Thursday, January 16, 2014

Credit Card Holder Not Bound by Unreceived Arbitration Clause

The case of Bank of America, N.A. vs. Michelle L. Evans, 32 Fla. L. Weekly D539 (3rd DCA, 2007) dealt with the enforceability of an arbitration clause in a credit card agreement. The lower court resolved the question of fact of whether the card holder received the arbitration agreement by find that she did not--in other words her denial of the receipt of the arbitration clause overcame the rebuttable presumption of receipt which arose from the corporate testimony as to its regular practice. The Third District Court of Appeals would not interfere with the trial court's findings of fact.

The Court further rejected the bank's fall-back argument that the card holder's use of the card obligated her to the arbitration clause in any event. The Court reasoned that it makes not sense and there is no authority that one may be bound by an "agreement" of which one is unaware simply by using a credit card.

As to the enforceability of arbitration clauses in bankruptcy, one may refer to a new article "The Enforceability of Arbitration Clauses in Bankruptcy", Alan N. Resnick, American Bankruptcy Institute Law Review, Volume 15, Number 1, Spring 2007.