Credit Card Company That Failed To Provide Evidence Other Than Arguments Of Counsel At Summary Hearing To Determine Existence Of Agreement To Arbitrate Cannot Compel Arbitration With Consumer
01/28/08
Credit Card company initiated arbitration against consumer. Consumer filed state court action to enjoin arbitration. At summary hearing on existence of agreement to arbitrate, credit card company produced no evidence of agreement to arbitrate but instead relied upon arguments of counsel and production of a copy of amendment to credit card agreement, which credit card company claimed was mailed, but consumer did not admit receiving. Appeals court affirmed state court ruling staying arbitration. Motions to stay or compel arbitration are tried in summary proceedings. Summary proceedings are those conducted "without the usual formalities and without a jury. In summary proceedings where parties dispute the facts, an evidentiary hearing must be held and the parties may present their evidence, in the form of documents, affidavits, deposition transcripts and other materials to resolve the factual dispute. After a party challenges the validity of an agreement to arbitrate by alleging that (s)he was never a party to an arbitration agreement, the court has to determine the issue of the existence of an agreement to arbitrate based upon the evidence before it. Creech v. MBNA America Bank, N.A., Docket No. 28453 (Mo.App.S.D. 01/28/2008)
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