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Untershine v. Advanced Call Center Technologies LLC

United States District Court, E.D. Wisconsin

June 18, 2018

WENDY UNTERSHINE, on behalf of herself and all others similarly situated, Plaintiff,
v.
ADVANCED CALL CENTER TECHNOLOGIES, LLC, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS OR STAY AND COMPEL ARBITRATION, OR ALTERNATIVELY TO STRIKE THE CLASS ACTION ALLEGATIONS FROM THE COMPLAINT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Wendy Untershine filed a class action complaint against Advanced Call Center Technologies, LLC (“ACCT”), alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Wisconsin Consumer Act (“WCA”) based on actions taken by ACCT in the course of collecting a debt allegedly owed to Synchrony Bank for purchases and other charged incurred as a result of the use of her Walmart branded credit card. (Docket # 1.) ACCT has filed a motion to compel Untershine to arbitrate the dispute pursuant to a provision in the Cardholder Agreement between Untershine and Synchrony Bank. (Docket # 11.) Alternatively, ACCT moves to strike the class action allegations from the complaint. For the reasons that follow, the defendant's motion to dismiss or to stay and compel arbitration, or alternatively to strike the class action allegations from the complaint, is denied.

         BACKGROUND

         On or around December 12, 2015, Synchrony issued a Walmart branded credit card account in the name of Wendy M. Untershine bearing an account ending in 4316. (Declaration of Joline White (“White Decl.”) ¶ 4, Docket # 13.) A credit card bearing the account No. and a copy of the credit card agreement that governed the account were mailed to Untershine at the address of record for the account. (Id.) Subsequent changes were made to the agreement and were included with the account's billing statements. (Id.) Purchases were posted to the account from December 12, 2015 through January 27, 2017, with the last payment posting on June 3, 2017. (Id. ¶ 6.) ACCT collects debts on behalf of Synchrony and Synchrony assigns credit card accounts to ACCT for collection. (Declaration of Marc Keller (“Keller Decl.”) ¶¶ 2-3, Docket # 14.) Synchrony assigned Untershine's Walmart branded credit card account to ACCT for collection purposes on or about November 1, 2017 due to non-payment. (Keller Decl. ¶ 7, White Decl. ¶ 6.)

         Untershine alleges in her complaint that she incurred a consumer debt to Synchrony Bank for purchases and other charges incurred as a result of the use of her Walmart branded credit card. (Compl. ¶¶ 4-5, 11.) Untershine alleges that on or about August 17, 2017, she received a credit card account statement from Synchrony that stated her “new balance” was $1, 833.19, with a “payment due date” of September 9, 2017, an “amount past due” of $131.00 and a “total minimum payment due” of $224.00. (Id. ¶¶ 12-13.) On or about August 20, 2017, Synchrony mailed Untershine a debt collection letter stating that the “amount now due” was $131.00 and that she could return her account to a current status by paying the “amount now due” by September 4, 2017. (Id. ¶¶ 15-17.)

         On or about October 17, 2017, Synchrony mailed Untershine a statement with a “new balance” of $1, 985.08, an “amount past due” of $317.00, a “total minimum payment due” of $416.00, ” and a “payment due date” of November 9, 2017. (Id. ¶ 22.) On or about November 1, 2017, ACCT mailed Untershine a debt collection letter regarding Untershine's alleged Walmart credit card. (Id. ¶ 23.) ACCT is engaged in the business of collecting debts originally owed to others. (Id. ¶ 8.) The letter states that, as of November 1, 2017, the alleged debt had a “total account balance” of $1, 985.08 and an “amount now due” of $416.00. (Id. ¶ 30.)

         Untershine alleges that ACCT's letter is false, deceptive, misleading, and confusing to the unsophisticated consumer as the unsophisticated consumer had previously received letters from the creditor that indicated the “amount now due” was the same as the “amount past due.” (Id. ¶¶ 31-32.) Untershine further alleges that the “amount now due” in ACCT's letter is the “total minimum payment due” found in a previous letter. (Id. ¶ 33.) Untershine alleges that she was confused by ACCT's letter and ACCT's letter violated the FDCPA and the WCA. (Id. ¶¶ 40, 64-79.)

         The credit card agreement contains a class action waiver and arbitration provision that states as follows, in pertinent part:

RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND U.S. WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.
• What claims are subject to arbitration
1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Wal-mart Stores, Inc. if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state's equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
• No. Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST U.S. IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST U.S. ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.
***
• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator's decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator's award.
• How to reject this section
You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, ...

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