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Fluke v. Cashcall

May 21, 2009

KEVIN FLUKE
v.
CASHCALL, INC.



The opinion of the court was delivered by: Bartle, C.J.

MEMORANDUM

On November 21, 2008, Kevin Fluke, a citizen of Pennsylvania, filed this putative class action lawsuit in state court against CashCall, Inc. ("CashCall"), a California corporation with its principal place of business there. Less than one month later, on December 12, 2008, CashCall removed the action to this court on the ground that the requirements of minimal diversity of citizenship and of the amount in controversy were satisfied pursuant to the Class Action Fairness Act ("CAFA") of 2005, 28 U.S.C. § 1332(d)(2) and 28 U.S.C. §§ 1441, 1446, and 1453. On March 10, 2009, we denied the motion of Fluke to remand for lack of subject matter jurisdiction to the Court of Common Pleas of Philadelphia County under 28 U.S.C. § 1447(c).*fn1 We have jurisdiction over this action pursuant to the CAFA.

Fluke seeks declaratory and injunctive relief compelling arbitration on a class basis and monetary relief for alleged violations of the Loan Interest and Protection Law, 41 Pa. Stat. Ann. §§ 201 and 502, and the Consumer Discount Company Act, 7 Pa. Stat. Ann. § 6203.A. He claims that CashCall preys on low income, low credit score borrowers by making loans with usurious interest rates and fees. The class of borrowers he seeks to represent are "citizens" of Pennsylvania who have been or are currently being subjected to unlawful interest rates and fees.

Now pending before the court is the motion of CashCall to stay these proceedings and compel arbitration on an individual basis.

I.

In June of 2007, Fluke, a Pennsylvania citizen, applied online for a loan with First Bank of Delaware ("FBD"), a Delaware-chartered depository institution headquartered in Wilmington, Delaware. See Jordana Gilden Decl. ¶ 8. FBD is not a party to this action. The defendant, CashCall, markets and services loans offered by federally insured banks, including FBD. It marketed and serviced the $2,600 loan issued to Fluke. Pursuant to this arrangement, FBD performed the credit scoring and underwriting of the loan, processed the loan application, and funded the approved loans, while CashCall initially marketed, advertised, and serviced the loan. See Gilden Decl. ¶ 6. The FBD Note explains this arrangement as follows:

CashCall, Inc. has served as the marketing agent for First Bank of Delaware in this transaction; however CashCall was not responsible for and did not make any of the credit or lending decisions. All credit and lending decisions were made by First Bank of Delaware and First Bank of Delaware will originate and fund this loan.

After the loan was funded by FBD, the loan was transferred and assigned to CashCall. See Ex. B to Gilden Decl.

Before obtaining the loan, Fluke completed and electronically signed an FBD Loan Agreement, which provides for the application of Delaware law to any dispute arising from the loan. It states:

This Note, and any claim, dispute or controversy arising from or relating to this Note, are governed by and construed in accordance with the laws of the State of Delaware (without regard to its conflicts of law rules) and applicable federal law. The legality, enforceability, and interpretation of this Agreement and the amounts contracted for, charged, and received under this Agreement will be governed by such laws.

This Agreement is entered into between you and me in Delaware.

The Agreement also contains the following arbitration clause:

ARBITRATION. PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. I UNDERSTAND THAT UNLESS I EXERCISE THE RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, I AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE ARBITRATION RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. I ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN MYSELF AND YOU OR THE HOLDER OF THE NOTE AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING.

The Agreement further provides with respect to arbitration:

Agreement to Arbitrate. The parties agree that any Dispute, except as provided below, will be resolved by Arbitration. This agreement is governed by the Federal Arbitration Act (FAA), 9 U.S.C.S. ยง 1 et seq. and the substantive law of the ...


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