County Superior Court No. KC 13-780 Allen P. Rubine Associate
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
William P. Robinson III Associate Justice.
defendant, Brandon Potter, appeals from a grant of summary
judgment in favor of the plaintiff, CACH, LLC (CACH), in this
credit card debt collection action. He contends on appeal
that the hearing justice erred in granting CACH's motion
for summary judgment. He further posits that the hearing
justice committed error in denying his motion to compel
arbitration and his motion to amend his answer. This case
came before the Supreme Court for oral argument on January
25, 2017 pursuant to an order directing the parties to appear
and show cause why the issues raised in this appeal should
not be summarily decided. After a close review of the record
and careful consideration of the parties' arguments (both
written and oral), we are satisfied that cause has not been
shown and that this appeal may be decided at this time.
reasons set forth below, we affirm the judgment of the
Facts and Travel
defendant is in debt in the amount of $10, 288.04, plus
statutory interest and costs, under a credit card account
which he opened and maintained with Bank of America, N.A. At
some point, Bank of America assigned the right to collect the
debt to CACH. On July 22, 2013, CACH filed a complaint in
Superior Court whereby it sought to recover the
above-referenced amount. On May 7, 2014, Mr. Potter
eventually filed an answer to the complaint. Notably, that
answer did not include a demand for arbitration.
over a year later, on September 28, 2015, CACH filed a motion
for summary judgment. Thereafter, on December 8, 2015, Mr.
Potter filed an objection to CACH's motion as well as a
motion to compel arbitration and to dismiss the case (or, in
the alternative, stay proceedings) pursuant to the
arbitration provision of the Cardholder Agreement entered
into between Mr. Potter and Bank of America. On January 11,
2016, a hearing was held on CACH's motion for summary
judgment. At that hearing, the hearing justice denied Mr.
Potter's motion to compel arbitration because he had
failed to raise a right to arbitrate as an affirmative
defense in his answer. Then, after denying Mr. Potter's
request for a continuance, the hearing justice proceeded to
consider CACH's summary judgment motion and Mr.
Potter's objection thereto. At the conclusion of the
hearing, the justice granted CACH's motion for summary
January 14, 2016, Mr. Potter filed a motion to amend his
answer so as to include a demand for arbitration as an
affirmative defense, and he also filed a motion to reconsider
and vacate the Superior Court's grant of CACH's
motion for summary judgment. On January 25, 2016, following
another hearing, the hearing justice denied Mr. Potter's
motions. Orders granting plaintiff's motion for summary
judgment and directing the entry of judgment in
plaintiff's favor entered the same day. Thereafter, Mr.
Potter filed a notice of appeal.
Mr. Potter's Motion to Compel Arbitration
Potter contends that the hearing justice erred in denying his
motion to compel arbitration and dismiss the case. He posits
that the Superior Court lacked subject matter jurisdiction
over the action as a result of the arbitration provision in
the Cardholder Agreement. As evidence of his intent to
arbitrate the dispute, he directs this Court's attention
to the fact that he did not "participate in any
discovery, file a counterclaim, submit interrogatives
[sic], or challenge the plaintiff's standing at
any point prior to filing for arbitration * * * ." He
adds that he is seeking to enforce the arbitration clause in
the Cardholder Agreement in order to obtain relief for
violations of the federal Fair Debt Collection Practices Act
and the federal Fair Credit Reporting Act.
denying Mr. Potter's motion to compel arbitration, the
hearing justice stated that an assertion that a dispute is
subject to arbitration must be affirmatively pled in an
answer or a defendant would run the risk of having it deemed
waived; he held that Mr. Potter had failed to raise a demand
for arbitration in his answer and that such a demand had,
accordingly, been waived. After a thorough review of the
record and Mr. Potter's arguments on appeal, we are in
complete agreement with the hearing justice.
we note that our review of a trial court's denial of a
motion to compel arbitration is conducted de novo.
DeFontes v. ...