United States District Court, D. Minnesota
Amber Chavez, on behalf of herself and all others similarly situated, Plaintiff,
Get It Now, LLC d/b/a/ Home Choice, Defendant.
L. Vavreck, Esq., Gonko & Vavreck, PLLC; and Thomas J.
Lyons, Jr., Esq., Consumer Justice Center, P.A., counsel for
Cameron A. Lallier, Esq., and Thomas J. Lallier, Esq., Foley
& Mansfield, PLLP, counsel for Defendant.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Get It Now, LLC's
Motion to Compel Arbitration and Stay Action. (Doc. No. 5.)
Plaintiff Amber Chavez opposes Defendant's motion. (Doc.
No. 10.) For the reasons set forth below, Defendant's
motion is denied.
Complaint arises out of her purchase of a number of home
furnishings from Get It Now. (See generally Doc. No.
1 (“Compl.”); Doc. No. 7, Ex. A
(“Agreement”) at 14.) To finance the purchase,
Chavez obtained a line of credit from Get It Now in March
2015. (Compl. ¶ 6.) On April 20, 2015, Chavez and Get It
Now entered into a Retail Installment Sale Contract and
Security Agreement (the “Agreement”). (Agreement
at 14-21.) This Agreement also contained an Arbitration
Agreement (the “Arbitration Agreement”).
(Id. at 17-21.)
was unable to make timely payments on her account, and she
pursued a Chapter 7 bankruptcy. (Id. at ¶¶
7-8.) On June 26, 2015, Chavez initiated her bankruptcy case
in the District, Case No. 15-42275. (Id. ¶ 8.)
On September 29, 2015, Chavez obtained a discharge.
(Id. ¶ 11; see also Doc. No. 10 at 2
n.1.) Notices of the bankruptcy filing and resulting
discharge were mailed to Get It Now. (Compl. ¶¶
10-11.) Chavez did not sign a reaffirmation agreement with
Get It Now in connection with her bankruptcy. (Doc. No. 11
November 16, 2015, Get It Now initiated a lawsuit against
Chavez in Hennepin County Conciliation Court, Case No.
27-CO-15-7760, seeking to collect the discharged debt.
(Id. ¶¶ 12, 15-16.) Get It Now persuaded
Plaintiff to agree to repay the discharged debt in monthly
installments of $127. (Id. ¶ 17.) Chavez
thereafter made payments to Defendant totaling $1, 397.
(Id. ¶ 18.) On January 25, 2016, Chavez and Get
It Now entered into a new Retail Installment Sale Contract
and Security Agreement containing its own Arbitration
Agreement. (Agreement at 5-12.)
August 17, 2016, Chavez determined that her credit report
contained inaccurate information regarding her account with
Get It Now, namely that the account contained a balance that
was being repaid on a monthly basis rather than stating that
the balance had been discharged in Bankruptcy. (Compl.
¶¶ 19-20.) Chavez disputed this information to the
credit reporting agencies, and Get It Now responded by
asserting that Chavez continued to owe the debt.
(Id. ¶¶ 20-22.) Thus, the debt remained on
Chavez's credit report. (Id. ¶¶ 22-23,
5, 2017, Chavez filed the Complaint in the present action,
asserting the following claims on behalf of herself and a
putative class: (1) Violations of the Fair Credit Reporting
Act, 15 U.S.C. § 1681 (Count I); (2) Bankruptcy
Discharge Violation Under 11 U.S.C. § 524 (Count II);
(3) Malicious Prosecution (Count III); (4) Abuse of Process
(Count IV); and (5) Unjust Enrichment/Conversion (Count V).
(See Compl. at 6-7, 9-12.) Chavez seeks damages;
attorney fees and costs; injunctive relief directing
Defendant to desist collection efforts; and a finding of
contempt based on Get It Now's violation of the Discharge
Injunction. (See Compl. at Prayer for Relief.) Get
It Now seeks to compel arbitration pursuant to the terms of
the Agreement and to stay this action during the pendency of
the arbitration. (Doc. Nos. 5, 6.)
Now brings this motion pursuant to the Federal Arbitration
Act (“FAA”). The FAA provides that written
agreements to arbitrate “shall be valid, irrevocable,
and enforceable.” 9 U.S.C. § 2. Get It Now asks
the Court to stay the proceedings because the present dispute
is governed by a written arbitration agreement. In
determining whether to compel arbitration, the Court usually
must determine: (1) whether a valid agreement to arbitrate
exists between the parties; and (2) whether the specific
dispute is within the scope of that agreement. Pro Tech
Indus., Inc. v. URS Corp.,377 F.3d 868, 871 (8th Cir.
2004). But under the FAA, parties can agree to have an
arbitrator decide whether claims fall within the scope of the
agreement. See, e.g., Fallo v. High-Tech
Inst., 559 F.3d 874, 877 (8th Cir. 2009) (citing
First Options of Chi., Inc. v. Kaplan, 514 U.S. 938,