United States District Court, W.D. Kentucky, Louisville Division
OPINION AND ORDER
N. STIVERS, JUDGE
matter is before the Court on Defendant's Motion to
Dismiss and Compel Arbitration (DN 22). Plaintiff has not
responded to the motion, and the motion is ripe for
adjudication. For the reasons outlined below, the motion is
SUMMARY OF FACTS AND CLAIMS
December 2011, Plaintiff Kimberly Evans (“Evans”)
opened a credit card account with Credit One Bank, N.A.
(“Credit One”) with an account number ending in
2964. (Compl. ¶ 6, DN 1; Collins Aff. Ex. 3, at 1, DN
22-1). Evans allegedly used the credit card
“exclusively for personal, family, and household
purposes . . . .” (Compl. ¶ 7).
Credit One's regular practice to hold and service its
accounts but to immediately sell the receivable portion of
accounts (i.e., the payments from accountholders) to a
wholly-owned entity called MHC Receivables, LLC
(“MHC”). (Scott Aff. ¶¶ 2-3, DN 22-2).
After Evans opened her account, MHC immediately sold the
receivable portion of her account to another wholly-owned
entity called FNBM, LLC (“FNBM”). (Scott Aff.
April 22, 2014, Credit One charged-off Evans' account
after she defaulted. (Collins Aff. ¶ 15, DN 22-1;
Collins Aff. Ex. 3, at 1). At the time of the charge-off, the
account was subject to the “Credit One Visa/MasterCard
Cardholder Agreement, Disclosure Statement, and Arbitration
Agreement” (“Agreement”). (Collins Aff.
¶ 10; Collins Aff. Ex. 4, DN 22-1 [hereinafter
April 30, 2014, Credit One sold Evans' account to MHC,
but FNBM still retained the receivable portion of the
account. (Scott Aff. ¶ 5, DN 22-2). On May 14, 2014, MHC
and FNBM sold their interests in Evans' account to
Sherman Originator III LLC (“Sherman”), resulting
in Sherman owning all rights to the account. (Scott Aff.
¶ 5; Collins Aff. ¶ 3). On May 21, 2014, Sherman
sold a broad portfolio of accounts to Defendant Midland
Funding, LLC (“Midland”), which included all
rights to Evans' account. (Collins Aff. ¶¶ 3,
6, 9; Collins Aff. Ex. 3, at 1; Mazzoli Aff. ¶¶ 4,
6, DN 22-3).
March 20, 2015, Midland filed a collection action against
Evans in Spencer District Court seeking to recover funds due
relating to her Credit One account. (Compl. ¶ 6).
Subsequently, on June 8, 2015, Midland obtained a default
judgment against Evans, and on July 1, 2015, Midland filed a
judgment lien against her. (Compl. ¶¶ 8-9, 11-12;
Compl. Exs. A-B, DN 1-2 to 1-3). Through its counsel, Midland
also attempted both wage and non-wage garnishments to collect
on the judgment. (Compl. ¶¶ 14-21; Compl. Exs. C-F,
DN 1-4 to 1-7).
29, 2016, Evans filed this action alleging violations of the
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692-1692o, state law, and a state court
rule. (Compl. ¶ 1). In particular, Evans has alleged
that counsel for Midland violated the FDCPA because the
judgment lien and the garnishments included court costs to
which Midland was not entitled. (Compl. ¶¶ 12,
16-23). Evans also has asserted that the judgment lien
recording fee and costs associated with filing the
garnishments were not awarded in the judgment, and
Midlands' efforts to collect such fees and costs violated
the FDCPA. (Compl. ¶¶ 24-35). Finally, Evans has
asserted various class claims against Midland. (Compl.
¶¶ 36-52). After filing its answer, Midland moved
to compel arbitration and stay or dismiss this case.
(Def.'s Mot. Dismiss & Compel Arbitration, DN 22).
Court has subject-matter jurisdiction over Evans' FDCPA
claim based upon federal question jurisdiction. See
28 U.S.C. § 1331. In addition, the Court has
supplemental jurisdiction over her state-law claims.
See 28 U.S.C. § 1367(a).
STANDARD OF REVIEW
ruling on a motion to compel arbitration, courts apply the
summary judgment standard in Fed.R.Civ.P. 56(c). See
Arnold v. Rent-a-Center, Inc., No. 11-18-JBC, 2011 WL
1810145, at *2 (E.D. Ky. May 12, 2011) (“This court
will treat the motion to compel arbitration as one for
summary judgment . . . .”); Weddle Enters., Inc. v.
Treviicos-Soletanche, J.V., No. 1:14CV-00061-JHM, 2014
WL 5242904, at *2 (W.D. Ky. Oct. 15, 2014) (“A motion
to dismiss based on the existence of a valid arbitration
agreement is not evaluated under the usual Fed.R.Civ.P.
12(b)(6) standard. Instead, courts apply the standard
applicable to motions for summary judgment.” (citations
omitted)). “In order to show that the validity of the
agreement is in issue, the party opposing arbitration must
show a genuine issue of ...