Bey et al v. Midland Credit Management, Inc. et al

Filing 26

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/23/2016. (kw2s, Deputy Clerk)(c/m to both Plaintiffs 3.23.16)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

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MALIK BEY, etal.,

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Plaintiffs,

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v.

Case No.: G.III-15-1329

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MIDLAND CREDIT MANAGEMENT,
INC., etal.,

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Defendants.

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MEMORANDUM

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OI'INION

In this action. which was removed to this Court Ii'om the Circuit Court Il)r Prince
Georgc's County, Maryland. pro sc Plaintiffs Malik Bey and Dawud Best. individually and on
bchalf of others similarly situatcd. (collectivcly. "Plaintitfs")1 allegc thaI Dcfendants Midland
Credit Management. Inc. ("'Midland Credit") and Midland Funding. LLC ("Midland Funding")
(collectively. "Defendants" or "Midland") violated provisions of the Fair Dcbt Collection
Practices Act ("FDCPA"). 15 U.S.c. ~ 1601 el seq.. the Fair Credit Reporting Act. 15 U.s.c. ~
1681 el seq., thc Maryland Consumcr Debt Collcction Act ("MCDCA"). Md. Code Ann .. Com.
Law

9

14.101 el seq., and the Maryland Consumer Protection Act ("MCPA"). Md. Code Ann ..

Com. Law ~ 13-101 el seq. See ECF Nos. I & 2. Presently pcnding before the Court is

I A third PJaintift~ Kimberly
Alston, is also named in a First Amended Complaint. see ECF NO.6. but rhe First
Amended Complaint was not properly filed ill the stale court action before removal to this Court because it did not
include a certificate of service. See Md. Rule 1-323{"'Thc clerk shall not accept for filing any pleading or other paper
requiring service. other than an original pleading. unless it is accompanied by an admission or waiver of service or a
signed certificate showing the date and manner of making service,"); LO\'l!ro \', Do SiI\'a. 28 A.3d 43. 49-50 (Md,
Ct. Spec. App. 20 II) ("[I]t is clear that in adopting Rule 1-323. alld its predecessors. the COlll1of Appeals illlended
that a pleading or paper requiring service that did not contain the appropriate proof of service was not to become a
part of any court proceeding by being 'filed" in the court file of such proceeding."). Thus. the original Complaint.
ECF NO.2, is the operative Complaint.

Defendants' Motion to Compel Arbitration and to Stay Proceedings. or. In the Alternative. to
Dismiss the Complaint? ECr No. 12. The Motion is fully briefed and no hearing is necessary.
See Loe. R. 105.6 (D. Md.). For the reasons that follow. Defendants' Motion is GRANTED.

I.

BACKGROUl\'D
According to the Complaint. Midland Funding "is one of the nation's largest buyers of

unpaid debt" and it works with its "afliliate. Midland Credit ....

to service accounts'" ECF 1'\0.

2 at ~ 3. Mr. Bey alleges that. in October 2012. Midland Credit "bought a debt II'om Citibank.
N.A. in which [Mr. Bey 1 had an unpaid financial obligation'" but the only information that
Midland Credit had respecting the "alleged debt" was the name. address. last payment date.
charge-offdate,3

and balance of the debt.~ Id. at

Citibank on November 9. 2011. Ill. at

'i'i 4-5.

The account had been charged olTby

'I'i 21. 26. On October 21. 2012. Midland Credit sent a

letter to Mr. Bey that was captioned "NOTICE OF NEW OWNERSHIP AND PRE-LEGAL
REVIEW" and stated that Midland Credit was considering forwarding the account to an
attorney for possible litigation. Id. at'i 8 (emphasis in original). Midland Credit never did
forward the account to an attorney. however. and Mr. Bey alleges that it only threatened to do so
2

Also pending is Plaintiffs' Motion to Strike Defendants' Reply. or, In the Altemative. for Leave to File a Surreply.

ECF No. 23. Although Federal Rule or Civil Procedure 12(1) allows the COUl110strike "redundant. immaterial.
impertinent or scandalous matter" fhHll a pleading. a Illotion pursuant to Rule 12(1) may not be used to strike a brief.
See Anusie-HO\l'lIrd v. Todd. 920 F. Supp. 2d 623. 627 (D. Md. 2013). a{rd. 615 F. App', 119 (~th Cif. 2015)
(denying motion to strike and noting that "[a] motion is not a pleading,"). \Vith respect to their request for leave to
file a surreply. Plaintiffs seek to provide the COLIrtwith their own declarations indicating that they never received
nor agreed to the relevant arbitration agreements, See iel at 4-5: ECF Nos, 23- I & 23-2, Plaintiffs have not shown.
however, that these declarations. which arc based on their own first-hand knowledge. include information that was
unavailable to them \\'hen they responded to Defendants' Motioll. Accordingly. their Motion will be denied. See,
e.g., McNeil v. Loyola Un;v.. No. CIV. WDQ-13-1473. 2014 WL 320~9~. at 'II (D. Md. Jon. 27. 201~) (denying
motion for leave to tile surreply where party had "not argued or shown that the new facts and evidence he presents
in his proposed sUITeply were unavailable when he opposed the motion to dismiss""); F.D.l.C \'. Cashion. No,
t: II cvn. 2012 WL 1098619. at '3 (W.D.N.C. Apr. 2. 2012). a[rd. 720 F.3d 169 (~th Cif. 2013) (some).
''''"Chargeoff means the act of a creditor that treats an account receivable or (,lther debt as a toss or expense
because payment is unlikely:' Barl/ell \', /'ortji.J!io Recm'ery.-1ssociafes.
LLC, 91 A.3d 1127. 1132 n.4 (Md, 2014)
(quoting Md. Rule 3-306(a)( I)).
3

of The debt is under the name "Martin Reed:" \vhich is the alias Mr. Bey used when he opened the relevant account,
See ECF No. 12-3.

2

"as an unfair and deceptive collection method to scare [Mr. Bey] into paying the alleged debt."

Id. at ~ 9. Mr. Bey also alleges. il1/er alia. that Defendants seek to collect from him certain
interest that Defendants added to the principal alier thc debt was charged off by Citibank but
before it was sold to Midland Credit. See id. at

'i'i 11-26.

Mr. Best alleges that. on September 26. 2012. tvlidland Funding purchased a debt Ii'om TMobile PCS Holdings LLC C'T-Mobile"). in which. according to Midland Funding. Mr. Best had
an unpaid financial obligation. Id. at ~ 27. Once again. the only inltmnation that Midland Credit
obtained respecting Mr. Best's alleged debt with T-MobiJe was his nntne. address. last payment
date, charge-off date. and balance. Id. at ~ 28. Alier Midland Funding purchascd the debt. a fee
01'$163.71 was added to the principal balance. but it is not clear whether that Ice was a seller ICe
added by Detcndants or if it was the result of accrucd interest. Id. at ,;,; 29-30. Mr. Best alleges
that he contacted T-Mobile and asserted that "he was never contractually liable on the account
and that he was not legally responsible for thc alleged debt." Id. at ~ 32. AT-Mobile
representative told Mr. Best that T-Mobile could not verify who was contractually responsible
for the debt. but that "all documents and/or information was provided to the debt purchaser and if
the debt purchaser does not have the contract [between T-Mobile and Mr. Best]. then a contract
does not exist."Id. at ~ 33. On February 27. 2015. Mr. Best contacted Midland Funding to
inquire about the contract and the basis of the $167.7 t ICc. and he was told that "Midland did not
have any evidence that [Mr. Best] had a contract with T-Mobile[r

and that "Midland 'had no

idea' how the interest amount was assessed on the account." Id. at

'i

35.

Plaintiffs initiated this action in state court on March 2. 2015. alleging that Delcndants'
standard policy and practice is to "purchase no more than an electronic lilc of namcs. addrcsses
and amounts owcd on accounts" that are in delault and that Midland Credit sends alleged debtors

"dunning

letters" that threaten

of whether Defendants

may properly pursue litigation

44--46. Plaintiffs also challenge
on which Midland

litigation irthe debtors do not make prompt payment.

Defendants'

under a particular

practicc oradding

Funding claims to have purchased

regardless

state's laws. !d at ~~

interest to debts prior to the date

the debt. where the prior owner or the debt

did not charge interest during that period. !d at ~~ 48-54.
The present dispute centers on whether Midland.
title, and interest in Plaintiffs'
in the terms and conditions
terms and conditions
agreements

may en!()I'ce arbitration

of the credit card agreement

regarding

provisions

assignee or all right.
that were contained

between Mr. Bey and Citibank or the

Mr. Best's cellular phone services account with T-Mobile.

required that all claims relating to each Plaintiffs

binding arbitration.

S

accounts.

as the purported

Both

account be resolved through

and that any such claim must be brought individually.

rather than as a class5

Specifically, the Citibank agreement stated in relevant part:
PLt"'ASE RE,lD TIfIS PROI'ISIO,\' OF TIfE AGREE.IIEST CAREFUU.I'.
IT I'ROVtDES
THAT
ANY
DISPUTE
MAY
liE
RESOLVED
IIY IIINDING
ARBITRATION.
ARIIITRATION
REI' LACES TIlE RIGHT TO GO TO COURT. INCLUDING TIlE
RIGHT TO A .IUI~Y AND TIlE RIGHT TO I'ARTICII'ATE
IN A CLASS ACTION OR
SIMILAR I'ROCEEIlING ....

\Vhat claims are subject to OIrbitratioll'! All claims relating to your accoullt. a prior related
account. or our relationship arc subject to arbitration ....
\Vllo can he a party'! Claims must be brought in the name of an individual person or emity and
must proceed on an individual (non-class. non-representative) basis ....
This arbitration provision shall survive: (i) termination or changes in {he Agreement. the account,
or the relationship between you and us concerning the account; (ii) the bankruptcy of any party:
and (iii) any transfer. sale or assignment of your account, or any amounts owed on your account.
to any other person or entity ....

ECF No. 12-8 at 6-7 (emphasis in original). The T-Mobile terms and conditions similarly stated:
MANIlATORY
AIHIITRATION
TO
RESOLVE
IlISI'UTES/CLASS
ACTION
WAIVER/JURY TRIAL WAIVER: ARBITRATION.
PLEASE READ THIS PROVISIO;'>l
CAREFULLY. IT MEANS THAT, EXCEI'T AS NOTEIl IlELOW, YOU AND WE WILL
ARBITRATE OUR DISI'UTES. ANY CLAI~1 OR I>ISI'UTE IlETWEEN YOU AND US IN
ANY WAY
RELATED
TO OR CONCERNING
THIS AGREEi\IENT.
OR TIlE
I'ROVISION OF SERVICES OR I'IWDUCTS TO YOU. INCLUDING ANY BILLING
DISI'UTES ("CLAIM").
SHALL BE SUIlMITTED TO FINAL, HINI>ING ARIlITRATION
HEFORE TIlE AMERICAN ARIlITRATION
ASSOCIATION ("AAA") ....
CLASS ACTION WAIVER. WIlETlIEI~
IN COURT. SMALL CLAI~IS COURT. OR
ARBITRATION YOU ANIl WE ~IAY ONLY IlRING CLAIi\IS AGAINST EACH OTIlER
IN AN INDIVII)UAL
CAI'ACITY
ANIl NOT AS A CLASS I~EI'RESENTATIVE OR A
CLASS MEMBER IN ANY CLASS OR REI'RESENTATtVE ACTIO:".

See ECF No. 12-8 at 6-7; ECF No. 22 at 2-3. Defendants argue that. as the assignee ofMr.
Bey's Citibank account and Mr. Best"s T-Mobile account. it has the right to enforce the
respective arbitration agreements and compel arbitration of the claims presented in this action on
an individual, non-class basis. See ECF No. 12-1 at 10-11. 15-16.
In support of their Motion. Defendants attached certain exhibits purporting to sho\\' that
the PlaintifTs' respective debts were properly transferred to Midland. In particular. Defendants
attached the anidavit of Kyle Hannan. an operations managcr for Midland Crcdit. who indicates
that Midland Credit "is the servicer and authorized agent of Midland Funding ... and manages
the debt that Midland purchases." ECF No. 12-4 at ~ 2. Mr. Hannan stated that. pursuant to an
October 17,2012 Bill of Sale and Assignment executed by Citibank. Citibank sold. assigned. and
transferred all rights. title. and interest of a portfolio of charged-ofT accounts to Midland
Funding.Id. at

'15.

One of those accounts was Mr. Bey's. and the transfer included documents

relating to a Home Depot credit card account that he had opened. Id. at

'i

6. The records fi'OIl1

Citibank indicated that Mr. Bey opened the account on August 28. 2006. made purchases on the
account. and made several payments on the account. Id. at
"Card Agreement"-i.

e.• the terms and conditions-that

'i 7. Those

records also included the

was associated with the account. III. at ~

8. Attached as exhibits to Mr. Hannan's affidavit are the bill of sale from Citibank and an
accompanying affidavit of sale by the original creditor. Citibank: "an abstract of the true and
correct data from the electronic file pertaining to the Bey Account:' including the last four digits
of his account number, the date the account was opened. the charge-ofT date and charge-off
amount. the sale amount. and other relevant information; copies of Mr. Bey's credit card

ASSIGNMENT.

We

Illay

assign all or part of our rights or duties under the Agreement

without

such assignment being considered a change to the Agreement. and without notice to you, except to
the extent provided by law ....
Subject to these restrictions. the Agreement will bind the heirs.

successors. subcontractors. and assigns of the respective parties. \vho will receive its benefits ....
ECF No. 22 at 2-3. 10 (emphasis in original).

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statements, and a copy of the Citibank Card Agreement. See iii. at 'i'i 5-8: ECF Nos, 12-5, 12-6,
12-7,12-8. Notably, the Card Agreement provided that ..[tlhis Agreement is binding on you
unless you close your account within 30 days alier receiving the card and you have not used or
authorized use of the card." ECF No. 12-8 at 3.
With respect to Mr. Best's account. Mr. Hannan attested that. through a Septcmber 19.
2012 Bill of Sale and Assignment. T-Mobile sold and transferred Mr. Best's account in a
portfolio of other charged-off accounts. ECF No. 20-1 at'l 5. As with Mr. Bey's account.
Defendants attached a copy of that bill of sale. as well as "an abstract of the true and correct data
from the electronic tile pertaining to the Best Account. which was transferred by T-MobiIe to
Midland [Funding]." including the last four digits of his account number. the date the account
was opened, the last payment date. the sale amount. and other rele\'ant information. See ECF
Nos. 12-9, 12-12. Those records also rellected that Mr. l3est opened the account with T-Mobilc
on October 20,2005. and that his last payment to T-Mobile was made on July 19.20 10. ECF No.

12-9; see also ECF No. 20-1 at ~~ 7-8. Defendants also provided copies of the relevant terms
and conditions that applied to Mr. Best's T.Mobile Account." See ECF Nos. 12-10. 12-11. Like
the Card Agreement related to Mr. Bey's Citibank account. the relevant terms and conditions
applicable to Mr. Best's T-Mobile account providcd that "[bly activating or using our service.
you agree to be bound by these terms and conditions ... ,'. lOCI'No. 12-10 at 2.
Additionally. Mr. Hannan declared that this information was provided as a matter of his
"own personal knowledge of the matters set forth [therein] and based on [his] review of the
business records of[Midland

Credit] and Midland [Funding]." See ECF No. 12-4 at'i 3: ECF

Defendants also supplemented their briefing with the declaration of Christopher Muzio. the custodian of records
for T.Mobile, \\1110 attested that the December 2004 T-Mobile terms and conditions that were attached as an exhibit
to Defendants' Motion were in effect on October 20. 2015 when Mr. Best opened his T-Mobile account. .~'eeECF
NO.2)-!.
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No. 20-1 at ~ 3. lIe indicatcd that the records "were made by. or from information transmittcd
by, a person with knowledge of the events described thcrein, at or near the time of the event
described" and, in particular. that such records "arc kcpt in the ordinary course ofthc regularly
conducted activity of such person and [Midland Credit]"" and that he is "familiar with [Midland
Credit's] and [Midland Funding's] record keeping systcms:' ECF No. 12-4 at~; 3: ECF No. 20-1
at ~ 3. He lu11her indicated that some of the busincss records he relied on "wcrc created by
businesses other than [Midland Credit] or Midland [Funding]" but that those rccords "have been
ineorporatcd into the business records of [Midland Credit] and Midland [Funding] and are relied
upon by them in conducting their business:' ECF No. 12-4 at 'i 4: ECF No. 20-1 at ~ 4.

II.

STANDARD OF REVIEW
A court may compel arbitrationundcr

the Federal Arbitration Act (the "FAA") if the

parties agreed in writing to arbitrate the dispute. AdkillS
01 (4th Cir. 2002); see a/so 9 U.S.c.

S 2 ("[A]n

1'.

Labor Ready. fllc .. 303 F.3d 496, 500-

agreement in writing to submit to arbitration an

existing controversy arising out of such a contract, transaction, or refusal. shall be valid.
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
rcvoeation of any contract."). Thc FAA retlects the strong ledcral policy favoring arbitration.
Moses H Cone ,Hem'/

f-/osp.

1'.

MerclII)' COl1slr. Corp .. 460 U.S. 1,24-25,

103 S.C!. 927

(1983). But "even though arbitration has a favored place, there still must be an underlying
agreement between the partics to arbitrate:' AdkillS, 303 F.3d at 50 I. "Whether a party agrecd to
arbitrate a particular disputc is an issue for judicial determination to be decided as a matter of
contract." Johnson
Inc. v. Commc'lIs

\'. CirclIil City Stores,
Workerso(Am

148 F.3d 373, 377 (4th Cir.1998) (citing A Tef:T Tech.! ..

.. 475 U.S.643,648-49,106S.C!.1415(1986)).

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Courts in this District have recognizcd that "motions to compel arbitration exist in the
netherworld between a motion to dismiss and a motion for summary judgment." Shaffer v. AC.')
Gov 't Servs., fnc .• 321 F. Supp. 2d 682. 683 (D. Md. 2004); see also /'C COllsl. Co. \'. Cilyor
SalisblllJ', 871 F. Supp. 2d 475. 477 (D. Md. 2012). But where the parties disputc the validity of
an arbitration agreement. "lmJotions to compel arbitration ... are treated as motions for
summary judgment." Rose \'. Nell' Day Fill., HC. 816 F. Supp. 2d 245. 251 (D. Md. 20 11).7
Therefore, such motions "shall [be] grant[ed] ... if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). In considering the motion .•. the judge's function is not ... to weigh the evidence
and detennine the truth of the matter but to detennine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby, !Hc.. 477 U.S. 242. 249. 106 S.C!. 2505 (1986). Moreover. the Court
must "view the evidence in the light most favorable to ... the non movant. and draw all
reasonable infercnces in h[is] favor:' Dennis v. Columbia Colleloll :vled Or., InL'..290 F.3d 639.
645 (4th Cir. 2002), but it also must abide by the "aftinnative obligation of the trial judge to
prevent factually unsupported claims and defenses Irom proceeding to trial." Bouchat \'. Ball.
Ravens Football Club. Inc.. 346 F.3d 514. 526 (4th Cir.2003) (internal quotation marks and
citations omitted).
III.

DISCUSSION
In response to Defendants' Motion to Compel Arbitration. Plaintitrs raise two main

arguments. First. they contend that. because Defendants have supplied only "exemplar" terms
See also Shaffer. 32 t F. Supp. 2d at 683-84 ("[IJn order to efTectivel)' assess the merits of this motion [to compel
....
the court must consider documents outside the pleadings. As such, the COllrt will treat Defendant's
motion as a motion for summary judgment:' (citing Fed. R. Civ. P. 12(c))); Galloway l'. Sa11lullder ('oJ1sul11er USA.
Inc., No. CIY. CCB-13-3240. 2014 WL 4384641. at *2 (D. Md. Sept. 3. 2014) ("[DJistrict coul1s in this circuit have
applied a summary judgment-like standard to the question of whether a contract to arbitrate was formed:'): accord
Tickanen v. Harris & Harris. Ltd.. 46\ F. Supp. 2d 863. 866 (E.D. Wis. 2006) t"Motions to compel arbitration are
reviewed under a summary judgment standard as set forth in Federal Rules of Civil Procedure 56(c)"" (citing ParKnil Mills, Inc. v. Stockbridge Fabrics Cu., 636 F.2d 51. 54n. 9 (3d Cir. \980».
7

arbitration]

8

and conditions for the respective accounts, rather than signcd copies of such agreements,
Defendants havc failed to satisfy their burdcn of establishing that Plaintiffs agreed to arbitrate
their claims, See ECF No. 19 at 2-6. Second. they arguc that Defendants have failed to
demonstrate that Citibank or T-Mobile did. in fact. assign Plaintiffs' rcspcctive dcbts to Midland.
[d. at 6-9. Plaintiffs have not argued. howcvcr. that ifthc arbitration agrccments arc valid. that
their claims fall outside ofthc scope of those agreemcnts. nor have thcy argued that the class
action waivcrs included in thc arbitration agreements arc invalid. See Green Tree Fill. Corp. \'.
Bazzle, 539 U.S. 444, 452. 123 S. Ct. 2402 (2003) (noting that courts must determinc "gateway
matters" to arbitration, "such as whether the partics havc a valid arbitration agrccmcnt at all or
whether a concededly binding arbitration clause applics to a certain typc of controvcrsy."). Thus,
assuming the arbitration agrcements arc cnforccable againstl'laintiffs

and that Defcndants may

properly invoke thosc agrecments against Plaintiffs. then all of the claims prcscntcd in this casc
must be submitted to arbitration.
Plaintiffs first argument. namely. that Defcndants havc I~lilcdto provc thc cxistence or a
valid arbitration agrccment because Plainti ffs havc not signed any such agrecmcnt. must bc
disregarded. Although it is truc. of course. that "arbitration is a mattcr of contract and a party
cannot be requircd to submit to arbitration any dispute which hc has not agrccd so

10

submit. ...

lilt docs not follow ... that under thc [Fedcral Arbitration] Act an obligation to arbitrate attaches
only to one who has personally signcd the writtcn arbitration provision:' 1111
'1Paper Co. \'.
Schwahedissen

Ma.l'chinen & Anlagen

GMBII. 206 F.3d 411. 416 (4th Cir. 2000) (intcrnal

quotation marks and citations omitted).8 "Rathcr. a party can agrce to submit to arbitration by

8 See also Cal~l' l'. Gul(.<lream Aerospace Corp., 428 F.3d 1359. 1369 (11lh Cir. 2005) ("We readily conclude that
no signature is needed to satisfY the FAA's written Jgrecmcnt requirement. First. the plain language of ~ 2 requires
that the arbitration provision be "written:' It does not. however. require that the agreement to arbitrate be signed by
either party; nor does any other provision of the FAA."); Tinder \'. Pinkerton Sl!c., 305 F.3d 728. 736 (7th Cir. 2002)

9

means other than personally signing a contract containing an arbitration c1ausc:' Jd.: see also
Stephen L. :vfessersmith. Inc. \'. Barclay Tml"l1hollseAssocs .. 547 A.2d 1048. 1050 n.1 (Md.
1988) ("'In order to be valid and cnforeeable. an agreement to arbitrate must bc in writing:
however, thcre is no rcquirement that the writing be signed."). Moreovcr. thc Card Agrecment
that governcd Mr. Bey's use of his credit card and thc tcrms and conditions that governcd Mr.
Best's use of the T-Mobile cellular services both provided that those agrccmcnts would bind
each Plaintiff upon their use of the respective services-not

upon their signing any such

agreement. See ECF No. 12-8 at 3; ECF No. 12-10 at 2: see also Se{{lrrig!Jt I'. :1m. (Jell. Fill.
Servs., Inc., 507 F.3d 967. 972-73 (6th Cir. 2007) (finding that cmployec agrecd to arbitratc
employment disputes by continuing employment alier effcctive date of alternative dispute
resolution program; continued employmcnt constituted cmployee' s acceptance of agrcement to
arbitrate); Whitman

I'.

Capital One Bank (USA). NA., No. CIV.A. WMN-09-1737. 2009 WL

4018523, at *2 (D. Md. Nov. 19.2009) ("CoUlts have consistcntly held that [tlhc usc offcredit]
cards amounts to acceptance of the tenns of the cardholder agrccmcnts."' (internal quotation
marks and citation omitted)): Bel1/aolls \'. Asset Acceptance. LLC. No. CIV. JFM-13-3314. 2014
WL 5790946, at *2 (D. Md. Nov. 4. 2014), appeal dismissed. 614 F. App'x 669 (4th Cir. 2015)
("'[Plaintiff1 accepted the tenns and conditions

lincluding

the arbitration agreemcnt thcrein I by

keeping the computer equipment she initially purchased and by using the account to purchasc

("Although ... the FAA requires arbitration agreements to be written. it does not require them to be signed:');
Genesco, Inc. \'. T. Kakillchi'* Co .. 815 F.2d 840. 846 (2d Cir. 1987) ("[1]1 is well-established that a party may be
bound by an agreement to arbitrate even absent a signature .... IW]hile the Irederal Arbitration] Act requires a
\vriting. it does not require that the writing be signed by the parties."); /'alero Ref. Inc. \'. ,\flT I.aubi!rhorn. 813 F.2d
60, 64 (5th Cir. 1987) ("It is established that a party may be bound b)..'an agreement to arbitrate even in the absence
of his signature.").

10

additional computer equipment over the years.'"). Thus. the tact that Plaintiffs did not sign the
9

respective agreements does not make the arbitration agreements any less binding against them.
Nevertheless. only if Defendants are indeed the assignees of Plaintiffs' debts may they
enforce the arbitration agreements that Mr. Bey and Mr. Best entered with Citibank and T-

Mobile, respectively. Defendants have submitted sufticient evidence to that effect. Specillcally.
with respect to Mr. Bey's debt. Defendants have submitted a bill of sale and an accompanying
affidavit of sale by the original creditor. Citibank. and. through Mr. Hannan's aftidavit.
established that Mr. Bey's account was one of the accounts included in that bill of sale. See ECl'
No. 12-4 at ~~ 5-6; ECl' No. 12.5; ECl' No. 12-6. Defendants similarly submitted a bill of sale
from T-Mobile with respect to Mr. Best's debt. and again. through Mr. Hannan, established that
Mr. Best's account was one of those transferred through that bill of sale. See ECl' No. 20-1 at 1;~
5-6; ECF No. 12-12; see a/so Bart/ell

l'.

PortfiJlio Recol'el)' Associates. LLC'. 91 A.3d I 127.

1147 (Md. 2014) (noting that redacted '"bill of sale'" was not sufticient evidence that assignee had
purchased credit card debt. but that proof of assignment was sufticient where it was accompanied
by an affidavit of a custodian based on that person' s personal knowledge of account records
maintained by assignee).
Plaintiffs argue, however, that Mr. llannan could not properly attest to the reliability of
the data contained in Midland's records with respect to Plaintiffs' respective debts because those
records came from Midland's predecessors-in-interest-Citibank

and T-Mobile-and

therefore

Mr. Hannan laCKSpersonal knowledge over ,,'hether the data contained therein is true and

Although Plaintiffs also argue that the dates of the relevant contracts do not coincide with the dates 011 which
Defendants allege that Plaintiffs opened their respective accounts. see ECF No. 19 at 2-3. the evidence submitted by
Defendants proves otherwise. With respect to Mr. Bey's account. the Card Agreement became effective on February
3,2009 and was the agreement that was in effect on the date Mr. Bey last made a payment on his account. ,r.;/!I! EeF
No. 12-8 at 2; EeF No. 12-6. \Vith respect to Mr. Best"s account. the relevant T-Mobile terms and conditions
agreement went into elTect in December 2004 and were in effect when f\rlr.l3est opened his T-Mobile account on
October 20, 2005. S,'e ECF No. 12- I0 at 2; ECF No. 21- I at 'i 5.
9

II

correct. See ECF No. 19 at 7. In esscnce. they argue that any such evidence regarding Midland's
purchase of Plaintiffs' debts is inadmissible and cannot support Defcndants' Motion to Compel
Arbitration. See, e.g., Orsi \'. Kirlorood, 999 F.2d 86. 92 (4th Cir. 1993) (..It is wcll cstablished
that unsworn, unauthenticatcd documcnts cannot bc considcrcd on a motion lix summary
judgment"); Planlllalics, Inc. \'. ShOlrers. 137 F. Supp, 2d 6 I6. 620 (D, Md, 200 I) ("'On a motion
for summary judgmcnt, a district court may only considcr cvidcncc that would be admissible at
trial" (citations omittcd», Although in attcsting to the relcvant ini(JI'Ination rcspccting Plaintiffs'
debts Mr. Hannan relied on some busincss records that wcre created by busincsses othcr than
Midland Credit or Midland Funding, he explaincd that such records have bccn incorporated into
Midland's business records "'and are relicd upon by thcm in conducting thcir busincss" See lOCI'
No. 12-4 at ~ 4; ECF No, 20-1 at '14, Such evidcnce may properly be considcrcd by thc Court
under the business rccords exccption to the rule against hearsay. See Fed. R. Evid. 803(6):
Brawner v, Allslale Indelll. Co" 591 FJd 984. 987 (8th Cir. 2010) ("[A] rccord creatcd by a third
party and integrated into anothcr cntity's records is admissible as the record of the custodian
entity, so long as the custodian cntity relicd upon thc accuracy ofthc record and the othcr
requirements of Rule 803(6) are satislied,"): Uniled Slales \', Adefehinli, 5 I0 FJd 3 I9, 326 (D.C.
Cir. 2007) ("'[AJ record of which a finn takes custody is thcrcby 'madc, by thc linn within thc
meaning of the rulc (andlhus is admissible if all thc other rcquirements

r to the business

rccord

hearsay exception] are satisfied),"): see also Uniled S/tiles \'. /Vein. 521 F. App'x 138, 140 (4th
Cir. 2013) (noting that custodian of records need not bc able to "confirm the accuracy ofthc
records in order to be a qualified witness" to authenticate busincss records). Thus, Defendants
submitted sufficicnt evidcnce to establish that Midland is indecd the assignee of PlaintifTs'

12

respective debts, and, accordingly, that Defendants may cnforcc thc arbitration agreements
entered between Plaintiffs and Midland's predecessors in intcrest.
Finally, although the FAA requires a court, upon motion by any party, to stay judicial
proceedings involving issues covered by written arbitration agreements, see 9 U.S.c. ~ 3, the
United States Court of Appeals for the Fourth Circuit has held that "[njotwithstanding
of

S 3 ...

the terms

dismissal is a proper remedy when all of the issues presented in a lawsuit are

arbitrable." Choice Hole/s /nl'l, /I1C. 1'. BSR Tropiclll1(/ Resorl. /I1C.,252 FJd 707. 709-10 (4th
Cir. 200 1). Because all of Plaintiff's' claims in this case are subject to arbitration. dismissal of
this action is appropriate.
IV.

CONCLUSION
For the foregoing reasons, Defendants' Motion to Compel Arbitration. ECF No. 12, is

GRANTED, and this action is DISMISSED. Plaintiff's' Motion to Strike Defendants' Reply. or,
In the Alternative. for Leave to File a Surreply, ECF No. 23. is DENIED. A separate Order
follows.

Dated: March

l~
.2016
GEORGE J. HAZEL
United States District Judge

13