Atl. Credit & Fin. Special Fin. Unit, LLC v. Stacy ex rel. Situated
| Decision Date | 26 October 2018 |
| Docket Number | No. 17-0615,17-0615 |
| Court | West Virginia Supreme Court |
| Parties | ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT, LLC, ASSIGNEE OF SYNCHRONY BANK, Plaintiff and Counterclaim Defendant Below, Petitioner, v. COURTNEY R. STACY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Defendant and Counterclaim Plaintiff Below, Respondent. |
The petitioner (plaintiff and counterclaim defendant below), Atlantic Credit & Finance Special Finance Unit, LLC, appeals the order of the Circuit Court of Wyoming County entered on March 6, 2017, denying the petitioner's motion to compel arbitration and to dismiss the putative class action counterclaim filed by the respondent (defendant and counterclaim plaintiff below), Courtney R. Stacy. The parties are represented by counsel: Ashley W. French, Matthew L. Ward, and Daniel J. Konrad for the petitioner and Troy N. Giatras, Matthew Stonestreet, Ralph C. Young, and Steven R. Broadwater, Jr., for the respondent.
Upon review of the parties' briefs, oral arguments, and appendix record, we find that this case does not present a new or significant question of law and satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure, making it appropriate for a memorandum decision rather than an opinion. Having considered the applicable standard of review and the record presented, and for the reasons expressed below, the decision of the circuit court is reversed and this case is remanded for further proceedings consistent with this memorandum decision.
In support of its motion to compel arbitration, the petitioner submitted the affidavit of Jodi Anderson, a litigation analyst with Synchrony Bank,1 formerly GE Capital Retail Bank. Ms. Anderson attests to her personal knowledge of the bank's business records, which showed that on or about February 4, 2014, a Care Credit account was applied for online in the respondent's name with Synchrony Bank,2 attaching a "true and accurate copy" of the online application to her affidavit. Ms. Anderson further attests that on that same day, Synchrony Bank approved the application and opened a Care Credit account in the respondent's name, adding that on or about February 10, 2014, the plastic credit card and the applicable Credit Card Account Agreement ("Credit Agreement") were mailed to the respondent to the address provided in the online application. Ms. Anderson attached to her affidavit what she described as a "true and accurate copy" of the "effective credit card agreement that governed the Account." This Credit Agreement provides that "[b]y opening or using your account, you agree to the terms of the entire Agreement." Also attached to Ms. Anderson's affidavit were copies of Synchrony Bank billing statements that were mailed to the respondent at the same address. These billing statements reflect that the card was used to purchase services, and that payments were made on the account.
The respondent admitted in his discovery responses that he used the credit card account.3 He did not submit any evidence challenging Ms. Anderson's sworn affidavit, such as an affidavit of his own denying that he applied online for the credit card or denying that he received the plastic credit card and the Credit Agreement in the mail.
The Credit Agreement contains a section titled: RESOLVING A DISPUTE WITH ARBITRATION, which provides, in part, as follows:
Ms. Anderson attests that Synchrony Bank maintains any correspondence received from its customers as part of its regular course of business and that she did not find any record of the respondent exercising his right to reject the arbitration section of the Credit Agreement.
According to Ms. Anderson's affidavit, Synchrony Bank records show that the last payment made on the respondent's account was on September 17, 2014. She avers that the bank "charged off" the account on April 29, 2015, due to nonpayment, after which it sold the respondent's "Account" to the petitioner on June 20, 2015. Also attached as an exhibit to her affidavit was a copy of a "Bill of Sale" dated June 20, 2015, which provides, as follows:
For value received and in further consideration of the mutual covenants and conditions set forth in the Forward Flow Receivables Purchase Agreement (the "Agreement"), dated as of this 8th day of July, 2014 by and between Synchrony Bank formerly known as GE Capital Retail Bank ("Seller"), and Atlantic Credit & Finance Special Finance Unit, LLC ("Buyer"), Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its successors and assigns, without recourse except as set forth in the Agreement, to the extent of its ownership, the Receivables as set forth in the Notification Files (as defined in the Agreement), delivered by Seller to Buyer on June 20, 2015, and as further described in the Agreement.
Ms. Anderson avers that this Bill of Sale, as well as another document attached to her affidavit, which she represents is "Stacy Account information extracted from Synchrony data file," reflect that Synchrony Bank A copy of the Forward Flow Receivables Purchase Agreement referenced in the Bill of Sale was not attached as an exhibit to Ms. Anderson's affidavit nor was it otherwise presented to the circuit court.4 The affidavit of Sarah Wilson, Director of Compliance with Atlantic Credit & Finance, Inc., was also filed in support of the motion to compel arbitration. Ms. Wilson similarly attests to the petitioner having purchasedthe respondent's "credit card account" from Synchrony Bank "as part of a larger sale of account agreements."
On December 28, 2015, the petitioner filed an action against the respondent in the Magistrate Court of Wyoming County seeking to collect the past due balance on the credit card in the amount of approximately $720.22. The respondent removed the action to the Circuit Court of Wyoming County where he filed an answer to the complaint, as well as a putative class action counterclaim in which he alleged unjust enrichment, negligence, and claims under the West Virginia Consumer Credit and Protection Act, West Virginia Code §§ 46A-1-101 to -8-102.
The petitioner filed an answer to the counterclaim and, thereafter, the parties engaged in some written discovery. On June 7, 2016, the respondent filed a motion to compel class discovery, which the circuit court granted in an order entered on August 31, 2016. Soon thereafter, the petitioner filed a motion to compel arbitration and to dismiss the class allegations under West Virginia Rule of Civil Procedure 12(b)(6), the arbitration agreement set forth in the Credit Agreement. The petitioner asserted that the arbitration agreement should be addressed under Utah law given the choice of law provision in the arbitration agreement and that, under Utah law, there was a valid and binding arbitration agreement and the right to seek arbitration was not waived by the petitioner. The respondent opposed the motion, arguing, inter alia, that petitioner failed to prove who applied online for the credit card or that an arbitration agreement existed; that even if such an agreement existed, it was both procedurally and substantively unconscionable; and that the petitioner waived any right it might have had to compel arbitration under West Virginia law.
The circuit court held a hearing on the motion after which it entered an order on March 6, 2017, denying the motion to compel arbitration. The lower court did not address the choice of law issue, stating "the Court does not reach the issue of a choice of law provision in a contract that does not exist." The circuit...
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