Zambrana v. Pressler and Pressler, LLP et al Doc.

88

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT DOC #:
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 12/2/16
-------------------------------------------------------------- X
ALICIA ZAMBRANA, on behalf of herself and :
others similarly situated, :
:
Plaintiff, : 16-CV-2907 (VEC)
:
-against- : MEMORANDUM
: OPINION & ORDER
PRESSLER AND PRESSLER, LLP; SHELDON :
H. PRESSLER, GERARD J. FELT; LAWRENCE :
J. MCDERMOTT, JR.; DAVID B. WARSHAW; :
ARISTOTLE SANGALANG; ABSOLUTE :
RESOLUTIONS VI, LLC; BUREAUS :
INVESTMENT GROUP PORTFOLIO NO. 15 :
LLC; THE BUREAUS, INC.; and BUREAUS :
INVESTMENT GROUP III, LLC; :
:
Defendants. :
-------------------------------------------------------------- X

VALERIE CAPRONI, United States District Judge:

INTRODUCTION

Plaintiff Alicia Zambrana brings this putative class action against various assignee

creditors of a credit card account originated by Household Bank N.A. and the assignee creditors’

agents, alleging violations of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. §

1692, and New York General Business Law § 349. Defendants now move to compel arbitration

based on the arbitration provision in Plaintiff’s cardholder agreement. For the following reasons,

Defendants’ motions to compel arbitration are GRANTED.1

1
Defendants Pressler & Pressler LLP, Gerard Felt, Sheldon Pressler, David Warshaw and Lawrence
McDermott filed one motion to compel arbitration (Dkt. 69), which the Court will cite as “Pressler Defs. Mem.”
Defendants Bureaus Investment Group III LLC, Bureaus Investment Group Portfolio No. 15 LLC, the Bureaus Inc.,
Absolute Resolutions VI LLC, and Aristotle Sangalang filed a separate motion to compel arbitration (Dkt. 72),
which the Court will cite as “Collector Defs. Mem.”

Dockets.Justia.com
 BACKGROUND

Plaintiff applied for and received a Best Buy-branded credit card from Household Bank

N.A. (“HSBC”).2 Am. Compl. ¶ 108 (Dkt. 53). The account’s activation date is unclear, but

Plaintiff entered into a cardholder agreement as of at least 2003 (“2003 Agreement”). Am.

Compl. Ex. 16 (Dkt. 53-16). The 2003 Agreement includes an arbitration provision. Am.

Compl. Ex. 16 ¶ 6 (Dkt. 53-16). In May 2010, HSBC allegedly sent an amended cardholder

agreement (“2010 Agreement”) in response, at least in part, to new requirements imposed by the

Credit Card Accountability Responsibility Disclosure Act (“CARD Act”). Declaration of Eric

Gribben (“Gribben Decl.”) ¶¶ 4, 7 (Dkt. 81-3). The 2010 Agreement has a revised arbitration

provision that includes the ability to opt out of arbitration if notice was given within thirty days

of receipt of the new agreement. 3 Pl. Opp. Ex. B (Dkt. 77-2). Plaintiff did not opt out of

arbitration and continued to use the credit card until 2011.4 Collector Defs. Reply 7; Am.

Compl. Ex. 17 at 7, 35 (Dkt. 53-17).

Plaintiff’s credit card account has been assigned numerous times to various creditors. In

May 2012, when HSBC spun off its credit card operation to non-party Capital One, National

Association (“Capital One”), HSBC assigned the account to Capital One. Collector Defs. Mem

4 (Dkt. 72). In mid-2012, Plaintiff defaulted on her credit card debt, and Capital One charged off

2
In the early 2000s, Household Bank, a large commercial lender, was acquired by HSBC, a large
international bank.
3
The change in the arbitration clause was not related to the changes required by the CARD Act. Collector
Defs. Reply 6 & n.4 (Dkt. 81); Declaration of Eric J. Gribbin (“Gribbin Decl.”) ¶ 6 (Dkt. 81-3).
4
Plaintiff submitted bank statements with her Amended Complaint covering July 2, 2010 through March 30,
2012. Am. Compl. Ex. 17. According to those limited statements, Plaintiff last used the card to make a purchase on
October 11, 2010, id. at 7, and Plaintiff last made a down payment on the card’s balance on December 22, 2011, id.
at 35.

2
the account. Id. After various assignments,5 Defendant assignee Absolute filed suit in New

York State court through its attorneys, Pressler & Pressler, LLP, in order to collect Plaintiff’s

debt; that suit is currently pending. Id.

In response to that state court action, Plaintiff filed this suit against Pressler & Pressler,

individual lawyers at Pressler & Pressler,6 the Bureaus Inc., Aristotle Sangalang, who is

president of the Bureaus Inc. (collectively, the “Agent Defendants”), and various creditor

assignees (collectively, “Assignee Defendants”), alleging violation of the FDCPA and New York

General Business Law § 349. Am. Compl. ¶ 4. Plaintiff claims that the state court action is an

abusive debt collection practice in violation of the FDCPA because there are false and

misleading statements and omissions in Absolute’s complaint against Plaintiff. Id. ¶ 5(viii).

Plaintiff further alleges that even those Defendants who did not file the state court action—i.e.,

all Defendants except Pressler & Pressler and Absolute—are liable for their deceptive practices

when selling Plaintiff’s credit card account, namely Defendants knew the debt was not properly

assigned but nevertheless attempted to collect the debt and provided a false pretense on which

Absolute is now attempting to collect on the debt. Id. ¶¶ 5(ix), 196.

Defendants move to stay this action and to compel arbitration. Plaintiff opposes with a

sort of “heads I win, tails you lose” argument. She asserts that because Defendants have not

proven that HSBC sent the 2010 Agreement to her specifically, although they did send it to other

cardholders, not only is the 2003 Agreement superseded and of no effect, but the 2010

5
In September 2012, Capital One assigned Plaintiff’s account to Defendant Bureaus Investment Group III,
LLC (“BIGIII”). Collector Defs. Mem. 4. Subsequently, in October 2012, BIG III assigned the account to its
subsidiary, Defendant Bureaus Investment Group Portfolio No. 15 (“BIGP15”). Id. BIGP15 then assigned it to
non-party Absolute Resolutions Corporation in May 2014. Id. Finally, Absolute Resolutions assigned it to its
subsidiary, Defendant Absolute Resolutions VI, LLC (“Absolute”). Id.
6
Defendants Sheldon Pressler, Gerard Felt, Lawrence McDermott, and David Warshaw are partners at
Pressler & Pressler LLP. Am. Compl. ¶¶ 20, 32, 41, 48.

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Agreement is also inoperative. Further, because Defendants have not shown that she was sent

the 2010 Agreement, her failure to opt out of arbitration, she asserts, is of no moment. Plaintiff

cannot have it both ways. Either the 2010 Agreement was sent to her so that her failure to opt

out of arbitration means that she is bound by the 2010 Agreement, or it was never sent to her, in

which case the 2003 Agreement with its arbitration provision remains in force. Either way,

because the Court finds that a valid arbitration agreement exists, that it covers the dispute, and

that Defendants have standing to compel arbitration pursuant to the agreement, the motions to

compel arbitration and to stay this action are GRANTED.

DISCUSSION

I. Legal Standard

The Federal Arbitration Act (“FAA”) embodies a strong “national policy favoring

arbitration.” AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 346 (2011); see also Ross v.

Am. Express Co., 547 F.3d 137, 142 (2d Cir. 2008). For that reason, “any doubts concerning the

scope of arbitrable issues should be resolved in favor of arbitration . . . ,” Moses H. Cone

Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 24-25 (1983), and courts should

“construe arbitration clauses as broadly as possible,” David L. Threlkeld & Co. v.

Metallgesellschaft Ltd., 923 F.2d 245, 250 (2d Cir. 1991) (quotation marks and citation omitted).

Pursuant to the FAA, a district court must grant a motion to compel arbitration if a valid

arbitration agreement exists and if the scope of the agreement governs the issues in the case. See

9 U.S.C. § 4; Buchman v. Weiss, No. 08 CIV.5453 (RJS), 2009 WL 2044615, at *2 (S.D.N.Y.

July 15, 2009) (quoting Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Belco Petroleum Corp.,

88 F.3d 129, 135 (2d Cir. 1996)). Whether an arbitration agreement exists is a preliminary

determination for the court to decide. See BG Grp., PLC v. Republic of Argentina, 134 S. Ct.

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1198, 1206 (2014); see also John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48, 53 (2d Cir.

2001) (“Unless the parties clearly and unmistakably provide otherwise, the question of whether

the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” (quotation marks

and citations omitted)). Moreover, “[b]ecause an agreement to arbitrate is a creature of

contract . . . the ultimate question of whether the parties agreed to arbitrate is determined by state

law.” Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002). To determine whether an

arbitration agreement exists, a district court applies a “standard similar to that applicable for a

motion for summary judgment.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003). It

is, therefore, “proper (and in fact necessary) to consider extrinsic evidence when faced with a

motion to compel arbitration.” BS Sun Shipping Monrovia v. Citgo Petroleum Corp., No. 06–

CV–839 (HB), 2006 WL 2265041, at *3 n.6 (S.D.N.Y. Aug. 8, 2006). Once the movant has

satisfied its initial burden to demonstrate the existence of an agreement to arbitrate, the burden

shifts to the opposing party to “demonstrate a substantial issue on the existence vel non of an

agreement to arbitrate.” Scone Investments, L.P. v. Am. Third Mkt. Corp., 992 F. Supp. 378, 381

(S.D.N.Y. 1998) (quotation marks and citations omitted).

As to the scope of the arbitration agreement, if the agreement is broad such that it

requires arbitration of “any and all disputes,” then “there arises a presumption of arbitrability.”

Edwards v. Macy’s Inc., No. 14-CV-8616 (CM), 2015 WL 4104718, at*10 (S.D.N.Y. June 30,

2015) (citing Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 23 (2d Cir. 1995)).

“Only if the agreement is a narrow one does the court examine the possibility that contract

construction might not be arbitrable.” Id. (citing Louis Dreyfus Negoce S.A. v. Blystad Shipping

& Trading Inc., 252 F.3d 218, 224 (2d Cir. 2001)). The parties do not disagree that the scope of

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the arbitration agreement would cover this dispute; Plaintiff only disputes whether a valid

arbitration agreement exists.

II. A Valid Arbitration Agreement Exists

The 2003 Agreement provides: “Any claim, dispute or controversy . . . shall be resolved,

upon the election of you or us, by binding arbitration pursuant to this arbitration provision and

the applicable rules or procedures of the arbitration administrator selected at the time the Claim

is filed.” Am. Compl. Ex. 16 ¶ 6. This provision unequivocally covers Plaintiff’s claims against

Defendants. The arbitration agreement also precludes class actions without the consent of both

parties. Id.

Plaintiff argues that the 2003 Agreement attached as an exhibit to her Amended

Complaint may have been terminated or superseded in 2010 when HSBC updated its cardholder

agreements. Pl. Opp. 1-2 (Dkt. 77). Plaintiff contends that Defendants cannot meet their burden

to prove that she received the 2010 Agreement and is thus bound by that superseding cardholder

agreement, including the arbitration provision. See Pl. Opp. 4-12;Pl. Sur-Reply 1-4 (Dkt. 87).

Thus, according to Plaintiff, because there is uncertainty surrounding whether she received the

2010 Agreement, there is a substantial issue as to whether an arbitration agreements exists.

Notwithstanding Plaintiff’s argument, there is no substantial issue that an arbitration

agreement exists between the parties. The 2003 Agreement and its arbitration provision are

binding on Plaintiff. Plaintiff relies on the 2003 Agreement in her Amended Complaint, see Am.

Compl. ¶¶ 108, 190, 196(a); id. Ex. 16, and she alleges that the credit card was issued to her, see

id. ¶ 108. “[T]he allegations in the [complaint] are ‘judicial admissions’ by which [plaintiff is]

‘bound through the course of the proceeding.’” Official Comm. of the Unsecured Creditors of

Color Tile, Inc. v. Coopers & Lybrand. LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quoting

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Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985)). Plaintiff is bound

by her admission in her Amended Complaint that she was issued the Best Buy-branded credit

card pursuant to the 2003 Agreement.

Plaintiff argues that these references and statements in her Amended Complaint are not

judicial admissions that the credit card belonged to her or that she received and agreed to the

2003 Agreement. See Pl. Opp. 10-12. Instead, according to Plaintiff, those allegations are

merely intended to reflect that there are credit card account statements in Plaintiff’s name and

that Defendants believe Plaintiff owes the debt. See id. Nowhere, however, does Plaintiff

affirmatively allege that this credit card does not belong to her, nor does she allege any facts

from which one could plausibly infer that the credit card does not belong to her. Plaintiff’s

counsel merely attests that “Plaintiff always has insisted that she has no memory of having this

credit card,” Declaration of Mitchell Pashkin (“Pashkin Decl.”) ¶ 9 (Dkt. 79), while Plaintiff

attests that she “had [sic] no recollection of ever seeing” the 2003 Agreement before her attorney

showed it to her, see Declaration of Alicia Zambrana (“Zambrana Decl.”) (Dkt. 78). Even if

those statements can be read to constitute an allegation that the credit card was not actually

issued to her, they do not demonstrate a substantial issue on the existence vel non of the 2003

agreement to arbitrate. See Scone Investments, L.P. v. Am. Third Mkt. Corp., 992 F. Supp. at 381

(“In order to establish a substantial issue of fact, plaintiffs must unequivocally deny that they

entered into an agreement to arbitrate with movants and should offer at least some evidence to

substantiate their factual allegations.” (citing Doctor’s Associates, Inc. v. Jabush, 89 F.3d 109,

114 (2d Cir. 1996)). Moreover, the theory of Plaintiff’s case as articulated in her Amended

Complaint is that Defendant Absolute is attempting to collect the credit card debt illegally

because ownership of the debt was not properly assigned from HSBC to the successor

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creditors—not because Plaintiff does not owe the debt or own the credit card. Accordingly,

Plaintiff is bound by the terms of the 2003 Agreement.

Defendants have not, however, met their burden to show that Plaintiff received notice of

and is thus bound by the revised 2010 Agreement. It is “well settled law” that notice of an offer

to contract must be provided to an offeree before acceptance can be valid. See MBNA Am. Bank,

N.A. v. Nelson, 841 N.Y.S.2d 826 (Civ. Ct. 2007); see also Trimble v. N.Y. Life Ins. Co., 255

N.Y.S. 292, 295 (App. Div. 1932) (“An offer may not be accepted until it is made and brought to

the attention of the one accepting.”). When the record shows that there was an ordinary office

procedure for mailing, a court can presume that an individual who was a customer during the

relevant time period would have received notice of the updated agreement terms. See Ma v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 597 F.3d 84, 92 (2d Cir. 2010) (“[A] presumption

of receipt arises where . . . the record establishes office procedures, followed in the regular

course of business, pursuant to which notices have been addressed and mailed.” (citations

omitted)).

Defendants have submitted a declaration from Eric Gribbin in an attempt to demonstrate

that HSBC mailed the 2010 Agreement to all Best Buy cardholders, including Plaintiff. During

the relevant time period, Gribbin was responsible for the Best Buy credit card portfolio as Senior

Legal Counsel for HSBC’s Credit Card and Retail Services law department; Gribbin states that

the Notice, which he helped develop, was sent to all HSBC Best Buy cardholders, that Plaintiff

was a cardholder at the time, and that the Notice “would have been” mailed to her at the address

on file. Gribbin Decl. ¶¶ 2, 5, 7. Because, however, Gribbin does not purport to have first-hand

knowledge of whether the 2010 Agreement was sent to Plaintiff and does not describe a standard

office mailing procedure, Defendants have no evidence that the 2010 Agreement was sent to

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Plaintiff or that she otherwise received the 2010 Agreement. See SEC v. Espuelas, 905 F. Supp.

2d 507, 522 n.6 (S.D.N.Y. 2012) (determining “presumption of receipt” requires “admissible

evidence of the fact of mailing, such as testimony from the person who actually mailed the

letter” or “where the record establishes office procedures, followed in the regular course of

business, pursuant to which notices have been addressed and mailed” (citations omitted)); see

also Bronia, Inc. v. Ho, 873 F. Supp. 854, 859 (S.D.N.Y. 1995) (“To invoke the presumption, a

party must first produce evidence of mailing, either by offering the testimony of the person who

actually mailed the letter or through indirect evidence such as proof that the mail was sent

through office procedures followed in the regular course of business.” (citation omitted));

Frankel v. Citicorp Ins. Services, Inc., 913 N.Y.S.2d 254, 258 (App. Div. 2010) (holding an

“affidavit of the senior vice-president . . . was insufficient to demonstrate personal knowledge of

actual mailing.”); Matter of Lumbermens Mut. Cas. Co. (Collins), 521 N.Y.S.2d 432, 434 (App.

Div. 1987) (holding presumption of receipt not established, even though the challenger’s name

had been listed on a print-out as a customer to whom notice was sent, because “internal

precautionary procedures” were not described).

The failure to prove mailing or receipt of the 2010 Agreement is of no moment, however,

because even if Plaintiff never received the 2010 Agreement, she continues to be bound by the

arbitration provision in the 2003 Agreement. If HSBC never mailed the updated agreement to

Plaintiff, there is no agreement to supersede the 2003 Agreement, and Plaintiff continues to be

bound by its terms. Similarly, if HSBC mailed the updated agreement, but Plaintiff never

received it and thus did not consent to it because she did not have notice, the parties continue to

be bound by the 2003 Agreement because it was never superseded. See Marine Transp. Lines,

Inc. v. Int’l Org. of Masters, Mates & Pilots, 878 F.2d 41, 46 (2d Cir. 1989) (terms of a prior

9
contract still govern to the extent not inconsistent with any new terms); GEM Advisors, Inc. v.

Corporacion Sidenor, S.A., 667 F. Supp. 2d 308, 328 (S.D.N.Y. 2009) (determining that because

the new agreement was invalid, the prior agreement still controlled); Phillips v. CIGNA Inv., Inc.,

27 F. Supp. 2d 345, 359 (D. Conn. 1998) (holding that employer sending employee an arbitration

agreement and employee continuing to work did not manifest consent to make the agreement

part of the original employment contract, thus the original contract governed).7 Therefore, the

Defendants have established that a valid arbitration agreement exists—the 2003 Agreement—

and it governs the dispute.

III. Defendants Can Enforce the Arbitration Agreement

Plaintiff argues that even if there is an arbitration agreement, Defendants lack standing to

enforce it because the credit card debt was improperly assigned from HSBC to Capital One—and

thus also improperly assigned to the subsequent assignees. Specifically, Plaintiff contends

Defendants cannot enforce the arbitration agreement because they have failed to prove a

complete chain of title establishing ownership of Plaintiff’s credit card debt. See Pl. Opp. 13-24;

Pl. Sur-Reply 4-5. Defendants counter that they have presented sufficient proof that the account

was assigned and thus can enforce the arbitration clause as either assignees or agents of an

assignee. Collector Defs. Reply 2, 3-5. The Court finds that Defendants have adequately

established for the purpose of these motions that Plaintiff’s credit card account was assigned to

Capital One and the Assignee Defendants and that Defendants can thus enforce the arbitration

agreement as assignees or agents of the assignees.

7
To the extent any provisions in the 2003 Agreement may have been invalidated by the CARD Act, that
would not invalidate the arbitration provision. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 446
(2006) (“As a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder
of the contract.”).

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 A. Defendants BIGIII, BIGP15, and Absolute Can Enforce the Arbitration Agreement
as Assignees

“Under New York law, an arbitration clause is generally held to apply to the assignee of a

contract.” See Variblend Dual Dispensing Sys., LLC v. Seidel GmbH & Co., KG, 970 F. Supp.

2d 157, 166 (S.D.N.Y. 2013) (citing Lipman v. Haeuser Shellac Co., 289 N.Y. 76, 81 (1942))

(citations omitted); see also Jugometal v. Samincorp, Inc., 78 F.R.D. 504, 507 (S.D.N.Y. 1978)

(“An assignee has the same standing to enforce an arbitration award in this Court as its assignor

would have . . . .”). A party must prove assignment of a contract by a preponderance of the

evidence. See Solar & Envtl. Techs. Corp. v. Zelinger, 726 F. Supp. 2d 135, 143, 148 (D. Conn.

2009) (holding that under New York law, party seeking to enforce arbitration agreement must

prove agreement by preponderance of the evidence (citing Progressive Cas. Ins. Co. v. C.A.

Reaseguradora Nacional de Venezuela, 991 F.2d 42, 46 (2d Cir. 1993)); Empire Lighting

Fixture Co. v. Browning, 157 N.Y.S. 284, 286 (App. Term 1916) (finding assignment of contract

based on preponderance of evidence).

To prove assignment, Defendants have submitted (1) an affidavit by a Capital One

Litigation Support Representative who reviewed Capital One’s business records and (2) a bill of

sale executed by HSBC and Capital One. The Capital One representative avers that Capital One

acquired certain HSBC credit card accounts on May 1, 2012, including Plaintiff’s Best Buy-

branded account ending in 2166. Declaration of Grace von Ancken (“Von Ancken Decl.”) ¶ 3

(Dkt. 72-4). The Bill of Sale assigned to Capital One HSBC credit card accounts such as

Plaintiff’s, including all rights and interest in the accounts. Collector Defs. Reply Ex. A (Dkt.

81-1).8 Plaintiff only takes issue with Defendants’ proof of assignment from HSBC to Capital

8
The Bill of Sale is admissible as a business record subject to authentication. Fed. R. Evid. 803(6); see, e.g.,
United States v. Hines, 564 F.2d 925, 928 (10th Cir. 1977) (holding bill of sale properly admitted as business
record); Miller v. Wolpoff & Abramson, LLP, No. 1:06-CV-207 (TS), 2007 WL 2694607, at *9 (N.D. Ind. Sept. 7,

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One. The parties do not dispute that Plaintiff’s credit card account was subsequently assigned to

BIGIII, BIGP15, and Absolute, and the parties included in the record bills of sale, affidavits of

sale, conformities of sale, and transfer agreements reflecting those assignments. Pashkin Decl.

Ex. 2 (Dkt. 79-2). For the purpose of enforcing the arbitration agreement, Defendants have

satisfied their burden to prove by a preponderance of the evidence that Plaintiff’s account and

corresponding cardholder agreement were assigned.

Plaintiff, pointing to New York debt collection cases, contends that Defendants have not

presented sufficient proof to establish a complete chain of title. This, however, is not a debt

collection case; it is an FDCPA case in which Plaintiff alleges Defendants have improperly

attempted to collect the credit card debt from her in a separate lawsuit. The “special proof”

required by New York law to establish a credit card account assignee’s claim on the account

does not apply here because the Assignee Defendants are not pursuing a claim on Plaintiff’s

credit card account in this case, although it may apply to the separate New York Supreme Court

lawsuit that spawned this case. See Citibank (S. Dakota), N.A. v. Martin, 807 N.Y.S.2d 284, 291

(Civ. Ct. 2005) (holding that claims by an assignee of a credit card account require “special

proof,” i.e., proof of assignment of a particular account or evidence of consideration paid and

delivery of the assignment if an oral assignment).

2007) (holding bill of sale of credit card account was admissible as a business record), aff’d, 309 F. App’x 40 (7th
Cir. 2009). Although Plaintiff disputes that the Bill of Sale suffices to establish assignment, she does not dispute the
Bill of Sale’s authenticity. Pl. Sur-Reply 4-5. Defendants have not authenticated the Bill of Sale, but “even
inadmissible evidence may properly be considered on summary judgment if it may reasonably be reduced to
admissible form at trial.” Parks v. Blanchette, 144 F. Supp. 3d 282, 293 (D. Conn. 2015)(quotation marks and
citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean that the
nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary
judgment.”). Because a summary judgment-like standard applies to motions to compel arbitration, Bensadoun v.
Jobe-Riat, 316 F.3d at 175, the Court considers the Bill of Sale for the purpose of resolving the motion to compel
arbitration.

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 Accordingly, BIGIII, BIGP15, and Absolute can enforce the arbitration agreement as

assignees.

B. Sanglang, Pressler & Pressler, Pressler & Pressler’s Partners, and the Bureaus, Inc.
Can Enforce the Arbitration Agreement as Agents of the Assignees

Agent Defendants—Sangalang, Pressler & Pressler and its partners, and the Bureaus,

Inc.—may enforce the arbitration provision in Plaintiff’s cardholder agreement as agents of the

Assignee Defendants. “Traditional principles of agency law may bind a nonsignatory to an

arbitration agreement.” See Thomson-CSF, S.A. v. Am. Arbitration Assoc., 64 F.3d 773, 777 (2d

Cir. 1995)). “A non-signatory to an arbitration agreement may benefit from that agreement

where the legal basis for, and the factual context of, the claims alleged against the non-signatory

are the same as the claims alleged against the signatory where the non-signatory is the disclosed

agent or principal of the signatory.” Hoffman v. Aaron Kamhi, Inc., 927 F. Supp. 640, 643

(S.D.N.Y. 1996) (citing Roby v. Corporation of Lloyd’s, 996 F.2d 1353, 1360 (2d Cir. 1993),

cert. denied, 510 U.S. 945 (1993)); see also McKenna Long & Aldridge, LLP v. Ironshore

Specialty Ins. Co., No. 14-CV-6633 (KBF), 2015 WL 144190, at *7 (S.D.N.Y. Jan. 12, 2015)

(“[T]he corporate agent may use the arbitration provision as a sword to compel arbitration, which

is to say, a shield against litigation before a court.”).

Pressler & Pressler, as well as the individually-named lawyers, may enforce the

arbitration agreement as agents of Absolute. See Veal v. Geraci, 23 F.3d 722, 725 (2d Cir. 1994)

(holding attorneys act as agents for their clients). Plaintiff herself bases her allegations against

these Defendants on their agency relationship with Absolute, Am. Compl. ¶ 138; Pressler &

Pressler and its attorneys are disclosed agents for Absolute because they openly represent

Absolute in the separate debt collection lawsuit. Plaintiff’s claims against Pressler & Pressler

and its law partners are also the same as her claims against the Assignee Defendants.

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Additionally, Plaintiff alleges that Sangalang, President of Bureaus, Inc., was the agent of

BIGP15 in executing the purportedly invalid sale agreements transferring Plaintiff’s credit card

account from BIGIII to BIGP15 and from BIGP15 to Absolute Resolutions. Am. Compl. ¶ 195.

Sangalang may thus enforce the arbitration provision as agent of assignee BIGP15. See

Hirschfield Prods., Inc. v. Mirvish, 88 N.Y.2d 1054, 1056 (1996). (“The Federal courts have

consistently afforded agents the benefit of arbitration agreements entered into by their principals

to the extent that the alleged misconduct relates to their behavior as officers or directors or in

their capacities as agents of the corporation.” (citations omitted)); see also Hamerslough v.

Hipple, No. 10 CIV. 3056 (NRB), 2010 WL 4537020, at *2-3 (S.D.N.Y. Nov. 4, 2010) (holding

that non-signatory corporate directors could enforce the arbitration agreement as agents).

Likewise, Plaintiff is suing the Bureaus, Inc. as an agent of BIGP15 and BIGIII because the

Bureaus, Inc. “is the master servicer for BIGP15” and “maintains all electronic and paper

business records for BIGIII and BIGP15.” Am. Compl. ¶ 193. Accordingly, the Bureaus, Inc.

may enforce the arbitration provision as an agent of assignees BIGP15 and BIGIII.

CONCLUSION

For the foregoing reasons, Defendants’ motions to compel arbitration are GRANTED.

The Clerk of Court is respectfully directed to terminate docket entries 68 and 71. The case will

remain stayed pending arbitration. The parties must submit joint letters on a quarterly basis

informing the Court of the status of the arbitration proceeding; the first letter is due no later than

March 1, 2017.

SO ORDERED.

_______________________ _______
_________________________________
Date: December 2, 2016 VALERIE CAPRON
CAPRONI NI
New York, New York United States District Judge

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