Bazemore v. Jefferson Capital Sys., LLC

Bazemore v. Jefferson Capital Sys., LLC

Opinion

 [*1327]  KAPLAN, District Judge:

In 2005, plaintiff Christina L. Bazemore applied on the Internet for a credit card issued by First Bank of Delaware ("FBD"). She charged several items on the card but failed to pay in full. In 2008, Jefferson Capital System, LLC ("JSC") acquired all right, title and interest to Ms. Bazemore's account. Eventually, [**2]  Ms. Bazemore sued JSC for an alleged violation of the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692 et seq. JSC moved to compel arbitration in reliance on an arbitration clause said to have been contained in a cardholder agreement between Ms. Bazemore and its predecessor-in-interest. The district court concluded that Ms. Bazemore's claim was outside the scope of the arbitration clause and therefore denied JSC's motion. We affirm, albeit on a different ground. We hold that JSC failed to establish the existence of any agreement between Ms. Bazemore and FBD beyond the agreement to pay whatever charges Ms. Bazemore incurred by using the credit card.

I. FACTS

On November 18, 2005, Ms. Bazemore applied for an Imagine MasterCard issued by FBD. It is undisputed that she did so over the Internet. But whether she agreed to any terms and conditions in the course of doing so is unknown. The only evidence is a declaration of Gregory Ryan, an individual employed at the time Ms. Bazemore applied for her credit card by Atlanticus Services Corporation ("Atlanticus"), which maintained records for such credit cards on behalf of FBD. And while he stated in conclusory terms that Ms. Bazemore "accepted the terms [**3]  governing her account and opened the account" on or about November 18, 2005, he did not assert that he has any personal knowledge on that score or produce any documents to support that assertion. And those failures are quite important.

Today, virtually every Internet user is familiar with what have become known as clickwrap agreements — "agreements [formed by] requiring a computer user to 'consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with [a] . . . transaction.'" Hancock v. AT&T Co., 701 F.3d 1248, 1255 (10th Cir. 2012) (quoting Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007)). But there is no evidence of such an electronic exchange between Ms. Bazemore and either FBD or Atlanticus. In other words, there is no evidence that the Internet web page or pages that Ms. Bazemore viewed, or upon which she applied for her Imagine MasterCard, displayed or referred to any terms [*1328]  or conditions of the credit card she sought, much less that she was required to consent to any such terms in order to obtain her credit card.

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