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Elder v. BMO Harris Bank

United States District Court, D. Maryland

April 11, 2014

JACINTA ELDER
v.
BMO HARRIS BANK, ET AL

MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Jacinta Elder has brought this action against BMO Harris Bank, N.A., First Premier Bank, Missouri Bank and Trust, and Four Oaks Banks & Trust. She asserts claims on behalf of herself and the putative class of persons who were residents in states (and the District of Columbia) in which so called "payday loans" are illegal and who borrowed money from payday lenders. The payday lenders themselves are not named as defendants. Each of the defendants has filed a motion to compel arbitration. Defendants' motions will be granted.[1]

I.

A.

Plaintiff made payday loans from four different payday lenders: National Payday, MD Financial LLC d/b/a Access Holdings Group, SEASIDE PAYDAY, Riverbend Cash, and Cash Yes. All but one of the loan agreements contained an arbitration provision.[2] Defendants were not signatories to the loan agreements. Thus, they seek to enforce the arbitration provisions in the agreements as non-signatories.

B.

The defendants are Originating Depository Financial Institutions ("ODFIs"). As such, working through the Automated Clearinghouse Network, they debited plaintiff's bank account on behalf of the payday lenders. In doing so, they allegedly violated rules and regulations that that required them to perform risk-based due diligence and monitoring for unlawful transactions.

Because they assisted the payday lenders by debiting plaintiff's bank account in connection with an allegedly illegal loan, defendants are charged with having committed RICO violations and having aided and abetted the payday lenders in violating the Maryland statute prohibiting usury.[3]

II.

Non-signatories to an arbitration agreement (such as defendants) may enforce arbitration agreements when (1) principles of equitable estoppel apply because the non-signatory is being sued for conduct that is intertwined with the agreement contained in the arbitration provision, (2) the non-signatory is a third-party beneficiary of the agreement; or (3) the claim is based on conduct which the non-signatory allegedly took as an agent on behalf of the party with which the plaintiff agreed to arbitrate. See generally Arthur Andersen v. Carlisle, 556 U.S. 624, 631 (2009).[4]

There are two related but independent bases for applications of equitable estoppel: (1) "when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the non-signatory;" and (2) "when the signatory to the contract containing the arbitration clause raises allegations of substantially interdependent and concerted misconduct by both a non-signatory and one or more signatories to the contract." Case Handyman & Remodeling Srvs. v. Schuele, 959 A.2d 833, 842 (Maryland Ct. Spec. App. 2008), vacated on other grounds, 989 A.2d 210 (Md. 2010).[5] Both of these exceptions apply here. Clearly, plaintiff must rely on the terms of the written agreement in which the arbitration clause is contained because it is that agreement that contains the allegedly usurious interest provision upon which this law suit is based. Equally clearly, according to plaintiff's allegations, defendants and the payday lenders engaged in "substantially interdependent and concerted misconduct" by virtue of the fact that defendants were responsible for the debits made to plaintiff's bank account based upon the allegedly usurious loans.

Arbitration law may have developed quite differently than it did. For example, precedent might establish that where a plaintiff alleges a violation of public policy embodied in a legislative enactment, an arbitration clause concerning a claim based upon an alleged violation of that policy is invalid. It would not be unreasonable to find that under such a circumstance a judge, as the representative of a public institution, rather than an arbitrator, should decide the issues. That, however, is not the way in which arbitration law has been developed, and it is not the role of this court to radically change arbitration law as plaintiff suggests.[6] Accordingly, defendants' motions will be granted and this action will be stayed and administratively closed.


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