A plantiff's lawyers are seeking to overturn an Alabama state court decision upholding the right of lenders to add mandatory arbitration agreements to loan contracts, even if the credit already has been extended.
Lawyers for Gloria Perry, a Beneficial National Bank credit card customer, filed a notice Friday asking Judge Howard Bryan of the Circuit Court of Macon County to reverse his decision.
In his May 18 ruling the judge said Ms. Perry may not pursue a class action against Beneficial National Bank because the lender amended her loan agreement to require all disputes to be resolved in arbitration.
The judge rejected arguments that the arbitration clause should be voided because Ms. Perry was not informed of the change to her loan agreement. He ruled that Beneficial, which said it included the change in an insert enclosed with her monthly statement, properly followed the procedures included in the loan agreement for amending the terms of the deal.
The judge also rejected Ms. Perry's efforts to void the arbitration agreement by filing a class action. He said that the arbitration requirement means that Ms. Perry is not part of the class because her case is in arbitration. "Consequently, that person could not adequately represent the class," he said.
Finally, Judge Bryan said an Alabama law barring the use of arbitration agreements is not enforceable because Beneficial is based in Delaware. That means the transaction triggers the Federal Arbitration Act, which permits these agreements in deals involving interstate commerce.
"This is an important decision," said Alan S. Kaplinsky, a partner at the Philadelphia law firm Ballard, Spahr, Andrews & Ingersoll, who represented Beneficial in the case. "It is one of the few cases out there sanctioning the ability of a bank to implement an arbitration agreement through a change in terms notice related to credit card accounts."
Ms. Perry's lawyer, Garve Ivey Jr., a partner at the Jasper, Ala., law firm King, Ivey & Warren, said the arbitration agreement should be voided because it only requires the consumer-and not Beneficial-to arbitrate all disputes. That violates an Alabama law requiring both parties to have the same legal recourse for resolving disputes, he said. Mr. Ivey said he would appeal to the state Supreme Court if the judge does not reverse his ruling, which he said deprives consumers of their right to resolve disputes in court.
Still, Mr. Kaplinsky said he is confident the decision will stand. "I would have been surprised if they had thrown in the towel," he said. "Usually plaintiffs attorneys do not accept losses willingly."