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Debra Ann Bailey et al v. Household Finance Corporation of California

October 28, 2011

DEBRA ANN BAILEY ET AL.,
PLAINTIFF,
v.
HOUSEHOLD FINANCE CORPORATION OF CALIFORNIA, HSBC FINANCE CORPORATION, HSBC CARD SERVICES INC., HSBC BANK NEVADA, N.A., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion to Compel Arbitration and Stay Action filed by Defendant Household Finance Corporation of California (ECF No. 80).

I. Background

On April 23, 2010, Defendant Household Finance Corporation of California ("Household Finance") removed this class action complaint from the Superior Court of California for the County of San Diego. (ECF No. 1). On June 7, 2010, Plaintiff Debra Ann Bailey ("Plaintiff") filed a First Amended Complaint. (ECF No. 14). Plaintiff alleges that in 2007 she received a loan from Household Finance. Plaintiff alleges that she made payments on the loan until July 2009. Plaintiff alleges that she also received a credit card from HSBC Finance Corp, HSBC Card Services, Inc., and HSBC Nevada, N.A. Plaintiff alleges that she made payments on the credit card until July 2009. Plaintiff alleges that "beginning in July 2009, Defendants persisted in a course of action in making hundreds of telephone calls to Plaintiff, mainly on her cellular telephone but also to her land line home phone, in an attempt to coerce her to make payments on her loans." (ECF No. 14at 7 ¶ 27). Plaintiff has asserted the following claims against all Defendants: (1) violation of the California Rosenthal Fair Debt Collection Practices Act; (2) violation of California's Invasion of Privacy Act; (3) violation of the federal Telephone Consumer Protection Act; and (4) violation of California Business and Professions Code section 17200 et seq.*fn1

On September 14, 2011, Defendant Household Finance filed a Motion to Compel Arbitration and Stay Action. On October 3, 2011, Plaintiff filed an Opposition. On October 7, 2011, Defendant Household Finance filed a Reply.

II. Discussion

Defendant Household Finance "moves to compel arbitration of all claims brought against it by Plaintiff [Bailey]."*fn2 (ECF No. 80-1 at 7). Defendant contends that the loan agreement that Plaintiff entered into with Household Finance contained an "Arbitration Rider" which provides that any claim must be resolved in arbitration and contains a waiver of a class action. Defendant contends that prior to the Supreme Court's recent decision in AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S.Ct. 1740 (2011) ("Concepcion"), the class action waiver "would have been unenforceable in the Circuit." (ECF No. 80-1 at 7). Defendant Household Finance contends that given the change in law, it has not waived its right to arbitration.

Defendant has submitted the "Loan Repayment and Security Agreement" ("Agreement") which contains an "Arbitration Rider" that states:

This Arbitration Rider is signed as part of Your Agreement with Lender and is made a part of that Agreement. By signing this Arbitration Rider, you agree that either Lender or you may request that any claim, dispute, or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present, or future), including initial claims, counter-claims, cross-claims, and third party claims, arising from or relating to this Agreement or the relationships which result from this Agreement, including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement ('Claim'), shall be resolved, upon the election of you or us by binding arbitration pursuant to this arbitration provision .... (ECF No. 80-2 at 12). The "Arbitration Rider" contains a "Class Action Waiver Provision" that states:

No class actions or private attorney general actions in court or in arbitration or joinder or consolidation of claims in court or with other persons are permitted in arbitration without the written consent of the parties. The validity and effect of the preceding sentence (herein referred to as the 'Class Action Waiver Provision') shall be determined exclusively by a court and not by an arbitrator. Neither the administrator nor any arbitrator shall have the power or authority to waive, modify or fail to enforce the Class Action Waiver Provision, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable.

Id. at 13.

Plaintiff contends that Defendant Household Finance has waived its right to arbitrate on the grounds that it has actively litigated this case over the past eighteen months. Plaintiff contends that putative class members would be prejudiced by arbitration on the grounds that they would not have adequate time to file other actions due to approaching statute of limitations. Plaintiff contends that the Court should require that notice be given to the "class members" if the Court grants the Motion to Compel Arbitration. (ECF No. 86 at 7).

A. Federal Arbitration Act

The Federal Arbitration Act ("FAA") "was enacted ... in response to widespread judicial hostility to arbitration agreements." Concepcion, 131 S. Ct. at 1745 (citation omitted). Section 2 of the FAA states: "A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. ยง 2. The Supreme Court has described Section 2 "as reflecting both a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract." Concepcion, 131 S. Ct. at 1745 (quotations omitted). "In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their ...


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