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Cohen v. Chase Bank

January 20, 2010

JOY COHEN PLAINTIFF,
v.
CHASE BANK, N.A. AND MANN BRACKEN, LLC, DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

FOR PUBLICATION

OPINION

Plaintiff, Joy Cohen ("Cohen"), and Defendant, Chase Bank N.A. ("Chase"), each move for summary judgment. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the motions are decided without oral argument. Cohen's motion is denied. Chase's motion is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Cohen is a resident of Bergen County, New Jersey. (Compl. ¶ 6.) Chase is a national banking corporation headquartered in Delaware. (Compl. ¶ 7; Answer ¶ 7.) In September 1994, Cohen opened a revolving line of credit with First USA Bank, N.A., now known as Chase. (Answer ¶ 9; Chase Facts ¶ 2, n.1; Cohen Facts ¶ 4.)*fn1 Chase then mailed Cohen a packet containing her credit card and a Cardmember Agreement ("the Agreement") setting forth the terms of the relationship between Cohen and Chase. (Chase Facts ¶ 2; Cohen Reply Facts ¶ 2; Compl. Ex. A.)*fn2 The Cardmember Agreement stated:

Amendments: We can amend the terms of this Agreement at any time. We will notify you by mail of what these amendments are. Subject to the requirements of applicable law, any amendment to this Agreement will become effective at the time stated in our notice to you and the amended terms of this Agreement will apply to all outstanding unpaid indebtedness in your Account as well as new transactions. (Chase Facts ¶ 3; Demczak Aff. Ex. B; Compl. Ex. A.) Chase later amended the Cardmember Agreement by mailing Cohen form notices of amendments to the Agreement. Two of these mailings -- which are often popularly referred to as "bill stuffer" amendments -- are pertinent to this case.

First, in January 1998, Chase mailed Cohen a form notice entitled "Important Notice [] About Changes to Your [] Cardmember Agreement." (Chase Facts ¶ 5; Cohen Reply Facts ¶ 5; Cohen Facts ¶ 4.) The relevant portions of this mailing read:

ARBITRATION: Any claim, dispute or controversy ("Claim") by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure in effect by the National Arbitration Forum, under the Code of Procedure in effect at the time the Claim is filed....

Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Judgment upon any arbitration award may be entered in any court having jurisdiction. This arbitration agreement applies to all Claims now in existence or that may arise in the future....

IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH A COURT, AND/OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS, BUT EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST NOW BE RESOLVED THROUGH ARBITRATION. (Chase Facts ¶ 6; Cohen Facts ¶ 4; Compl. Ex. C.) In March 2005, Chase mailed Cohen another form notice. (Chase Facts ¶ 9; Cohen Reply Facts ¶ 9.) The relevant portions of this mailing read:

ARBITRATION: The following replaces the section entitled "Arbitration": PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT.... IN THE ABSENCE OF THIS ARBITRATION AGREEMENT, YOU AND WE MAY OTHERWISE HAVE HAD A RIGHT OR OPPORTUNITY TO BRING CLAIMS IN A COURT, BEFORE A JUDGE OR JURY, AND/OR TO PARTICIPATE OR BE REPRESENTED IN A CASE FILED IN COURT BY OTHERS (INCLUDING CLASS ACTIONS AND OTHER REPRESENTATIVE ACTIONS). OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION MAY BE MORE LIMITED. EXCEPT AS OTHERWISE PROVIDED BELOW, THOSE RIGHTS ARE WAIVED....

Initiation of Arbitration. The party filing a claim in arbitration must choose one of the following two arbitration administrators: American Arbitration or National Arbitration Forum. These administrators are independent from us. The administrator does not conduct the arbitration. Arbitration is conducted under the rules of the selected arbitration administrator by an impartial third party chosen in accordance with the rules of the selected arbitration administrator and as may be provided in this Arbitration Agreement. Any arbitration hearing that you attend shall be held at a place chosen by the arbitrator or arbitration administer within the federal judicial district in which you reside at the time the Claim is filed or at some other place which you and we agree in writing. (Chase Facts ¶ 10; Demczak Aff. Ex. F.)*fn3 Both the January 1998 and the March 2005 notices contained contact information for the arbitration administrators and suggested methods for obtaining the applicable rules and forms of the administrators. (Chase Facts ¶¶ 5-6, 9-10; Compl. Ex. C; Demczak Aff. Exs. E, F.)

Cohen admits that both notices were mailed to her, that the notices were not returned to Chase as undeliverable, and that she continued to use her credit card after the notices were mailed to her. (Cohen Reply Facts ¶¶ 4-9, 12-13; Cohen Facts ¶ 4.)

In April 2006, Chase mailed Cohen a monthly statement, which showed that she owed $37,997.30 on her account, $3,780 of which was past due. (Chase Facts ¶ 15; Cohen Reply Facts ¶ 15.) Cohen then sent a letter to Chase, which she characterized as a "formal written Notice and Demand to Chase for adequate assurance of performance with respect to the above listed account." (Chase Facts ¶ 16; Cohen Reply Facts ¶ 16; Demczak Aff. Ex. H.) In the letter, Cohen stated that she had "conducted a full and complete investigation into this matter" and was "of the opinion that Chase may be in breach of the terms of the Credit Card Agreement, by its failure to provide adequate and valuable consideration or full disclosure of the material terms and conditions of the alleged original agreement." (Id.) Cohen stated that she would only resume payments on the account upon Chase's signing of an attached affidavit, which affirmed, among other things, that Chase was in compliance with Generally Accepted Accounting Principles, the Sarbanes-Oxley Act of 2002, and the USA PATRIOT Act. (Id.) On June 2, 2006, Chase responded, stating that it complies with all applicable laws and that Cohen was obligated to pay the balance on her account, which by then had reached $39,024.39. (Chase Facts ¶ 17; Cohen Reply Facts ¶ 17; Demczak Aff. Ex. I.)

In October 2006, Chase filed a claim against Cohen with the National Arbitration Forum ("NAF") to collect the balance owed on Cohen's account. (Chase Facts ¶ 18; Cohen Reply Facts ¶ 18; Demczak Aff. Ex. J.) On October 10, 2006, Chases's collection agent, Mann Bracken, LLC ("Mann Bracken"), sent a letter to Cohen informing her about the arbitration claim and offering her the opportunity to avoid arbitration by settling her account for 75% of the principal balance, which by then had reached $42,331.28. (Id.) Cohen then sent letters to Mann Bracken and to the NAF, in which she objected to the "'bogus' Arbitration ploy" and "unscrupulous ways" of Mann Bracken and the NAF; alleged that collection phone calls from Mann Bracken had "intensified to a level of pure Harassment;" asserted that the "'Forum' was biased and committing fraud upon the consumer;" stated that she would not participate in the NAF's "'Kangaroo Court;'" threatened to sue the NAF and the arbitrator for "mail and wire fraud" unless they agreed to "cease and desist this 'action' immediately;" and advised that "there is no immunity for an arbitrator if an element of fraud exists." (Chase Facts ¶ 19; Cohen Reply Facts ¶ 19; Demczak Aff. Ex. K.)

Cohen now states that she was "unfamiliar with what [she] was supposed to do" in response to the arbitration notice and relied on her husband, who is not a lawyer, to help her draft these letters. (Cohen Cert. ¶¶ 6-7.) She states that "[k]nowing what [she] know[s] now, [she] would not have written those letters the same way," but maintains that the letters "make the point that [she] disputed whether there was any binding contract to arbitrate any dispute with Chase -- which is what [she] understand[s] this case to be all about." (Id. at ¶ 8.)

On December 5, 2006, the NAF sent Chase and Cohen a letter scheduling a document hearing, which included information regarding the arbitrator and the procedure for submitting documents for the arbitrator's review. (Chase Facts ¶ 21; Cohen Reply Facts ¶ 21; Demczak Aff. Ex. L.) On January 3, 2007, following a document hearing, the NAF awarded $45,956.28 to Chase. (Chase Facts ¶¶ 22-23; Cohen Reply Facts ¶¶ 22-23; Compl. Ex. H; Demczak Aff. Ex. M.)

Cohen brought this action against Chase and Mann Bracken on March 30, 2007. (Dkt 1.) Cohen initially alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq., against Mann Bracken (Compl., Counts One through Six.), but settled with and voluntarily dismissed Mann Bracken LLC on October 20, 2009 (Dkt 76). Only Cohen's claims against Chase remain. Cohen alleges that no arbitration agreement exists between her and Chase. She asks the Court to declare that no arbitration agreement exists and to permanently enjoin Chase from proceeding against her by way of arbitration, or, in the alternative, to vacate the arbitration award and permit a rehearing. (Compl. Counts Seven and Eight, Prayer for Relief.)

On June 12, 2009, Chase moved for summary judgment. (Dkt 45.) Cohen opposed this motion, and, on June 15, 2009, filed her own motion for summary judgment. (Dkt 51.) These motions are now before the Court.

STANDARD OF REVIEW

Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson at 248. The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex v. Catrett, 477 U.S. 317, 318 (1986)).

Once the moving party has carried its burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts" in question." Scott v. Harris at 380 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). To survive a motion for summary judgment, a non-movant must present more than a mere scintilla of evidence in his favor. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). It must set forth specific facts showing a genuine issue for trial, Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001), and may not rest upon the mere allegations or denials of its pleadings.

At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 276-7 (3d Cir. 2002).

"[W]here motions for summary judgment are made by both parties, if the pleadings present a genuine issue as to a material fact, there can be no valid summary judgment of the disputed facts." Tomalewski v. State Farm Life Ins. Co., 494 F.2d 882, 884 (3d Cir. 1974) (citations omitted). As the Eight Circuit has stated, "Summary judgment should be granted sparingly, and we do not assume that no material facts remain in dispute simply because both parties moved for summary judgment." Matter of Citizens Loan and Sav. Co., 621 F.2d 911, 913 (8th Cir. 1980) (citations omitted). Rather, "[t]he court must rule on each motion separately in determining whether each judgment may be entered in accordance with applicable principles. Indeed, both motions should be denied if both parties ...


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