United States District Court, E.D. New York
TARA WOLIN and ROBERT GREENWALD, individually and on behalf of all others similarly situated, Plaintiffs,
MIDLAND CREDIT MANAGEMENT, INC., and MIDLAND FUNDING, LLC, Defendants.
MUHLSTOCK LAW FIRM, PC BY: Todd D. Muhlstock, Esq. Attorney
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C.. BY:
Joseph A. Hess, Esq. Attorney for Defendants.
MEMORANDUM & ORDER
WEXLER, DISTRICT JUDGE.
Tara Wolin ("Wolin") and Robert Greenwald
("Greenwald") (collectively "plaintiffs")
commenced this action against defendants Midland Credit
Management, Inc. ("MCM") and Midland Funding LLC
("Midland Funding") (collectively,
"defendants") alleging violations of the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C.
§ 1692 et seq. Presently before the Court is
defendants' motion to compel arbitration pursuant to the
Federal Arbitration Act ("FAA"), 9 U.S.C. § 1
et seq., and agreements between the parties.
See Motion, Docket Entry ("DE") .
Plaintiffs have opposed the motion. For the reasons set forth
herein, the motion to compel arbitration is granted in part
and denied in part.
and Greenwald are apparently unrelated individuals who each
allegedly incurred a separate debt. Wolin's account was
with Synchrony Bank/PC Richard and Greenwald's debt
originated with Synchrony Bank/JCPenney. Both accounts were
sold to defendant Midland Funding and the collection letters
were sent by defendant MCM, a debt collection company
purportedly collecting on and servicing the accounts on
behalf of Midland Funding. The particulars of the accounts
prior to their purchase by defendants are germane to the
current motion and are provided in affidavits and supporting
documents from (1) Jodi Anderson, a Lead Litigation Analyst
with non-party Synchrony Bank ("Synchrony"),
formerly known as GE Capital Retail Bank, regarding the
origination of the accounts, and (2) Michael Burger, Director
of Legal Collections Operations at defendant MCM regarding
the acquisition of the accounts by defendants.
about February 28, 2003, a PC Richard account was applied for
in the name of Tara Wolin and was approved that same day by
Synchrony Bank ("Synchrony"). Affidavit of Jodi
Anderson re: Wolin account ("Anderson Aff: Wolin"),
¶5, DE . The application has not been provided.
Anderson avers that a PC Richard credit card was mailed to
Wolin on or about February 28, 2003.
to Synchrony's records, Wolin made her last payment on
the account on November 20, 2014. The account was charged off
by Synchrony on June 28, 2015, and subsequently sold to
Midland Funding in July 2015.
has provided a copy of the Credit Card Account Agreement that
was purportedly in effect at the time of the charge off in
June 2015. Anderson Aff.: Wolin, Ex. A. That agreement
includes an arbitration provision that will apply if the
recipient "does not reject it." The arbitration
provision also contains language whereby the debtor agrees to
not participate in a class action or bring suit on behalf of
other account holders. The agreement does not show any
indication on its face that it was sent to Wolin, and
Anderson does not expressly claim that the agreement was sent
to her. Although Synchrony claims that a "change of
terms" was sent to Wolin in February 2015, the
supporting document attached only contains a reference to a
change in the late fee, does not contain an arbitration
provision, and does not indicate that a complete agreement
was provided to Wolin. Synchrony states that there is no
record of Wolin rejecting the arbitration provision.
Wolin account was assigned to defendant Midland Funding when
it purchased her charged-off debt as part of a portfolio of
such debts from Synchrony in July 2015. See
Affidavit of Michael Burger re: Wolin account ("Burger
Aff: Wolin"), ¶¶ 3, 6, DE . Defendants
provide documents evidencing the purchase. Id.
acquired Greenwald's JC Penney credit card account as
part of a portfolio in December 1999. That same month,
Synchrony sent a notice to Greenwald enclosing the credit
card agreement effective at that time. Affidavit of Jodi
Anderson re: Greenwald account ("Anderson Aff:
Greenwald"), ¶6, DE . Change in term notices
were sent to Greenwald in April 2008, July 2009, and June
2012. The agreement sent in December 1999 and the subsequent
notices sent in 2008 and 2012 each contained arbitration
provisions. The most recent agreement sent to Greenwald in
June 2012 contains an arbitration provision stating that
absent rejection, certain claims are subject to arbitration
and the debtor agrees not to participate in class actions or
bring claims on behalf of others." Anderson Aff:
Greenwald, Ex. B. Synchrony states that there is no record of
Greenwald rejecting the arbitration provision.
made his last payment on July 29, 2014. The account was
charged off by Synchrony on March 11, 2015, and subsequently
sold to Midland Funding LLC that same month. The Greenwald
account, which had an outstanding balance of $7, 081.73 at
charge-off, was part of a portfolio of charge-off debts
purchased from Synchrony by defendant Midland Funding.
See Affidavit of Michael ...