime-barred proofs of c1aim, arises
filing
at best,
Bazemore's account tangentialfy.
19

i

a

dac,anl- i rrcl rr

from or relates

to

if

discovery,
for

motion

case deadl,ines

joint

their
r-hi rr-r'

this

submits

motions.

dispositive
plan

rla.rr< hcreof

.

The parlies

for

approval

Thr

narf.i

es

this

to

should

to aLLow a twelve-month

disinclined

of discovery
shall

submit

Court

within

know

that

discovery

the

period

In the absence of agreements, each partsy shalf

case.

proposed

a

close

such as expert. disclosures,

discovery

/?o\

ls

court
in

of

t14>ica1

as well, as any other

certification,

class

and filing

and Lhe submission of Plaintiff's

appropriate,l'

pLan

discovery

for

Lhe

Court's

cons iderat ion ,
ORDER ENTERED c r . L

r-tl-rv LrD Ld,,

\JE!J!Y-Lcr,

-

t.his

May, 201-5.

Ll The CourE is aware that both parties
represented to t.he
,Judge on January 9, 20]-5, that t.hey
United States Magistrate
discovery.
did not desire to bifurcate
The Court is simpfy
nrnrridin.r

positions

t.ha

narfies

on that

l-he

onnorf

point.
20

nifv

tO

reCOnSider

t.heir