Edelist v. MBNA America Bank
Decision Date | 09 August 2001 |
Docket Number | No. 01,01 |
Citation | 790 A.2d 1249 |
Parties | Daniel EDELIST, an individual, on behalf of himself and all others similarly situated, Plaintiff, v. MBNA AMERICA BANK, Defendant. |
Court | Delaware Superior Court |
John S. Spadaro, and Jonathan L. Parshall, of Murphy, Spadaro & Landon, Wilmington, and Gretchen Carpenter (argued) of Strange & Hoey, Los Angeles, CA, for plaintiff. Kathleen M. Jennings, of Oberly & Jennings, P.A., Wilmington, and Richard C. Pepperman, II (argued) of Sullivan & Cromwell, New York City, for defendant.
Plaintiff Daniel Edelist has filed an action on his own behalf and a putative class action against MBNA America Bank. The claims arise out of his credit card account and the accounts of others he alleges are similarly situated. He seeks damages for himself and the class for alleged breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent or negligent misrepresentation and violation of the Delaware Consumer Fraud Act.
MBNA has moved to stay or dismiss his action on the strength of an arbitration provision which it claims forms part of his credit card agreement. The arbitration provision was part of an amendment sent out to Edelist and others after they entered into their initial agreements. It provides for arbitration of all disputes and that there will be no jury trial concerning these disputes. Each credit cardholder was given the opportunity to opt out of the proposed amendment. Edelist did not exercise that option.
As a general rule, Delaware law permits credit card agreements to be unilaterally amended as was done here. It is an issue of first impression, however, whether Delaware law permits the right to jury trial to be amended in the manner done here. Edelist, however, is a California resident. California law will not enforce such unilateral amendments and will not recognize the waiver of jury trial rights in the way done here.
The issues, therefore, are which state's law applies, California or Delaware. If Delaware law applies, the issues are whether MBNA properly amended Edelist's credit card agreement and if the waiver of jury trial is valid.
The Court holds Delaware law applies. MBNA properly amended Edelist's original agreement and his waiver of jury trial is valid.
In his complaint, Edelist alleges he is a MBNA credit cardholder. He does not attach to his complaint a copy of his credit card agreement nor say when he opened the account.1 He does not even state in his complaint that he lives in California. He has not filed any other pleading indicating a residence address.2
In its moving papers, MBNA attached an affidavit from Deborah Fisher, Senior Vice President of MBNA, giving Edelist's Los Angeles address. That affidavit does not specify when Edelist opened his credit card account. She attached copies of the original credit card agreement concerning Edelist's account. She avers that the copy of the agreement she attached to her affidavit is a "true and correct copy of the [one] governing his account."3
Edelist's reply to MBNA's motion argues, however, that there is no proof what Fisher provided is the actual agreement between the parties. As noted earlier, Edelist did not attach a copy of the agreement to his complaint. He has not supplied an affidavit denying the accuracy or completeness of the documents attached to Fisher's affidavit nor supplied in his response a copy of his agreement. He merely asserts there is no proof that what Fisher provided is a copy of his agreement with MBNA. The Court finds Fisher's affidavit sufficient to show the agreement. It rejects Edelist's bare assertions.4
Pertinent portions of the original agreement provided:
Despite the absence of a more specific date the original account was opened,7 the parties agree the arbitration provision at issue was in a subsequent document. Fisher states that on or about December 20, 1999, MBNA sent Edelist and other credit cardholders the arbitration provision.8 Edelist does not claim he never received it. Obviously, he contends, "[a] waiver of fundamental rights, such as a right to trial by jury, cannot be based on pure speculation as to what an agreement actually provided for."9 This statement does not even rise to the level of a bare assertion and is unacceptable to challenging the authenticity of what Fisher supplied. The 1999 amendments contained several items. The most extensive portions covered arbitration and provided:
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