United States District Court, D. Massachusetts
NICHOLAS A. HAYS, Plaintiff,
JEFFERSON CAPITAL SYSTEMS, LLC, Defendant.
OPINION AND ORDER
A. O'Toole, Jr. United States District Judge
plaintiff, Nicholas A. Hays, originally filed this action in
Suffolk Superior Court on behalf of himself and a purported
class of similarly situated individuals. The defendant,
Jefferson Capital Systems, LLC (“Jefferson
Capital”), removed the action to this Court. The
central allegation of the Amended Complaint is that the
defendant has been engaged in debt collection practices
without a license, in violation of Massachusetts law.
case concerns the plaintiff's Aspire Visa credit card
account which he opened in 2005 with Columbus Bank &
Trust Company (“CB&T”). Atlanticus Services
Corporation (“Atlanticus”) was responsible for
servicing and maintaining records for that account. In 2009,
CB&T assigned all right, title, and interest in the
plaintiff's credit card account to Atlanticus. In 2010,
the plaintiff's card was charged off with an outstanding
unpaid balance. Thereafter, in 2011, Atlanticus assigned all
right, title, and interest in the plaintiff's account to
Jefferson Capital. Jefferson Capital placed the account with
a law firm that began sending collection letters to the
plaintiff, which eventually led to a small claims court
action. That action was later voluntarily dismissed.
Subsequently, the plaintiff brought this action.
before the Court is the defendant's motion to compel
arbitration (dkt. no. 49) and the plaintiff's motions to
strike portions of the materials the defendant submitted in
support of its motion (dkt. nos. 53, 65). When assessing the
existence or validity of an agreement to arbitrate, courts
“should apply ordinary state-law principles that govern
the formation of contracts.” First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
plaintiff argues that Jefferson Capital has not shown that
there is a valid agreement to arbitrate binding the parties.
For support, the plaintiff looks to the Eleventh
Circuit's decision in Bazemore v. Jefferson Capital
Systems, LLC, 827 F.3d 1325 (11th Cir. 2016). In
Bazemore, the evidence of the existence of an
arbitration agreement was thin, leading the court to affirm
the denial of the motion to compel arbitration. Id.
at 1331-32, 34. The defendant here, by contrast, submitted
two declarations from Atlanticus employee Gregory Ryan with
attached exhibits evidencing the existence of an agreement to
arbitrate. The Ryan declarations state that in 2005
Atlanticus mailed a credit card to the plaintiff after the
plaintiff's credit card application was approved. A
“Welcome Kit, ” which included a cardholder
agreement containing an arbitration provision, was enclosed
in that mailing in accordance with CB&T's routine
business practice, and business records explicitly tie the
document identifier on the front of the cardholder agreement
to the plaintiff's credit card account. The paper trail
further shows that the plaintiff activated and used his card,
manifesting his receipt of the agreement and his assent to
its arbitration term. This uncontroverted evidence is enough to
distinguish this case from Bazemore.
plaintiff does not attempt to contradict the defendant's
showing of the formation and existence of an agreement to
arbitrate. Rather, he raises evidentiary objections to the
Court's consideration of Ryan's declarations and
exhibits. His objections are without merit. Ryan is a
qualified affiant whose declarations sufficiently
authenticate the business records he has
provided.See Wallace Motor Sales, Inc. v. Am.
Motors Sales Corp., 780 F.2d 1049, 1061 (1st Cir. 1985)
(citations omitted); see also Schwartz v. CACH, LLC,
No. 13-12644-FDS, 2014 WL 298107, at *2 n.2 (D. Mass. Jan.
27, 2014) (denying motion to strike affidavit and finding
affiant “appear[ed] competent to testify about . . .
business records and . . . record-keeping methods based on
his asserted custodial responsibilities and personal
knowledge”). Accordingly, Hays's Motions to Strike
(dkt. nos. 53, 65) are DENIED.
the defendant has established without contradiction the
existence of a valid cardholder agreement, which states the
agreement to arbitrate in “clear and unmistakable
terms.” See Joule v. Simmons, 944 N.E.2d 143,
146 n.5 (Mass. 2011). Therefore, Jefferson Capital's
Motion to Compel Arbitration (dkt. no. 49) is GRANTED. This
case will be stayed and administratively closed while the
parties pursue arbitration. The parties shall notify the
Court when the arbitration has been concluded and indicate
whether either party seeks any further relief.
 As CB&T's assignee, Jefferson
Capital can rely on the original creditor's business
records and normal course of business to prove these facts.
See Hoefs v. CACV of Colo., LLC, 365 F.Supp.2d 69,
73-74 (D. Mass. 2005). The cardholder agreement attached as
Exhibit A-1 includes in its definition of
“Claims” those between the cardholder and
CB&T's “assigns.” (See Decl. of
Ryan, Ex. A-1 at 7 (dkt. no. 50-2).)
 I also note that the Court's
consideration of the defendant's supplemental submissions
does not prejudice the plaintiff. The plaintiff has had the
opportunity to fully brief two motions to strike and was
granted leave to file a sur-reply to ...