United States District Court, N.D. Illinois, Eastern Division
KARICE GOSS, individually and on behalf of all others similarly situated, Plaintiff,
GARY A. SMILEY, Defendant.
MEMORANDUM OPINION AND ORDER
Goss brings this putative class action under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., alleging that Gary Smiley sent
her a collection letter threatening to charge unlawful late
fees. Doc. 25. Smiley moves to compel arbitration under the
Federal Arbitration Act, 9 U.S.C. § 1 et seq.
Doc. 36. The motion is granted.
motion to compel arbitration, “the evidence of the
non-movant is to be believed and all justifiable inferences
are to be drawn in [her] favor.” Tinder v.
Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002)
(internal quotation marks omitted).
defaulted on a debt incurred on a AAA Checkmate consumer loan
account. Doc. 25 at ¶¶ 6, 11-12. Smiley, an
attorney, sent Goss a collection letter on AAA
Checkmate's behalf. Id. at ¶¶ 7-10,
13-17; Doc. 25-1 at 4. On this and other matters that AAA
Checkmate referred to Smiley, “AAA decide[d] whether
Smiley c[ould] file suit on any given claim, ”
“AAA ha[d] the final word regarding whether, and for
how much Smiley may settle any claims on its behalf, ”
and “AAA decide[d] whether to withdraw any given claim
from Smiley.” Doc. 37-1 at ¶ 11; see also
Doc. 37-8 at ¶¶ 2-6, 10.
letter to Goss stated, in relevant part: “Because of
interest, late charges, attorney fees, if any, and other
charges that may vary from day to day, the amount due on the
day you pay may be greater.” Doc. 25-1 at 4. In the
operative complaint, Goss alleges under the FDCPA that this
statement was false and misleading because late fees could
not accrue given the acceleration of Goss's debt under an
acceleration provision in the Consumer Loan Agreement
governing her relationship with AAA Checkmate. Doc. 25 at
¶¶ 17-26, 35-37; Doc. 37-2 at 2-3.
moving to compel arbitration, Smiley invokes the Consumer
Loan Agreement's arbitration provision, which states in
ARBITRATION AGREEMENT PROVISION INCLUDING WAIVER OF
JURY AND CLASS ACTION PARTICIPATION
Arbitration is a method of deciding disputes outside the
court system. This arbitration provision governs when and how
any claims or disputes you and we may have will be arbitrated
instead of litigated in court. … You and we agree to
arbitrate according to the following terms:
“Claim” means any dispute, claim or controversy
between you and us (including those raised as an initial
claim, counterclaim, cross claim, or third party claim) that
arises as a result of or has anything to at all to do with:
(1) your loan account, (2) this Agreement, (3) any prior loan
or agreement you may have had with us or (4) your
relationship with us including our attempts to collect your
obligation. This term includes (a) disputes about whether
this Arbitration Provision is valid or binding or about
whether or when it applies, (b) disputes relating to
constitutional provisions, statutes, ordinances, regulations,
court decisions, compliance with this Agreement, (c) disputes
relating to wrongful acts of every type (whether intentional,
fraudulent, reckless or just negligent) and (d) any claim or
request for injunctive or declaratory relief. The term
“claim” does not mean an action brought in small
claims court pursuant to Illinois Supreme Court Rules
IF ARBITRATION IS CHOSEN BY EITHER OF U.S. WITH RESPECT TO A
CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE
THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO
ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN
THE APPLICABLE ARBITRATION RULES OR BY THIS ARBITRATION
PROVISION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR'S
DECISION WILL BE FINAL AND BINDING[.] …
… This Arbitration Provision is made pursuant to a
transaction involving interstate commerce, and shall be
governed by the Federal Arbitration Act (“FAA”),
9 U.S.C. § 1 et seq.
Doc. 37-2 at 3. Smiley demanded arbitration, Doc. 37-6 at 2,
and Goss ...