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Washington Mutual Bank v. Forgue

November 27, 2007

WASHINGTON MUTUAL BANK, PETITIONER,
v.
GRETCHEN K. FORGUE, RESPONDENT.



The opinion of the court was delivered by: Siragusa, J.

DECISION AND ORDER

INTRODUCTION

This matter is before the Court on Respondent Washington Mutual Bank's petition to confirm an arbitration award pursuant to 9 U.S.C. § 9 (1947), Petitioner Gretchen Forgue's motion to strike, and for sanctions against Petitioner pursuant to Federal Rule of Civil Procedure 11. For the reasons stated below, the arbitration award is confirmed and Ms. Forgue is directed to pay reasonable attorney fees to Respondent's counsel as a sanction for violation of Rule 11.

BACKGROUND

In April 2003, Ms. Forgue opened a credit card account with Washington Mutual's predecessor-in-interest, Providian National Bank. As part of that process, Ms. Forgue received a Term Sheet and Customer Account Agreement disclosing the annual percentage rate for her account, and thereafter received monthly statements showing transfers of funds, purchases and finance charges. In December 2004, Ms. Forgue began to complain to Washington Mutual in writing in what she captioned "Notice of Billing Error." She wrote, in part, as follows:

My belief that the statement contains billing errors under 15 U.S.C. 1666(b)(1), (2), and (5) is based upon my belief that you failed to give all the proper disclosures required by law to me prior to opening this account, and additional disclosures since then. Because you failed to provide these disclosures, the account could not legally be opened and I should not be responsible for the payment of interest, fees or other finance charges. While I understand I will likely still be responsible for the repayment of purchases and cash advances, I do not believe I should be responsible for interest, finance charges and other fees..

Because I believe I should not have been charged finance charges or fees for the history of this account, I dispute the accuracy of the following items on my statements which have been calculated based on the inclusion of those charges: the current balance, the amounts and payments due and all finance charges and other fees charged since the account was opened. (Responent's First Notice of Billing Error (Dec. 30, 2004), quoted in Petition (Docket No. 1), Ex. B at 4-5.) Ms. Forgue sent six such notices to Washington Mutual. (Arbitration Trans. attached to Petition, Ex. B at 109.) The matter was eventually submitted to arbitration.

On November 20, 2006, Richard D. Rosenbloom, Arbitrator,*fn1 issued an award in the matter of Gretchen K. Forgue, claimant, and Washington Mutual Bank, respondent, directing, in pertinent part, as follows:

8. 15 U.S.C. Section 1666(a) requires a billing error notice to have been received by a creditor within 60 days of the first periodic statement documenting the objectionable interest or finance charge. 15 U.S.C. Section 1640(a) requires that a proceeding must be commenced within one year. See, Dawkins v. Sear Roebuck and Company, 109 F.3d 341 (5th circuit, 1997).

9. Claimant's first "Notice of billing error" was sent some 19 months after the interest or finance charge alleged to be objectionable first appeared in May 2003. This proceeding was commenced 33 months thereafter.

10. Claimant has failed to sustain her burden of proving that Respondent has violated the provisions of the Fair Credit Billing Act or the Truth in Lending Act, as alleged in the Claim.

11. Claimant's request for an award against Respondent is denied.

12. Claimant's request for an sward of costs and attorneys' fees against Respondent is denied.

13. Respondent's request for an award of costs and attorneys' fees against ...


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