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Mark v. Portfolio Recovery Associates, LLC

United States District Court, N.D. Illinois, Eastern Division

April 27, 2015

MAUREEN MARK, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC AND FREEDMAN, ANSELMO & LINDBERG, LLC, Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Plaintiff alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Before the Court is Defendant Portfolio Recovery Associate's (PRA's) motion to compel arbitration and stay the proceedings pending the completion of arbitration [39]. For the reasons stated below, the Court grants PRA's motion [39], compelling arbitration and staying the litigation in the interim. The parties are instructed to file a joint status report within 7 days after the arbitrator issues a final decision, after which the Court will set this case for a further status hearing. The Court also strikes Plaintiff's motion for class certification [32], as that motion is more properly addressed in arbitration.

I. Background[1]

Plaintiff opened a credit card account with U.S. Bank in 2011 and defaulted on her credit card debt. Defendant PRA purchased the debt and attempted to collect it, retaining Defendant Freedman to assist it in the collection process. Freedman sent Plaintiff an initial collection letter, stating that "[b]ecause of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater." [1 at 4]. Plaintiff alleges that Defendants were not authorized to add late charges or any other charges to her account. She alleges that the letter therefore made false or misleading representations in violation of 15 U.S.C. §§ 1692e, 1692e(5), 1692e(10) and that Defendants used unfair or unconscionable means to collect Plaintiff's debt in violation of 15 U.S.C. § 1692f.

PRA moves to compel arbitration pursuant to Plaintiff's Cardmember Agreement with U.S. Bank. The Cardmember Agreement states in relevant part:

45. Arbitration Provision:
(a) You agree that either you or we can choose to have binding arbitration resolve any claim, dispute or controversy between you and us that arises from or relates to this Agreement or the Account and credit issued thereunder (individually and collectively, a "Claim"). * * * If arbitration is chosen by any party, the following will apply:
(1) NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY, EXCEPT AS PROVIDED FOR IN THE APPLICABLE ARBITRATION RULES.
(2) Arbitration will only decide our or your Claim, and you may not consolidate or join the claims of other persons who may have similar claims. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS, OR AS A PRIVATE ATTORNEY GENERAL, PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. * * *
(c) This Arbitration Provision shall survive repayment of your extension of credit and termination of your Account. This Arbitration Provision shall be governed by federal law, including the Federal Arbitration Act[.]

[50 at 17-18]. The Cardmember Agreement also includes the following relevant language:

35. Assignment of Your Account to Another Creditor: We may assign, sell or transfer your Account and amounts owed by you to another creditor at any time.
If we do, this Agreement will still be in effect unless and until amended, and any references made in this Agreement to "we", "us", or "our" will refer to the creditor to which we assigned, sold, or ...

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