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Monica v. MBNA America Bank

July 19, 2006

ANN CHRISTINE MONICA, PLAINTIFF,
v.
MBNA AMERICA BANK, N.A., DEFENDANT. MBNA AMERICA BANK, N.A., PLAINTIFF,
v.
ANN CHRISTINE MONICA DEFENDANT.



The opinion of the court was delivered by: Sheridan, U.S.D.J.

OPINION

The above cases were consolidated by Order of the Hon. William Martini on March 9, 2006. Rather than answering in the federal suit, defendant MBNA moves to dismiss for lack of jurisdiction and for failure to state a claim (Fed. R. Civ. P. 12(b)(1) and (6)), and to remand the state suit back to the Superior Court of New Jersey. Meanwhile, plaintiff Monica crossmoves to vacate the arbitration award. Monica has also moved to extend her time to file an Answer and Counterclaim to the Complaint filed by MBNA in the Superior Court of New Jersey which was removed and consolidated herein.

Facts

The facts are relatively straightforward but for several procedural twists. In February 1998, Plaintiff Pro Se, Ann Christine Monica, Esq. ("Monica" or "Plaintiff"), opened a credit card account with defendant, MBNA America Bank, N.A. (the "Defendant" or "MBNA"). Monica's recollection is that the original MBNA credit card agreement did not provide for binding arbitration in the event a dispute arose. MBNA does not appear to dispute this fact. Rather, MBNA asserts that an amendment to the original cardmember agreement was enclosed in the December 1999 monthly statement to all MBNA cardholders including Monica. This amendment became effective unless the cardholder objected within a short period of time. Monica counters that she does not recall receiving such an amendment to the Agreement; and if she had known, she would have objected to the provision.

The amendment contained a provision called the "arbitration and litigation" clause. The clause provided for binding arbitration of all disputes, and they were to be referred to the National Arbitration Forum ("NAF") for hearing.

At some point in July 2004, Monica received a letter from MBNA stating that her account was approximately $31,000 in arrears and payment was demanded. Immediately thereafter, Monica sent a notice of billing error to MBNA. Evidently, MBNA did not respond or explain the charges to Monica as her letter allegedly requested. In March 2005, MBNA filed an arbitration claim with NAF as the amendment to the agreement dictated. Monica objected to the arbitration proceeding because no agreement to arbitrate was ever knowingly entered by her. Despite her protestations, the arbitration continued. In June 2005, without any findings with regard to the validity of the "arbitration and litigation" clause, the arbitrator awarded MBNA its claimed amount plus interest, costs and fees (about $39,000).

On September 23, 2005, MBNA filed suit in New Jersey Superior Court to enforce the arbitration award ("NJ suit").

In October 2005, the arbitrator denied Monica's request for reconsideration. At about the same time, MBNA reported the alleged debt to several major credit reporting companies as "Charged Off, Bad Debt." Monica wrote to the companies demanding that the reporting agencies change their notation on her report to reflect that the "claim is disputed". They declined to do same, which allegedly has caused injury to Monica's reputation, and her ability to obtain credit.

On January 20, 2006, Monica filed suit in this Court alleging violations of the Federal Arbitration Act (9 USCA §1 et seq.). At some point, the Complaint was amended to include allegations that MBNA violated the Fair Credit Reporting Act (15 USCA §1681 et seq.) and the Fair Credit Billing Act (15 USCA §1666 et seq.). Simultaneously, Monica removed the New Jersey suit to this Court. As stated above, these cases have been consolidated.

A. Rule 12(b)(6) Motion

On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the Court is required to accept as true all allegations in the Complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.), cert. denied, Forbes v. Semerenko, 531 U.S. 1149, 121 S.Ct. 1091 (2001). While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). "The pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d § 1357 at 340).

The Court may consider the allegations of the Complaint, as well as documents attached to or specifically referenced in the Complaint, and matters of public record. See, Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998); 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d § 1357. "[A] 'document integral to or explicitly relied upon in the complaint* may be considered 'without converting the motion [to dismiss] into one for summary judgment."* Id. (quoting Shaw v Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). At this point, Monica, an attorney of the State of New Jersey, has certified that to the best of her recollection that she did not receive an amendment to the original credit card agreement, and she did not specifically agree to the Arbitration and Litigation Clause. Based on these facts alone, and all reasonable inferences which may be drawn therefrom, this Court concludes that a prima facie cause of action has been set forth with regard to the validity of the arbitration. Accordingly, the Rule 12(b)(6) motion is denied.

B. Rule 12(b)(1) Motion

Defendant contends that the matter must be dismissed for lack of ...


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