In Mims v. Global Credit and Collection Corp., — F.Supp.2d —-, 2011 WL 3586056 (S.D.Fla. 2011), Judge Altonaga held that a debt collector could not avail itself of the Arbitration clause in a credit card agreement between the debtor and the original creditor.
This case arises from Global’s attempt to collect a debt allegedly owed by Plaintiff under a credit agreement between Plaintiff and Capital One Bank (U.S.A.), N.A. (“Capital One”). On October 22, 2010, Plaintiff, Marcus D. Mims, filed a Complaint [ECF No. 1] against Global alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) and the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq . (“TCPA”). In particular, Plaintiff alleges Global left numerous telephone messages on Plaintiff’s voicemail in which Global “failed to inform Plaintiff … that the commu-nication was from a debt collector[,] failed to disclose the purpose of Defendant’s messages and failed to disclose Defendant’s name.” (Compl.¶¶ 9–12). Global now seeks to compel arbitration of this dispute pursuant to an arbitration provision contained in Plaintiff’s Customer Agreement (“Agreement”) [ECF No. 35–1] with Capital One. (See Mot. 1).
The Court found the Arbitration Clause did not protect the debt collector against the FDPCA and TCPA claims.
[T]he Court does not find the arbitration provision applies to this dispute. Admittedly, “it is well-settled that a nonparty can enforce an arbitration agreement if the language of the agreement is broad enough to permit the non-party to invoke it.” Bolanos v. First Investors Servic-ing Corp ., No. 10–23365–CIV, 2010 WL 4457347, at *2 (S.D.Fla. Oct. 29, 2010) (citing Triple I: Int’l Inv., Inc. v. Fielding, 290 F. App’x. 229, 232 (11th Cir.2008) (“[A] nonparty sometimes can enforce an arbitration agreement entered by others.”)). In particular, the Eleventh Circuit has recognized that a non-signatory to a contract may invoke an arbitration clause therein in three limited circumstances: (1) under a theory of equitable estoppel, (2) under agency or related principles, or (3) where the non-signatory is an intended third-party beneficiary of the contract. See Liles v. Ginn–La W. End, Ltd., 631 F.3d 1242, 1256 (11th Cir.2011) (citation omitted). . . . .In sum, the Agreement contains nothing to suggest that Capital One and Plaintiff intended to benefit Global, much less that the arbitration clause was included for Global’s primary and direct benefit. Accordingly, Global’s argument on this basis fails. See Peters, 402 F. App’x at 451 (affirming denial of motion to compel arbitration where there was no indication the parties to an agreement intended to benefit the third party or included an arbitration clause for the third party’s primary and direct benefit).
Nor did the Court allow a claim of estoppel to proceed on which the Petition might be granted.
Here, Plaintiff’s claims are not based on the terms of the Agreement. Plaintiff alleges only that Global violated the FDCPA and the TCPA by leaving messages without identifying itself and without indicating the calls were being made in an effort to collect a debt. Although the claims presume the existence of the Agreement, they do so purely for the purpose of noting there is an underlying debt. As such, the claims are not intertwined with the Agreement between Plaintiff and Capital One. Nor are the claims based on any substantially inter-dependent and concerted misconduct by Global and Capital One. Therefore, it is not appropriate to apply the doctrine of equitable estoppel to compel arbitration in this case.