Adkins v. Wells Fargo Bank, N.A.

Full CitationAdkins v. Wells Fargo Bank, N.A., 434 F.Supp.3d 419 (S.D. W.Va. 2020)
Decision Date16 January 2020
Citation434 F.Supp.3d 419
Docket NumberCIVIL ACTION NO. 3:19-cv-00275
CourtU.S. District Court — Southern District of West Virginia
Parties Brandon ADKINS, et al., Plaintiffs, v. WELLS FARGO BANK, N.A., et al., Defendants.

Matthew P. Stapleton, Scott G. Stapleton, Stapleton Law Offices, Huntington, WV, for Plaintiffs.

Thomas C. Ryan, K & L Gates, Pittsburgh, PA, for Defendants.



Before the Court is a Motion to Compel Arbitration and to Dismiss the Complaint by Defendant Wells Fargo Bank, N.A. ("Wells Fargo"). (ECF No. 7.) For the reasons stated herein, the Motion, (ECF No. 7), is GRANTED IN PART and DENIED IN PART .


According to the Complaint, Plaintiffs fell into arrears over an alleged debt owed to Wells Fargo. (ECF No. 1-1 at 7 ¶ 5.) Wells Fargo attempted to collect on the debt, allegedly making telephone calls and sending letters to Plaintiffs. (Id. ) Plaintiffs retained legal counsel before February 3, 2015. (Id. at 8 ¶ 7.) During one of the phone calls, Plaintiffs allegedly alerted Wells Fargo to their legal representation and provided Wells Fargo the contact information for their attorney. (Id. at ¶ 8.) After this interaction, Wells Fargo purportedly continued to call Plaintiffs "on a regular basis" in attempt to collect on the debt. (Id. at ¶ 9.)

Based on these facts, Plaintiffs filed a complaint in the Circuit Court of Wayne County against Wells Fargo on March 9, 2019, asserting violations of the West Virginia Consumer Credit and Protection Act ("WVCCPA"), W. Va. Code § 46A–1–101, et seq. , intentional infliction of emotional distress, and invasion of privacy. For these claims, Plaintiffs seek actual and statutory damages, punitive damages, and attorney fees and costs. (Id. at 11–12.) Wells Fargo timely removed the case to this Court based on diversity jurisdiction under 28 U.S.C. § 1332. (ECF No. 1.) On June 3, 2019, Wells Fargo filed the present Motion to Compel Arbitration regarding Ms. Adkins and a simultaneous Motion to Dismiss as to both Plaintiffs. (ECF No. 7.) Plaintiffs filed a response on July 15, 2019, (ECF No. 17), and Wells Fargo replied on August 5, 2019, (ECF No. 20). As such, the motion is fully briefed and ripe for adjudication.

A. Motion to Compel Arbitration

The Federal Arbitration Act ("FAA") was in enacted in 1925 to "reverse the longstanding judicial hostility to arbitration agreements ... and to place [them on] the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The Act provides that arbitration clauses in contracts concerning interstate commerce are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Thus, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Id. (citing Volt Info. Sciences, Inc. v. Bd. of Tr. of Leland Stanford Jr. Univ. , 489 U.S. 468, 475–76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) ).

Under section 4 of the FAA, "a party ‘aggrieved’ by the failure of another party ‘to arbitrate under a written agreement for arbitration’ may petition a federal court ‘for an order directing that such arbitration proceed in the manner provided for in such agreement.’ The court ‘shall’ order arbitration ‘upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.’ " Rent-A-Center West, Inc., v. Jackson , 561 U.S. 63, 68, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) (quoting 9 U.S.C. § 4 ). A party seeking to compel arbitration pursuant to this section must establish the following:

(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the [party] to arbitrate the dispute.

Adkins v. Labor Ready, Inc. , 303 F.3d 496, 500–01 (4th Cir. 2002) (quoting Whiteside v. Teltech Corp. , 940 F.2d 99, 102 (4th Cir. 1991) ) (internal quotation marks omitted).

B. Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide "a short and plain statement of the claim showing ... entitle[ment] to relief." McCleary-Evans v. Md. Dep't of Transp., State Highway Admin. , 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists "to give the defendant fair notice of what the ... claim is and the grounds upon which it rests" (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) )). This pleading rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint when it "fail[s] to state a claim upon which relief can be granted ...." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint must contain enough facts, accepted as true, "to state a claim to relief that is plausible on its face." Wikimedia Found. v. Nat'l Sec. Agency , 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). In evaluating the sufficiency of a complaint, a court separates the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer that "the defendant is liable for the misconduct alleged." Iqbal , 556 at 678. A motion to dismiss will be granted if, "after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro , 178 F.3d 231, 244 (4th Cir. 1999).

A. Arbitration Agreement

First, Wells Fargo moves to compel Ms. Adkins to submit her claims for violation of the WVCCPA, intentional infliction of emotional distress, and invasion of privacy to arbitration because they are subject to an arbitration agreement. (ECF No. 8 at 5–7.) As stated above, there are four factors a party must demonstrate for the Court to compel arbitration under the FAA. See supra Part II.A. Here, Plaintiffs contest the second factor, denying the existence of an arbitration agreement between the parties. (ECF No. 17 at 3.) They claim that after Wells Fargo filed its notice of removal, Plaintiffs' counsel asked Wells Fargo to produce the "online application signed by [Plaintiffs]" and proof that the application allegedly submitted "is linked with any documents signed by [Plaintiffs]." (ECF No. 17-1.) To date, Wells Fargo has failed to provide any documentation relating to Plaintiffs' account.

The Fourth Circuit has stated that "even though arbitration has a favored place, there still must be an underlying agreement between the parties to arbitrate." Adkins , 303 F.3d at 501 (quoting Arrants v. Buck , 130 F.3d 636, 640 (4th Cir. 1997) ) (internal quotation marks omitted). Unless the parties have formed an agreement, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."

AT & T Tech., Inc. v. Commc'ns Workers , 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) ; 9 U.S.C. § 3 (requiring "an agreement in writing" for arbitration to proceed). "Whether a party agreed to arbitrate a particular dispute is a question of state law governing contract formation." Adkins , 303 F.3d at 501 (citing First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) ). Further, the West Virginia Supreme Court of Appeals has held that "the proponent of a lost or missing instrument must prove its existence and contents with clear and convincing evidence." Estate of Bossio v. Bossio , 237 W.Va. 130, 785 S.E.2d 836, 841 (2016).

Here, Wells Fargo's argument relies solely on the declaration of its own employee, Jeffrey Hoffman, who states that he has personally examined the business records that purportedly bind Ms. Adkins to arbitration. (ECF No. 7-2 (Hoffman Decl.).) Throughout his declaration, Mr. Hoffman references several documents, including the Credit Card Agreement and Ms. Adkin's online application for a Wells Fargo credit account. He states that Ms. Adkins received a credit account by submitting an online application and that "Wells Fargo's online application system cannot approve a credit card application, let alone issue a credit card, unless the applicant has signed the Credit Card Agreement" and indicates "consent to be bound by the terms of the Arbitration Agreement." (Id. at 2 ¶ 4, 3 ¶ 11.) He goes on to state that "Ms. Adkins signed the Credit Card Agreement," which allegedly includes the arbitration provision that encompasses her claims asserted in this action. (Id. at 2 ¶¶ 6–7, 4 ¶ 12.) Critically, however, Wells Fargo has failed to produce the arbitration agreement allegedly signed by Ms. Adkins let alone any direct evidence relating to Plaintiffs' account or application. Instead, its motion is based solely on an alleged contract and Mr. Hoffman's assurances, which, without more, appears to consist of mere speculation as to what should have occurred based on Wells Fargo's normal course of business.

In its reply, Wells Fargo provides a supplemental declaration of Mr. Hoffman and a redacted application summary with information, including Ms. Adkins' full name, social security number, date of birth, contact information, and the internet protocol ("IP") address from...

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