Bowers et al v. Citibank, N.A. et al

Filing 14

ORDER Granting Motion to Stay and Compel Arbitration. Proceedings are Stayed Pending the Resolution of the Arbitration. The Parties are Directed to Notify this Court Upon the conclusion of the Arbitration. In re 11 Motion to Stay. Signed by Senior Judge Graham Mullen on 10/19/2017. (jaw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No. 3:17-cv-00462
WILLIAM BOWERS and TRACY
BOWERS,
Plaintiffs,
vs.
CITIBANK, N.A. and
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,

CONSENT ORDER GRANTING
MOTION TO STAY AND COMPEL
ARBITRATION

Defendants,
Defendant.
This matter comes before the Court upon the motion of defendant Citibank,
N.A. (“Citibank”) for entry of an order compelling the Plaintiff’s claims in this matter
to arbitration and to stay these proceedings pending a resolution of the arbitration
(the “Motion”). Contemporaneous with the Motion, Citibank filed a Memorandum in
Support of the Motion to Compel Arbitration and Stay the Case and the Declaration
of Kelly Booth. All parties consent to the Motion and the entry of this order.
Based upon a review of the record, the contents of the Motion, the
Memorandum in support of the Motion, and the Declaration of Kelly Booth, and
noting the consent of all Parties, the Court finds and concludes and concludes as
follows:

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1.

This dispute was filed by Plaintiff on July 26, 2017 in Union County

Superior Court against Citibank, a national bank and credit card issuer, for alleged
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), the
North Carolina Debt Collection Act, N.C. Gen. Stat. §§ 75-50, et seq. (“NCDCA”), and
the North Carolina Prohibited Practices by Collection Agencies Act, N.C. Gen. Stat.
§§ 58-70-90 et seq.

Also named as a defendant in the action is AllianceOne

Receivables Management, Inc. (“AllianceOne”), who allegedly attempted to collect
accounts of Citibank.
2.

Plaintiff William Bowers has three credit card accounts with Citibank

ending in 2453, 0439, and 5140. Plaintiff Tracy Bowers is an authorized user of the
5140 account. Each of the accounts is subject to written terms and conditions as
reflected in card agreements (the “Card Agreements”), as amended from time to time.
3.

The Card Agreements include a choice of law provision providing for the

application of federal law and the law of South Dakota, where Citibank is located.
4.

The Card Agreements also contain a binding arbitration agreement (the

“Arbitration Agreements”).
5.

The Arbitration Agreements are identical and provide that either party

can elect mandatory binding arbitration as follows (in salient part):
ARBITRATION:
PLEASE READ THIS PROVISION OF THE AGREEMENT
CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE
RESOLVED BY BINDING ARBITRATION.
ARBITRATION
REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE
RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A
CLASS
ACTION
OR
SIMILAR
PROCEEDING.
IN
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ARBITRATION, A DISPUTE IS RESOLVED BY AN
ARBITRATOR
INSTEAD
OF
A
JUDGE
OR
JURY.
ARBITRATION PROCEDURES ARE SIMPLER AND MORE
LIMITED THAN COURT PROCEDURES.
Agreement to Arbitrate:
Either you or we may, without the other’s consent, elect mandatory,
binding arbitration for any claim, dispute, or controversy between you
and us (called “Claims”).
Claims Covered
What Claims are subject to arbitration? All Claims relating to your
account, a prior related account, or our relationship are subject to
arbitration, including Claims regarding the application, enforceability,
or interpretation of this Agreement and this arbitration provision. All
Claims are subject to arbitration, no matter what legal theory they are
based on or what remedy (damages, or injunctive or declaratory relief)
they seek. This includes Claims based on contract, tort (including
intentional tort), fraud, agency, your or our negligence, statutory or
regulatory provisions, or any other sources of law; Claims made as
counterclaims, cross-claims, third-party claims, interpleaders or
otherwise; and Claims made independently or with other claims. A
party who initiates a proceeding in court may elect arbitration with
respect to any Claim advanced in that proceeding by any other party.
Claims and remedies sought as part of a class action, private attorney
general or other representative action are subject to arbitration on an
individual (non-class, non-representative) basis, and the arbitrator may
award relief only on an individual (non-class, non-representative) basis.
Whose Claims are subject to arbitration? Not only ours and yours,
but also Claims made by or against anyone connected with us or you or
claiming through us or you, such as a co-applicant, authorized user of
your account, an employee, agent, representative, affiliated company,
predecessor or successor, heir, assignee, or trustee in bankruptcy.
*

*

*

Broadest Interpretation. Any questions about whether Claims are
subject to arbitration shall be resolved by interpreting this arbitration
provision in the broadest way the law will allow it to be enforced. This
arbitration provision is governed by the Federal Arbitration Act (the
“FAA”).
*

*

*
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6.

All claims against Citibank stated in Plaintiffs’ Complaint are

encompassed by the language of the Arbitration Agreements. Plaintiffs’ Complaint
alleges misconduct by, and a disagreement with, Citibank concerning the credit card
and related services, specifically, making telephone calls in an effort to collect on a
debt governed by the Card Agreements. Plaintiffs must, therefore, arbitrate the
claims alleged in this case instead of pursuing a lawsuit in this Court.
7.

Further, the Court finds and concludes that the arbitration agreement

extends to and includes the Plaintiff’s claims against AllianceOne.
8.

The Court finds and concludes that the elements that must be

established to compel arbitration have all been established: (1) the existence of a
dispute between the parties; (2) a written agreement that includes an arbitration
provision purporting to cover the dispute and that is enforceable under general
provisions of contract law; (3) the relationship of the transaction, as evidenced by the
agreement, to interstate commerce; and (4) the failure, neglect or refusal of a party
to arbitrate the dispute. See American Gen. Life & Accident Ins. Co. v. Wood, 429
F.3d 83, 87 (4th Cir. 2005).
THEREFORE, IT IS HEREBY ORDERED ADJUDGED AND DECREED
as follows:
1.

The Motion is granted.

2.

The Plaintiff’s claims in this action are compelled to arbitration

pursuant to the Federal Arbitration Act, 9 U.S.C. § 4.

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3.

These proceedings are stayed pending the resolution of the arbitration

pursuant to the Federal Arbitration Act, 9 U.S.C. § 3.
4.

This parties are directed to notify this Court upon the conclusion of the

arbitration.
SO ORDERED.

Signed: October 19, 2017

WE CONSENT:
/s/ Travis E. Collum (w/ permission)
Travis E. Collum, NC Bar No. 29158
Attorney for Plaintiffs
COLLUM & PERRY, PLLC
Post Office Box 1739
Mooresville, NC 28115
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]

/s/ Donald R. Pocock
Donald R. Pocock, NC Bar No. 29393
Attorney for Citibank, N.A.
NELSON MULLINS RILEY &
SCARBOROUGH LLP
380 Knollwood Street, Suite 530
Winston-Salem, NC 27103
Telephone: [phone]
Fax: [phone]
E-mail:
[e-mail]

/s/ Caren D. Enloe (w/ permission)
Caren D. Enloe, NC Bar No. 17394
Attorney for AllianceOne Receivables
Management, Inc.
SMITH DEBNAM NARRON DRAKE
SAINTSING & MYERS, LLP
Post Office Box 26268
Raleigh, NC 27611
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]

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