Macasero v. Ent Credit Union

Decision Date04 May 2023
Docket Number21CA1421
PartiesCecilia Macasero, Plaintiff-Appellee, v. ENT Credit Union, Defendant-Appellant.
CourtColorado Court of Appeals


2023 COA 40

Cecilia Macasero, Plaintiff-Appellee,
ENT Credit Union, Defendant-Appellant.

No. 21CA1421

Court of Appeals of Colorado, First Division

May 4, 2023

A division of the court of appeals considers whether plaintiff was placed on constructive notice of updated terms and conditions of her membership agreement with defendant credit union, including an arbitration agreement with an opt-out provision, by language, including hyperlinks, in her monthly banking statement email. The division concludes that plaintiff was placed on constructive notice of the change in terms because she received the notice in the manner she had agreed upon, and the notice was sufficiently clear and conspicuous considering the parties' prior course of dealing, the email was designed in such a way that the notice was reasonably conspicuous, and the change in terms was easily accessible.


Because the district court incorrectly determined that the plaintiff did not have constructive notice, the division reverses the district court's order and remands to the district court for further proceedings.

City and County of Denver District Court No. 20CV32226 Honorable Marie Avery Moses, Judge

Franklin D. Azar & Associates, P.C., Franklin D. Azar, Paul R. Wood, Michael D. Murphy, Brian J. Hanlin, Margeaux R. Azar, Aurora, Colorado; Frank Sims & Stolper LLP, Scott H. Sims, Irvine, California, for Plaintiff-Appellee

Campbell Wagner Frazier &Dvorchak, LLC, Michael O. Frazier, Greenwood Village, Colorado; Katten Muchin Rosenman LLP, Stuart M. Richter, Los Angeles, California, for Defendant-Appellant




¶ 1 The primary issue in this appeal is whether the plaintiff, Cecilia Macasero, had constructive notice that the defendant, Ent Credit Union (Ent), had updated the terms of its membership agreement to include an arbitration agreement, and that she had the right to opt out of the arbitration agreement within a certain time period. We conclude that she had constructive notice of the updated terms. So we reverse the district court's order denying Ent's motion to dismiss and compel arbitration.

I. Factual Background

¶ 2 In 2014, Macasero purchased a car and entered into a finance agreement with an automobile dealer. The dealer assigned the agreement to Ent, which became Macasero's creditor. To complete the assignment, Macasero became an Ent member by opening a savings account and signing an "Account Application & Signature Card," which included the following "Authorization":

By signing this Application and Signature Card, I/We agree to the terms and conditions of and receipt of Important Account Information For Our Members disclosure which includes: Membership and Account Agreement .... I/We agree to receipt and acceptance of all rate and fee schedules and if applicable, to any amendment of the respective disclosures rate and fee schedules, that Ent
makes from time to time which are incorporated therein.... I/We further agree to the acceptance of statements, notices, and disclosures by means of electronic delivery, and notice to any one (1) account owner or applicant is considered notice to all owners of the account.

¶ 3 By signing the Authorization, Macasero also agreed to the following "Notice of Amendments" provision in the "Membership and Account Agreement" (the membership agreement):

Except as otherwise prohibited by applicable law, the terms of this Agreement are subject to change at any time at the discretion of Ent. We will notify you of any changes in terms, rates or fees as required by law. By utilizing your account and related services described herein, you agree to amendments to the terms of this Agreement which have been made available to you by mail, electronically on our website or in person. We reserve the right to waive any term in this Agreement. Any such waiver shall not affect our right to enforce any right in the future.

¶ 4 Macasero then received email notices from Ent, including monthly electronic banking statements, many of which she opened.

¶ 5 In 2019, Ent updated the membership agreement's terms to add an arbitration agreement titled "Arbitration and Waiver of Class


Action."[1] Ent notified members by mail or email, depending on how they had agreed to receive important notices, but both groups were sent a notice with their monthly bank statement. Members who had consented to electronically delivered notices, as Macasero had, received the following email that notified them their monthly bank statement was available, contained information about an Ent promotion, and alerted them to "Membership and Account Agreement" updates:


(Image Omitted)


¶ 6 According to Ent's records, Macasero received this email, but she did not open it.

¶ 7 If a member did open the email, they could have clicked[2] on the blue "" hyperlink[3] contained in the email that directed them to an Ent webpage titled "Important Disclosures," with a subheading titled "Important Account Information." In the first section, titled "Important Account Information for Our Members," the text says that a reader can see recent changes to the membership agreement by following a bold, blue, underlined hyperlink. Clicking this hyperlink brought up a page titled "Changes in Terms" summarizing the updates, including information on how to find them and how to opt out of them.

¶ 8 Specifically, the new arbitration agreement provision states:

You and the credit union agree that we shall attempt to informally settle any and all disputes arising out of, affecting, or relating to your accounts, or the products or services the credit union has provided, will provide or has offered to provide to you, and/or any aspect of your relationship with the credit union (hereafter referred to as the "Claims"). If that cannot be done, then you agree that any and all Claims that are threatened, made, filed or initiated after the Effective Date (defined below) of this Arbitration and Waiver of Class Action provision ("Arbitration Agreement"), even if the Claims arise out of, affect or relate to conduct that occurred prior to the Effective Date, shall, at the election of either you or us, be resolved by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its applicable rules and procedures for consumer disputes ("Rules"), whether such Claims are in contract, tort, statute, or otherwise.

¶ 9 The arbitration agreement also contains an opt-out provision:

You have the right to opt-out of this Arbitration Agreement and it will not affect any other terms and conditions of your Account Agreement or your relationship with Ent. To opt out, you must notify Ent in writing of your intent to do so within 30 days after the Arbitration Agreement was provided to you. Your opt-out will not be effective and you will be deemed to have consented and agreed to the Arbitration Agreement unless your notice of intent to opt out is received by the credit union in writing . . . within such 30-day time period. Your notice of intent to opt out can be a letter that is signed by you, or an email sent
by you . . . that states "I elect to opt out of the Arbitration Agreement" or any words to that effect.

¶ 10 The arbitration provision also provides members the email or physical address where they could send the required written optout request.

¶ 11 Macasero did not exercise her right to opt out of the arbitration agreement and continued to use her account after she received Ent's email containing the update notice.

II. Procedural History

¶ 12 When Macasero purchased her car, she also purchased a Guaranteed Automobile Protection (GAP) waiver. The GAP waiver agreement provides that, if the purchaser's automobile insurance payout on a "total loss" claim does not cover the remaining loan balance, the creditor would waive the difference. Macasero elected to pay for the GAP waiver in monthly installments, and the cost was added to the principal balance of her finance agreement. Macasero paid off her finance agreement in 2018.

¶ 13 In 2020, Macasero filed a class action complaint and jury demand in district court alleging breach of contract on behalf of herself and the members of a class who entered into finance


agreements with GAP waivers, paid off their agreements ahead of schedule, and were not refunded the unearned GAP waiver fees.

¶ 14 In 2021, Ent filed the motion to dismiss and compel arbitration. The district court denied Ent's motion. While it agreed that Ent had the right to unilaterally modify the membership agreement's terms, it concluded that Macasero did not have actual or constructive notice of the arbitration agreement. Ent appeals.

III. Macasero Had Constructive Notice of the Arbitration Agreement

¶ 15 Ent contends that the district court erred in determining that its email did not place Macasero on constructive notice of the arbitration agreement and her right to opt out because its notice was sufficiently clear and conspicuous. We agree.

A. Standard of Review

¶ 16 Macasero argues that this is not, in fact, an appeal of a denial of a motion to compel arbitration, but rather a question of whether a contract exists. We disagree. It is undisputed that the parties entered into a contract. We address whether their contract requires arbitration because Ent sufficiently placed Macasero on constructive notice of the arbitration agreement. And that presents


a legal question that we review de novo. Moffett v. Life Care Ctrs. of Am., 219 P.3d 1068, 1072 (Colo. 2009).

B. Legal Principles

¶ 17 Colorado and federal law recognize a strong public policy interest in favor of enforcing arbitration agreements. See Colo. Const. art. XVIII, § 3; §§ 13-22-201 to -239, C.R.S. 2022; 9 U.S.C. § 3; see also J.A. Walker Co. v. Cambria Corp., 159...

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