IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID MARCIEL & DEANNA

MARCIEL,

Plaintiffs,

v.

SPRINGLEAF FINANCIAL

SERVICES, INC.,

Defendant.

3:14-CV-00830-BR

AMENDED 

OPINION AND ORDER 

JOSHUA R. TRIGSTED

Trigsted Law Group, P.C.

5200 S.W. Meadows Rd

Suite 150

Lake Oswego, OR 97035

(503) 376-6774 

Attorney for Plaintiffs

MILES D. MONSON

Anderson & Monson, PC

Cascade Square

8625 S.W. Cascade Avenue

Suite 450

Beaverton, OR 97008

(503) 646-9230 

Attorneys for Defendant

1 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 1 of 18
BROWN, Judge.

This matter comes before the Court on Defendant’s Motion

(#7) to Compel Arbitration. For the reasons that follow, the

Court DENIES Defendant’s Motion.

BACKGROUND

On January 5, 2009, Plaintiffs David and Deanne Marciel

entered into a Personal Credit Line Account Agreement with lender

Household Finance Corporation II (HFC). The Agreement defined

“we, us, and our” as “the Lender” and “you” as “the Borrower(s).” 

Decl. of Dana Wassam, Ex. 1 at 1. The Agreement provided in

pertinent part that “[t]he terms of the Arbitration Rider signed

by you as part of your agreement are incorporated herein by this

reference.” Wassam Decl., Ex. 1 at 3. The Arbitration Rider

also signed by Plaintiffs on January 5, 2009, provides in

pertinent part:

By signing this Arbitration Rider, you agree that

either Lender or you may request that any claim,

dispute, or controversy (whether based upon

contract; tort, Intentional or otherwise;

constitution; statute; common law; or equity and

whether pre-existing, present, or future) . . .

arising from or relating to this Agreement or the

relationships which result from this Agreement,

including the validity or enforceability of this

arbitration clause . . . shall be resolved, upon

the election of you or us by binding arbitration

pursuant to this arbitration provision and the

applicable rules or procedures of the arbitration

administrator selected at the time the Claim is

filed. 

2 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 2 of 18
* * *

This Arbitration Rider is made pursuant to a

transaction involving interstate commerce, and

shall be governed by the Federal Arbitration Act,

9 U.S.C. Sections 1-16 (the "FAA").

Wassam Decl., Ex. 1 at 5-6.

On April 1, 2013, Springcastle American Funding Trust

purchased Plaintiffs’ Personal Credit Line Account from HFC.

At some point after the sale of Plaintiffs’ Personal Credit

Line Account and before September 1, 2013, Plaintiffs were

advised their Personal Credit Line Account had been sold to

Springcastle and that Springleaf Consumer Loan, Inc.,1

 was going

to become the servicer of their Account.

On September 1, 2013, Springleaf Consumer Loan became the

servicer of Plaintiffs’ Personal Credit Line Account.

On May 19, 2014, Plaintiffs filed an action in this Court

against Springleaf Financial Services alleging Defendant had

violated several provisions of the Fair Debt Collection Practices

Act (FDCPA), 15 U.S.C. § 1692a, et seq., in its efforts to

collect “a debt” from Plaintiffs.

On July 1, 2014, Defendant filed a Motion to Compel

Arbitration. The Court took Defendant’s Motion under advisement

on July 29, 2014, and concludes the record is sufficiently

1 Defendant and Springleaf Consumer Loan, Inc., are

affiliated entities. The parent entities of Defendant and

Springleaf Consumer Loan share the same ultimate corporate

parent: Springleaf Finance, Inc., who is not party in this case.

3 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 3 of 18
developed to resolve the Motion without oral argument.

STANDARDS

Congress enacted the Federal Arbitration Act (FAA), 

9 U.S.C. § 1, et seq., to "advance the federal policy favoring

arbitration agreements." Lowden v. T-Mobile USA, Inc., 512 F.3d

1213, 1217 (9th Cir. 2008). The FAA provides arbitration

agreements generally "shall be valid, irrevocable, and

enforceable." Id. See also 9 U.S.C. § 2. The court must

"rigorously enforce" arbitration agreements and "must order

arbitration if it is satisfied that the making of the agreement

for arbitration is not in issue." Simula, Inc. v. Autoliv, Inc.,

175 F.3d 716, 719 (9th Cir. 1999)(citing Dean Witter Reynolds v.

Byrd, 470 U.S. 213, 218 (1985)). Accordingly, the court's task

is to "determine (1) whether a valid agreement to arbitrate

exists, and, if it does, (2) whether the agreement encompasses

the dispute at issue." Lowden, 512 F.3d at 1217 (citation

omitted). 

If the court determines there are unresolved issues of fact

as to the formation of the arbitration agreement, the court must

"proceed summarily" to a jury trial on the merits. 9 U.S.C. § 4. 

See also Sanford v. Memberworks, Inc., 483 F.3d 956, 962 (9th

Cir. 2007). If the court determines the matter is subject to

arbitration, it may either stay the matter pending arbitration or

4 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 4 of 18
dismiss the matter. EEOC v. Waffle House, Inc., 534 U.S. 279,

289 (2002). See also 9 U.S.C. §§ 3, 4.

DISCUSSION

Defendant moves to compel arbitration of this matter on the

ground that the Arbitration Rider incorporated into Plaintiffs’

Personal Credit Line Account Agreement requires arbitration of

Plaintiffs’ claims under the FAA. Specifically, Defendant

asserts Plaintiffs’ FDCPA claims “aris[e] from or relat[e] to

[Plaintiffs’ Personal Credit Line Account] Agreement or the

relationships which result from th[at] Agreement.” According to

Defendant, therefore, Plaintiffs’ claims must be arbitrated.

Plaintiffs, however, assert the Arbitration Rider does not

apply to Plaintiffs’ claims because Plaintiffs challenge the

actions of Springleaf Consumer Loan who was not a party to or the

assignee of Plaintiffs’ Personal Credit Line Account Agreement

that contains the Arbitration Rider. Although it is not entirely

clear, it appears Plaintiffs rely on the provision of the

Arbitration Rider that specifies “either Lender or you may

request” arbitration of “any claim, dispute, or controversy.” As

noted, the Lender is described in the Personal Credit Line

Account Agreement as HFC. Because HFC sold Plaintiffs’ Personal

Credit Line Account to Springcastle, Springcastle is now the

“lender” under the terms of Plaintiffs’ Personal Credit Line

5 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 5 of 18
Account Agreement. The Court notes, however, that Springcastle

is not a party to this action and has not requested Plaintiffs’

claims to be arbitrated. 

In its Reply Defendant asserts once again that Plaintiffs’

claims in this matter arise from or relate to Plaintiffs’

Personal Credit Line Account, and, therefore, this matter must be

arbitrated. 

I. The plain language of Plaintiffs’ Personal Credit Line

Account Agreement and the Arbitration Rider do not provide

Defendant with standing to invoke arbitration.

Neither party cites any law nor provides any analysis

related to whether third parties may enforce arbitration clauses

in agreements to which they not signatories nor could the Court

find any Ninth Circuit cases that address this issue. Courts

outside of the Ninth Circuit that have addressed this issue,

however, have concluded arbitration agreements like the one at

issue here do not provide standing for nonsignatory third parties

to enforce the arbitration agreement. For example, in Lawson v.

Life of the South Insurance Company the plaintiffs purchased an

automobile with a loan agreement through a car dealership, which

subsequently assigned the loan to Chase Manhattan Bank. The loan

agreement contained an arbitration clause that provided in

pertinent part:

A Dispute means any controversy or claim . . .

arising from or relating to [the loan agreement]. 

The term Dispute includes, but is not limited to,

the negotiation or breach of [the loan agreement],

6 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 6 of 18
or any aspect of the sale of the vehicle involving

any Buyer, Co–Buyer, Seller or assignee, agent,

employee, surety bonding company or insurer of any

of these persons. . . . If any Dispute arises,

either you or we may choose to have the Dispute

resolved by binding arbitration.

648 F.3d 1166, 1168 (11th Cir. 2011)(emphasis in original). The

loan agreement defined “you” as “the buyer” (the plaintiffs),

“we” and “the creditor named above” (the car dealership), and

“after assignment, the creditor’s assignee” (Chase Manhattan). 

The loan agreement gave the plaintiffs the option to purchase

credit life insurance, which the plaintiffs did by checking a box

on the loan agreement. In addition to checking the box on the

loan agreement, the plaintiffs also entered into a separate

credit life-insurance policy agreement with Life of the South. 

The credit life-insurance policy agreement did not include an

arbitration clause. The agreement provided, among other things,

that the plaintiffs would be eligible for a refund of some of

their premium from Life of the South if they paid off their car

loan early. When the plaintiffs paid off their car loan early,

however, Life of the South did not refund any of the plaintiffs’

premium, and the plaintiffs brought an action against Life of the

South seeking a refund of the premium. In turn, Life of the

South moved to compel arbitration of the plaintiffs’ claim based

on the arbitration clause in the loan agreement. The plaintiffs

opposed arbitration on the ground that Life of the South was not

a party to the loan agreement and, therefore, lacked standing to

7 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 7 of 18
enforce the arbitration clause. The Eleventh Circuit agreed with

the plaintiffs:

The scope of the arbitration clause in the loan

agreement between the car dealership and the

[plaintiffs] is broad, even expressly referring to

disputes involving the [plaintiffs’] “insurer,”

but the right to enforce that clause is clearly

limited to the [plaintiffs], the car dealership,

Chase Manhattan, and any assignees of the car

dealership or Chase Manhattan. (Life of the South

does not contend that it is an assignee.) The

arbitration clause in the loan agreement is not

mandatory; it does not require that every dispute

falling within its scope be arbitrated. Instead,

the clause provides that “[i]f any Dispute arises,

either you or we may choose to have the Dispute

resolved by binding arbitration.” On its face,

the loan agreement grants only “you” (defined as

the [plaintiffs]) and “we” (defined as the car

dealership, Chase Manhattan, and their assignees)

the right to elect to arbitrate. Life of the

South is neither a “you” nor a “we.” Instead, in

pronoun terms, Life of the South is an unmentioned

“it,” and the face of the arbitration clause does

not show an intent to give “it” the right to

compel arbitration. The loan agreement does not

show, on its face or elsewhere, an intent to allow

anyone other than the [plaintiffs], the car

dealership, Chase Manhattan, and the assignees of

the dealership or Chase Manhattan to compel

arbitration of a dispute, and Life of the South is

none of those.

Id. at 1171-72.

Similarly in Mims v. Global Credit and Collection

Corporation the plaintiff entered into a customer agreement with

Capital One when the plaintiff opened a revolving credit account. 

The agreement contained an arbitration clause: “You and we agree

that either you or we may, at either party's sole election,

require that any Claim (as defined below) be resolved by binding

8 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 8 of 18
arbitration.” 803 F. Supp. 2d 1349, 1352 (S.D. Fla. 2011). The

agreement defined claim as

any claim, controversy, or dispute of any kind or

nature between you and us.

A. This definition includes, without limitation,

any Claim that in any way arises from or relates

to:

• the Agreement and any of its terms.

• this Arbitration Provision.

• any billing or collections matters

relating to your account.

• any other matters relating to your

account or your relationship with us.

Id. Capital One sold and assigned the plaintiff’s account to

Equable Ascent Financial LLC (EAF). EAF ultimately retained the

defendant Global Credit and Collection Corporation to collect the

unpaid balance on the plaintiff’s revolving credit account. The

plaintiff, in turn, filed an action against the defendant

alleging it violated the FDCPA when it left numerous telephone

messages on the plaintiff’s voicemail without proper FDCPA

disclosures in an attempt to collect the debt. The defendant

moved to compel arbitration pursuant to the plaintiff’s customer

agreement with Capital One (transferred to EAF). The court

denied the defendant’s motion to compel arbitration on the ground

that the customer agreement specifically limited the arbitration

provision to disputes between the plaintiff and “us,” which was

defined

9 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 9 of 18
as meaning Capital One Bank and its successors,

assigns, agents, and/or authorized

representatives.” (Agreement 6)(emphasis added). 

[The defendant] is neither an assign of Capital

One nor an authorized agent of Capital One, [and]

even if it was an authorized representative of

EAF, the Court does not find the parties intended

“us” to include an authorized representative of an

assign of Capital One.

Id. at 1356 (emphasis in original). The court also noted:

[T]he instant case is distinguishable from cases

where the relevant arbitration provisions applied

to all disputes arising out of the agreements. 

Courts dealing with those sorts of broad

arbitration provisions have consistently held that

in disputes between a signatory to the agreement

and a non-signatory, the arbitration clause may be

invoked as long as the dispute arises from the

agreement. See Blinco v. Green Tree Servicing

LLC, 400 F.3d 1308, 1312 (11th Cir. 2005)

(concluding that provision including claims

arising from “the relationship . . . result[ing]

from the [agreement],” was broad enough to allow

non-signatory third party to invoke it against

plaintiff); Sherer v. Green Tree Servicing LLC,

548 F.3d 379, 383 (5th Cir. 2008)(holding that

loan agreement including claims arising from “the

relationships . . . result[ing] from th[e]

[a]greement,” was broad enough to include

plaintiff's FDCPA claims against non-signatory

debt collector). In those cases, unlike the

present case, the agreements did not expressly and

specifically limit the claims subject to

arbitration to those between the debtor and a

defined list of persons affiliated with the

creditor. In contrast, here, the arbitration

provision is narrower in scope. Rather than apply

to all disputes arising out of the Agreement, the

provision is explicitly limited to those disputes

between Plaintiff and the enumerated individuals. 

Plaintiff thus cannot fairly be considered to have

consented to arbitration with other unenumerated

entities.

Id. at 1357.

10 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 10 of 18
In Fox v. Nationwide Credit Incorporated the plaintiff

opened a consumer credit account through Monogram Credit Card

Bank of Georgia pursuant to a cardholder agreement that contained

an unspecified arbitration agreement. No. 09–cv–7111, 2010 WL

3420172, at *1 (N.D. Ill. Aug. 25, 2010). Monogram later merged

with GE Capital Consumer Card to form GE Money Bank. GE Money

then updated the terms of the plaintiff’s cardholder agreement

including the arbitration clause, which then provided in

pertinent part:

[U]pon the election of either party, any legal

dispute between the parties will be resolved by

binding arbitration. This provision replaces any

existing arbitration provision between you and Us.

Definitions: As used in this provision, “We,”

“Us,” “Our,” and similar terms mean . . . GE Money

Bank and all of its respective parents, wholly or

majority owned subsidiaries, predecessors,

successors, assigns, employees, officers and

directors (collectively, the “Bank”).

* * *

“Claim” means any dispute between you and Us that

arises from or relates to your credit card

account, the relationships that result from the

account, the Agreement or any prior agreement or

credit card account, including the enforceability

or scope of this Provision.

If you or We select to arbitrate a Claim, neither

you nor We will have the right: (1) to have a

court or a jury decide the Claim.

Id., at *3. At some point the plaintiff’s consumer credit

account was referred to the defendant for collection on behalf of

GE Money. The plaintiff filed an action against the defendant in

11 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 11 of 18
which the plaintiff asserted the defendant violated various

provisions of the FDCPA during its collection efforts. The

defendant moved to arbitrate the matter pursuant to the

arbitration clause in the plaintiff’s cardholder agreement. The

plaintiff opposed arbitration on the ground that “pursuant to the

express language of the arbitration agreement, [the defendant] is

not a party thereto and, thus, cannot exercise rights conferred

by the arbitration clause.” Id. The defendant conceded the

cardholder agreement “plainly specifie[d] the express parties to

that agreement: ‘We,’ ‘Us,’ ‘Our,’ and similar terms [to] mean

GE Money Bank and all of its respective parents, wholly or

majority owned subsidiaries, predecessors, successors, assigns,

employees, officers and directors.” Id. The defendant did not

assert its right to invoke the arbitration clause arose because

it fell within any of the categories of entities included in the

definition. Instead the defendant asserted its ability to invoke

the arbitration clause arose from the definition of “claims”

under the agreement, “which broadly defines the disputes that are

subject to arbitration.” Specifically, the defendant asserted it

should be allowed to enforce the agreement “because Plaintiff's

claims arose directly from [the defendant’s] conduct as a debt

collector for a GE Money account (arguably a dispute that ‘arises

from or relates to . . . the relationships that result from [the

plaintiff's] account’).” Id. The court found the defendant’s

12 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 12 of 18
argument to be unpersuasive on the ground that it

focuses on the definition of “Claims” without

regard for the definition of “Us,” which plainly

does not include third-party debt collectors, such

as [the defendant]. The definition of “Claims”

incorporates the definition of “Us,” and the

arbitration provision applies to the resolution of

legal claims between the cardholder and those

entities within the definition of “Us” without

regard for the definition of “Claims.” Thus, the

definition of “Claims” only determines the types

of disputes that can be resolved through

arbitration and does not expand the scope of the

parties subject to the arbitration clause; the

definition of “Us” determines the parties entitled

to enforce the provision. [The defendant] is not

an entity included in that definition.

Id. The court distinguished the cases on which the defendant

relied noting in those cases 

there was no mention of a provision in which the

claims subject to arbitration were expressly and

specifically limited to those between the debtor

and a defined list of persons and entities

affiliated with the creditor, as exists in the

arbitration clause here. The court[s] simply

noted that the arbitration clause[s] covering any

dispute arising out of the agreement w[ere] broad

enough to include the plaintiff's claims against

[the defendants].

Id., at *4. Accordingly, the court denied the defendant’s motion

to arbitrate concluding, among other things, that under the plain

language of the arbitration clause in the cardholder agreement,

the defendant could not invoke the arbitration clause. 

This Court finds the reasoning of Lawson, Mims, and Fox to

be persuasive. As in those cases, the Personal Credit Line

Account Agreement and Arbitration Rider here specifically define

13 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 13 of 18
and limit the class of entities and individuals who may invoke

the arbitration clause. As in Lawson, Mims, and Fox the

arbitration clause is not mandatory, but arbitration may be

elected by any of the individuals or entities identified in the

Personal Credit Line Account Agreement and Arbitration Rider. 

Neither Plaintiffs’ Personal Credit Line Account Agreement nor

the Arbitration Rider includes the defendant or any loan servicer

in the definition of “lender” or “you.” The Court, therefore,

concludes Defendant is not an entity who may invoke the

Arbitration Rider.

II. Defendant is, at best, an incidental third-party beneficiary

of the Personal Credit Account Agreement.

Although Defendant does not specifically assert it may

invoke the Arbitration Rider as a third-party beneficiary, the

Court finds such an argument to be unpersuasive under these

circumstances to the extent that Defendant may have intended to

raise it. 

The Court notes the Supreme Court has held a litigant may

enforce an arbitration agreement under the FAA when traditional

principles of state law such as third-party-beneficiary theories

allow a contract to be enforced by nonparties to the contract.

Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 630-31 (2009). 

Oregon law recognizes three categories of third-party

beneficiaries: donee beneficiaries, creditor beneficiaries, and

incidental beneficiaries. Sisters of St. Joseph of Peace,

14 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 14 of 18
Health, and Hosp. Servs. v. Russell, 318 Or. 370, 374-75 (1994). 

Only “the first two categories of beneficiaries are entitled to

enforce directly contractual promises intended to be for their

benefit, even though they are strangers to the contract. 

Incidental beneficiaries are not so entitled.” Id. at 375. “In

determining whether a party is more than an incidental

beneficiary, . . . Oregon cases have focused on the intent of the

promisee and the promisor.” Lord v. Parisi, 172 Or. App. 271,

278 (2001). If there is not any intent by the promisee and

promisor to create a benefit for a third party, any benefit

garnered by the third party is merely incidental and does not

entitle the third party to enforce any provision of the contract. 

Id.

The courts in Lawson, Mims, and Fox analyzed the issue under

state laws similar to Oregon’s third-party beneficiary laws and

rejected the defendants’ assertions that they were third-party

beneficiaries entitled to enforce the arbitration agreements. 

For example, in Fox the court concluded the defendant failed to 

show[] where Plaintiff, as one of the contracting

parties, intended to confer any separate and 

distinct benefit on [the defendant] or other

third-party debt collectors. Rather, the rights

created by the arbitration provision relied upon

by [the defendant] — broad as they may be with

regard to the types of claims that must be

submitted to arbitration — were clearly intended

to be limited to a specific list of persons and

entities that had a right to enforce it.

Fox, 2010 WL 3420172, at *5 (citation omitted).

15 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 15 of 18
Similarly, in Lawson the court noted even though the

language of the arbitration clause was broad, it limited the

power to invoke the clause to an identified set of entities and

individuals. The court concluded the defendant was not a thirdparty beneficiary of the loan agreement and, therefore, was not

able to enforce the arbitration provision because “[t]he loan

agreement does not show, on its face or elsewhere, an intent to

allow anyone other than the [plaintiffs], the car dealership,

Chase Manhattan, and the assignees of the dealership or Chase

Manhattan to compel arbitration of a dispute, and [the defendant]

is none of those.” 648 F.3d at 1172.

Here, as in Lawson, Mims, and Fox, neither the Personal

Credit Line Account Agreement nor the Arbitration Rider reflect

any intent by the lender or Plaintiffs to permit the servicer of

the account to invoke the arbitration provision, and the Personal

Credit Line Account Agreement specifically defines “we, us, and 

our” as the Lender and “you” as Plaintiffs. As noted, the

Arbitration Rider specifies the “Lender or you may request”

arbitration. 

The Court, therefore, concludes on this record that

Defendant is, at best, an incidental third-party beneficiary,

and, as such, it does not have the right to invoke the

Arbitration Rider.

16 - AMENDED OPINION AND ORDER

Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 16 of 18
III. The June 2013 Loan Agreement is not the debt that Plaintiffs

challenge in this action.

Defendant asserts it is entitled to arbitration of this

matter because a June 11, 2013, Loan Agreement between Defendant

and Plaintiffs contains an arbitration provision. As noted,

however, Plaintiffs make clear in their Response that they are

alleging Defendant violated various provisions of the FDCPA in

attempting to collect a debt that did not arise from the 

June 11, 2013, Loan Agreement. Specifically, Plaintiffs assert

the debt underlying their claims that Defendants violated the

FDCPA is the debt arising from the January 2009 Personal Credit

Line Account Agreement. 

On this record and in reliance on Plaintiffs’ representations, the Court concludes the arbitration provision in the

June 2013 Loan Agreement is irrelevant and does not provide a

basis for this Court to grant Defendant’s Motion to Compel

Arbitration. 

CONCLUSION

For these reasons, the Court DENIES Defendant’s Motion (#7) 

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Case 3:14-cv-00830-BR Document 27 Filed 11/17/14 Page 17 of 18
to Compel Arbitration.

IT IS SO ORDERED.

DATED this 17th day of November, 2014.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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