Bruesewitz v. Wolpoff & Abramson, LLP

[David A. Szwak]

Bruesewitz v. Wolpoff & Abramson, LLP
Not Reported in F.Supp.2d, 2005 WL 3002609
W.D.Wis.,2005.
November 08, 2005

MEMORANDUM AND ORDER


SHABAZ, J.
*1 Plaintiff Terry Bruesewitz commenced this action against his lender, MBNA American Bank, N.A. and its collection attorneys, Wolpoff & Abramson, L.L.P., in the Circuit Court for Jefferson County Wisconsin alleging violations of the Fair Debt Collection Practices Act (FDCPA) and the Wisconsin Consumer Act, and seeks to enjoin a pending arbitration proceeding between the parties. Defendants removed the matter to this Court pursuant to 28 U.S.C. §§ 1441(b) and 1331 based on the FDCPA claim, which is presently before the Court on defendants' motion to compel arbitration. The following facts are undisputed for purposes of the pending motion.


FACTS

In August 1996 plaintiff and defendant MBNA entered into a consumer credit agreement governed by an Account Agreement which prescribed the terms of the credit relationship.
The 1996 agreement included the following:
Amendments: We may amend this Agreement by complying with the applicable notification requirements of federal law and the laws of the State of Delaware, as amended. Under current law, if we amend the Agreement to either increase the FINANCE CHARGE on any balance or increase any other charge which is considered interest under Delaware law, we may require you to pay the higher ANNUAL PERCENTAGE RATE or other higher interest charges unless: 1) you write to us at the address stated on the notice and reject the amendment, and 2) your account is not used after a date specified in our notice. The amended Agreement (including the higher rate or other higher charges) will apply to the entire unpaid balance, including the balance existing before the amendment became effective.
On or about December 20, 1999 MBNA mailed plaintiff a written notification that it was amending the 1996 agreement in accordance with the above provision. The notice was mailed to N5357 Highway 89, Lake Mills, WI 53511. The notice provided in part:
This Amendment changes the terms of your Credit Card Agreement. Please read this document carefully and keep it with your Credit Card Agreement. Except for this Amendment, the terms of your Credit Card Agreement continue in full force and effect.
As provided in your Credit Card Agreement and under Delaware law, we are amending the Credit Card Agreement to include an Arbitration Section. Please read it carefully because it will affect your right to go to court, including any right you may have to have a jury trial. Instead, you (and we) will have to arbitrate claims. You may choose not to be subject to this Arbitration Section by following the instructions at the end of this notice; you may continue to use your account under the existing terms even if you reject this section. This Arbitration Section will become effective on February 1, 2000. The Arbitration Section reads:
Arbitration: Any claim or dispute (“Claimâ€