Nicholas Malfitano Feb. 17, 2016, 1:36pm


PHILADELPHIA – After having its motion to dismiss and compel arbitration against one of its cardholders initially denied, a renewed motion using additional discovery evidence proved successful for Credit One Financial.

Judge Timothy J. Savage of the U.S. District Court for the Eastern District of Pennsylvania said in a Thursday ruling the initial denial of Credit One’s motion was due to the supposed lack of “an enforceable arbitration agreement”, but further discovery and review of the record as to the subject of arbitrability, yielded exactly such an agreement.

“After reviewing the record, we conclude that plaintiff Hilda Griffin agreed to arbitrate her dispute with Credit One. Therefore, we shall grant the defendant’s motion,” Savage said.

The dispute in plaintiff Hilda Griffin’s suit came not from her claims of Credit One violating the Telephone Consumer Protection Act (TCPA) not falling within the scope of the arbitration policy, but rather, that Credit One did not provide her with the cardholder agreement containing notice of the mandatory arbitration provision.

In contrast, Credit One sought to prove they did in fact provide Griffin with the cardholder agreement, through including it with the credit card in a mailing to her.

“Credit One has produced evidence that Griffin received the cardholder agreement. Its records reflect that a credit card pre-approval letter was mailed to Griffin on Nov. 13, 2012,” Savage said.

“The letter contained a summary of the account’s terms and conditions, including arbitration. Griffin accepted the solicitation when she opened an account through Credit One’s website on Nov. 20, 2012. Credit One then mailed a credit card to her, which she signed and activated,” Savage added.

In response, Griffin did not deny receiving the documents but pled “ignorance and lack of recollection” as to their reception in a deposition she gave on the matter, adding “she did not “remember looking at papers” she had received from Credit One.

Savage said Credit One produced a sworn declaration essentially confirming the agreement had been sent to Griffin.

“Gary Harwood, Vice-President of Portfolio Services, confirmed that the cardholder agreement containing the arbitration provision was sent with the credit card to Griffin in the regular course of business. He further declared that Credit One has no record of any returned mail related to the account,” Savage stated.

Savage added Griffin was unable to produce any evidence on rebuttal that she did not receive the cardholder agreement, only that she did not remember receiving or reading it.

“Given the absence of any evidence to the contrary, it is undisputed that Griffin received the cardholder agreement and agreed to its terms when she activated the card,” Savage said.

Griffin also alleged “unconscionability” on Credit One’s part, because the arbitration clause was supposedly “buried in an adhesive contract that provided her no meaningful choice” – but Savage termed that argument as “frivolous”.

“Griffin simply did not bother to read the documents, including the cardholder agreement. Indeed, she claimed she is not ‘the most responsible person’ when it comes to her credit cards,” Savage said.

Savage added Griffin could not then claim she didn’t understand the terms or was misled by them, and thus, cannot argue she was not given a meaningful choice to accept or reject the terms of the cardholder agreement.

“Because there was a valid and enforceable arbitration agreement, we shall grant Credit One’s motion to compel arbitration. Rather than staying the action, we shall dismiss it without prejudice,” Savage said.

The plaintiff is represented by Craig Thor Kimmel of Kimmel & Silverman, in Ambler.

The defendant is represented by Ross S. Enders and Dayle M. Van Hoose of Sessions Fishman Nathan & Israel, in both Furlong and Tampa, Fla.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-03700

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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