In James v. Portfolio Recovery Associates, LLC, 2015 WL 720195 (N.D.Cal. 2015), Judge Whyte found that a debt collector sued in an FDCPA class action could enforce the arbitration clause to send the case to arbitration despite the fact that the debt collector already had sued the the debtor in state court on the debt.
James brought this class action asserting claims against PRA under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). . . . James was issued a cardholder agreement for her credit card account, which provided written terms and conditions, including the arbitration agreement at issue here. . . . On May 27, 2014 PRA filed a lawsuit against James in the Superior Court of California, Santa Clara County captioned Portfolio Recovery Associates, LLC v. Zoe L. James, Case No. 114–CV–265849, in which PRA seeks to collect the defaulted consumer debt from James. On or about August 20, 2014, Defendant sent a document titled Declaration of Plaintiff in Lieu of Personal Testimony at Trial (CCP § 98) directly to James. Dkt. No. 1, at ¶ 12. James alleges that Defendant’s Declaration of Plaintiff in Lieu of Personal Testimony at Trial (CCP § 98) included deceptive misleading misrepresentations in violation of 15 U.S.C. §§ 1692e, 1692e(5), 1692e(10), and 692f. . . .On August 27, 2014, James filed her Class Action Complaint against Defendant. Defendant answered on October 2, 2014 and on January 8, 2015, moved to compel arbitration of James’ claims. . . .James also argues . . . that PRA constructively waived its right to arbitrate James’ FDCPA claims by bringing a separate suit in state court. Dkt. No. 22, at 12. This argument is unavailing. To waive the right to arbitrate, a party must have knowledge of an existing right to compel arbitration, act in a manner inconsistent with that existing right, and the opposing party must suffer prejudice therefrom. See Fisher v. A.G. Becker Paribas Inc., 791 F.2d 693, 694 (9th Cir.1986). Here, there was no waiver as PRA did not have an existing right to compel arbitration of the FDCPA claims against PRA because James had yet to file the instant suit and assert them. As another court has held under similar circumstances, “[b]ringing a lawsuit for debt collection may result in defendants’ waiver of arbitration for that case, but it does not bar plaintiffs from compelling arbitration in that action or bar defendants from invoking arbitration in all future separate causes of action that plaintiffs assert against them.” Cage v. CACH, LLC, 2014 WL 2170431, at *1 (W.D.Wash. May 22, 2014); see also Schwartz v. CACH, LLC, 2014 WL 298107, at *3 (D.Mass. Jan. 27, 2014). Accordingly, the court finds that PRA has not waived its right to arbitrate the claims at issue in this case.