Kortum-Managhan v. Herbergers Nbgl

Facts

P opened an account with D. The application did not include the terms and conditions of the agreement. P alleged that she never signed any agreement that included the terms and conditions for the use of her D credit account. P received by mail her D credit card, and a Revolving Credit Card Agreement pertaining to that card. This agreement did not include an arbitration clause. It contained a provision purporting to allow D to unilaterally change the agreement as it saw fit and specifying that a cardholder's continued use of the credit card or other services constituted agreement to D's unilateral change in terms. P filed a complaint against D alleging multiple violations of the Federal Fair Debt Collection Practices Act. P alleged that D reported to the various credit bureaus that she had several accounts with D and its affiliates when, in reality, she had only one account. D moved to dismiss P's Complaint and compel arbitration of the claims.   D alleged that it mailed out a notice of change in terms to P in October 1999 along with her monthly statement.   This “bill stuffer” contained various changes in the terms of the agreement including an arbitration clause. D argued that P agreed to binding arbitration through her continued use of her account after being notified of the addition of the arbitration provision to her agreement. P argued that she did not agree to arbitrate all disputes with D and that she did not knowingly and intelligently waive her fundamental constitutional rights to trial by jury and to access to the courts. P also claimed that she did not receive the change in terms or she did not notice the change in terms “because D was continually stuffing [her] monthly billing statement with copious piles of junk mail” that she routinely throws away without reading. D won the motion to compel arbitration, and the court dismissed the action. P appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

© 2007-2024 ABN Study Partner.