A California appeals panel has ruled a collection agency came up broke in arguing an alleged debtor, by simply using his credit card, implied he would arbitrate rather than sue the agency for allegedly breaching debt collection law.
The Jan. 31 decision was authored by Judge John Devine, with concurrence from Presiding Justice Jim Humes and Associate Justice Sandra Margulies, of California First District Appellate Court, which is seated in San Francisco. Devine is a judge in Contra Costa County Superior Court, who has been assigned to hear cases at the appellate court.
The appellate decision favored Bruno Fleming in his putative 2020 class action against Oliphant Financial, a debt collection agency based in Sarasota, Fla. The suit was lodged in Santa Clara County Superior Court in San Jose.
Oliphant came into contact with Fleming over his Barclays credit card.
Fleming's suit alleged Oliphant violated the California Rosenthal Fair Debt Collection Practices Act. In turn, Oliphant filed a petition, citing the Federal Arbitration Act, to compel Fleming to arbitrate his alleged dispute with the collection company, rather than press his lawsuit.
Oliphant has argued agreements were in place that required Fleming to arbitrate disputes concerning his Barclays credit card account when he opened the account in 2013; when he made his last account payment in 2018; and when the account was charged-off in 2018.
Fleming denied signing any arbitration agreement or even seeing one.
In April 2021, Judge Patricia M. Lucas denied Oliphant's request for the petition, saying the petition had little substance.
“Defendant does not explain how Plaintiff could have consented to any agreement that he was not provided," Lucas said.
In appellate court, Judge Devine also rejected Oliphant's arguments, citing the "dearth of evidence" that Fleming ever saw, much less consented to, an arbitration agreement.
"There is no evidence in the record of any signed agreement between Barclays and Fleming," Devine pointed out.
With no signed agreement, Devine turned down Oliphant's contention Fleming's use of the credit card implied his obligation to arbitrate.
"Oliphant cites a number of cases in ostensible support of this proposition, but nearly all of them are factually and legally distinguishable," Devine observed.
In denying Oliphant's appeal, Devine ordered that the agency is responsible for Fleming's expenses in fighting the appeal.
Fleming has been represented by Fred W. Schwinn, Raeon R. Roulston and Matthew C. Salmonsen, of Consumer Law Center in San Jose.
Oliphant has been defended by Katherine S. Catlos and Marcus Dong, of the Oakland and San Francisco offices of the New York City-based Kaufman, Dolowich & Voluck.