# Vitrano v. N.A.R., Inc.

> District Court, E.D. New York · March 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10303965

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303965

## How later opinions describe it (automated extraction)

- finding that when Congress restricts the use of arbitration, it does so with clarity

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JULIE VITRANO, individually and on
behalf of all others similarly
situated,
MEMORANDUM & ORDER
Plaintiff,
18-CV-06754(KAM)(RLM)
-against-

N.A.R., INC.,

Defendant.
----------------------------------X
MATSUMOTO, United States District Judge:
Pending before the court is defendant’s motion to
compel arbitration and strike plaintiff’s class action.
Plaintiff Julie Ann Vitrano (“plaintiff”) brings this class
action against defendant N.A.R., Inc. (“defendant” or “NAR”)
alleging a violation of the Fair Debt Collection Practices Act,
(“FDCPA”), 15 U.S.C. § 1692, et seq. (ECF No. 1, Complaint
(“Compl.”).) NAR moves for summary judgment to compel
arbitration and stay proceedings in this court. Plaintiff is
the debtor under a consumer finance contract. That contract,
which contains an arbitration clause, was purportedly assigned
to NAR for the purpose of collecting plaintiff’s debt. At its
core, this dispute turns on whether the assignment of rights to
NAR also included the right to compel arbitration of plaintiff’s
claim. For the reasons set forth below, the court finds that
NAR was assigned the right to compel arbitration of plaintiff’s
FDCPA claim, and accordingly, defendant’s motion to compel
arbitration, and strike plaintiff’s class action claims, is
granted, and this case is hereby stayed.
BACKGROUND
The pertinent facts, which by and large are not
disputed, are set forth below.

I. The Lease
On or about October 13, 2016, plaintiff executed a
Rental Purchase Agreement (“Lease”) with Crest Financial
Services, LLC (“Crest”). (ECF No. 16-2, Lease.) Plaintiff, as
lessee, rented certain articles of furniture from Crest, subject
to a fixed schedule of payments, with an option to purchase the
furniture contingent on full compliance with the Lease’s terms.
(Lease § 2.)
The Lease conspicuously alerts the plaintiff-lessee to
an arbitration provision:
THIS LEASE CONTAINS AN ARBITRATION PROVISION (SEE
§15). UNLESS YOU PROMPTLY REJECT THE ARBITRATION
PROVISION (SEE §15(a)), THE ARBITRATION PROVISION WILL
HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS IN THE EVENT
OF A DISPUTE, INCLUDING YOUR RIGHT TO BRING OR
PARTICIPATE IN A CLASS ACTION PROCEEDING.

(Id. at ECF p. 2 of 9.) Directly below, the Lease defines
certain key pronouns used throughout the agreement:
In this Lease, “you” and “your” mean the person(s)
signing this Lease as Lessee, and “we,” “our,” and
“us” mean [Crest] and its successors and assigns.
(Id. (emphasis added).) The Lease further provides that, by
signing the contract, plaintiff “agree[s] to all its terms,
including the . . . ARBTIRATION PROVISION (§ 15).” (Id.)
This dispute centers on section 15 of the Lease, the
arbitration clause (“Arbitration Clause”). The Arbitration
Clause provides that, barring plaintiff’s rejection or a

conflict with applicable law, “you and we agree that either
party may elect to arbitrate or require arbitration of any Claim
under the Arbitration [Clause].” (Id. § 15(a)(i).) The Lease
afforded plaintiff a 30-day window in which to reject the
Arbitration Clause. (Id. § 15(a)(ii).) Plaintiff did not
reject the Arbitration Clause.
The Arbitration Clause incorporates a more expansive
definition of “we,” “us,” and “our” than elsewhere in the Lease.
Specifically, the terms “we,” “us,” and “our” include “Related
Parties,” which encompasses Crest’s corporate parents,
subsidiaries, and affiliates, as well as “third parties that you

bring a Claim against at the same time you bring a Claim against
us or any other Related Party . . . .” (Id. § 15(b)(i).) Claim
is also broadly defined as:
any claim, dispute or controversy between you and us
(including any Related Party) that arises from or
relates in any way to this Lease or the Property
(including any amendment, modification or extension of
this Lease); any prior lease between you end [sic] us,
and/or the property subject to such prior lease; any
of our marketing, advertising, solicitations and
conduct relating to this Lease, the Property and/or a
prior lease and related property; our collection of
any amounts you owe; or our disclosure of or failure
to protect any information about you.

(Id. § 15(b)(ii).) The Lease makes clear that “‘Claim’ is to be
given the broadest reasonable meaning and includes claims of
every kind and nature,” and “includes disputes that seek relief
of any type . . . .” (Id.)
Finally, the Lease explicitly states in capital
letters that either party’s election of arbitration nullifies
plaintiff’s right to seek classwide relief in court or in
arbitration:
(f) No Class Actions or Similar Proceedings; Special
Features of Arbitration. IF YOU OR WE ELECT TO
ARBITRATE A CLAIM, NEITHER YOU NOR WE WILL HAVE THE
RIGHT TO: (i) HAVE A COURT OR JURY DECIDE THE CLAIM; .
. . (iii) PARTICIPATE IN A CLASS ACTION IN COURT OR IN
ARBRITRATION, EITHER AS A CLASS REPRESENTATIVE, CLASS
MEMBER OR CLASS OPPONENT . . . .

(Id. § 15(f).) The Arbitration Clause also included a
stipulation that the Lease involves interstate commerce and that
the Arbitration Clause is governed by the Federal Arbitration
Act (“FAA”), 9 U.S.C. § 1, et seq. (Id. § 15(i).)
II. Assignment Agreement
On or about January 18, 2017, Crest entered into an
agreement with NAR to assign past due accounts to NAR for
collection (“Assignment Agreement”). (ECF No 16-1, Declaration
of Jameson Murray (“Murray Decl. (1st)”) ¶ 5.)1 The Assignment
Agreement does not effect a specific assignment of plaintiff’s
account to NAR. Functionally, the Assignment Agreement is a
master agreement governing the terms of prospective, periodic
assignments of accounts by Crest to NAR for debt collection
purposes. For any such assignment, Crest agreed to:

transfer[], assign[] and set[] over to NAR, [Crest’s]
claims and demands against all debtors assigned
together with all of [Crest’s] rights, title and
interest therein, and the demands represented thereby,
and all rights of action accrued or to accrue.

(Assignment Agreement § 1.) Crest also granted NAR, subject to
limitations specified elsewhere in the agreement, “full power to
collect, compromise, reassign, or in any other manner enforce
the collection” of Crest’s claims. (Id.)
The Assignment Agreement described the mechanics for
prospective assignments:
Assignments shall be made by forwarding collection
accounts to NAR. Each time NAR receives accounts from
[Crest], NAR will send [Crest] an Acknowledgment
Report. Appearance of an account on the Acknowledgment
Report or appearance of the account on a Statement or
Status Report shall evidence that the account has been
validly assigned (“Assigned Account”) pursuant to the
terms of this Agreement.

1 The date of the Assignment Agreement is unclear from the document’s
face. The handwritten words “Crest Financial” appear on the line reserved
for the document’s execution date. (See Assignment Agreement, Recital.) The
Murray Declaration, however, attests under oath that the Assignment Agreement
was entered into between Crest and NAR on January 18, 2017, (Murray Decl. ¶
5), a fact plaintiff does not dispute, and which date the court accepts.
(Id. § 2.) The Assignment Agreement “covers every Assigned
Account regardless of when the account was assigned.” (Id. §
15.)
III. Assignment of Plaintiff’s Account

On December 19, 2018, three weeks after plaintiff
filed this lawsuit, Crest’s Director of Collections, Lester
Rueda, signed an “Evidence of Assignment of Debt” relating to
plaintiff’s account with Crest (“NAR Assignment”).2 (ECF No. 16-
4, NAR Assignment.) The NAR Assignment states that Crest
assigned plaintiff’s debt to NAR on January 17, 2018, along with
“full power to sue, . . . or in any other legal manner enforce
collection thereof.” (Id.; see also ECF No 16-1, Declaration of
Jameson Murray (“Murray Decl.”) ¶ 7 (“As of January 17, 2018,
Crest assigned Plaintiff Julie Ann Vitrano’s [] account with
Crest [] to N.A.R. in accordance with the Evidence of Assignment
of Debt.”).)3 On January 26, 2018, plaintiff received a letter
from NAR alerting her that the debt she owed to Crest had been

“placed with N.A.R., Inc. for collections.” (Compl., Exhibit A

2 The NAR Assignment refers to “Julie Ann Vitrane,” which appears to be a
misspelling of plaintiff’s name. Plaintiff does not raise an argument of
mistaken identity, so the court assumes the NAR Assignment references the
relevant debt at issue, without regard to its validity.
3 NAR’s Operations Department Manager, Jameson Murray, attests that Crest
only provided NAR with copies of the Lease “and other documents regarding
Plaintiff’s account” when NAR requested the documents after this case
commenced. (Murray Decl. ¶ 10.)
(“Collection Letter”).) The Collection Letter reflects a total
outstanding balance of $3,054.12. (Id.)
After the instant motion was fully-briefed, NAR also
filed a copy of its Acknowledgement Report to Crest. (ECF No.
28-1.) The Acknowledgement Report is redacted to protect third-
party debtor information, but page 119 of the report refers to a

debt owed by “Vitrane, J.” in an amount of $2,904.12, assigned
January 17, 2018. (Id. 119.)4 The outstanding debt amount
stated in the Acknowledgement Report matches the principal
outstanding in the Collection Letter, and like the Collection
Letter and NAR Assignment, refers to plaintiff as “Julie Ann
Vitrane.” (Compare id. with NAR Assignment, and Collection
Letter.)
IV. The Motion
Plaintiff initiated this action on November 28, 2018.
The complaint alleges NAR’s Collection Letter to plaintiff
violated the FDCPA by stating she owed $150 in fees without

indicating either the nature of the fees or whether they will
continue to accrue, and by displaying total interest of “0.00,”
despite plaintiff’s belief that the total outstanding debt of
$3,054.12 already incorporates accrued interest. (Compl. ¶¶ 20-
23.) Plaintiff also alleges that the Collection Letter violates

4 As with the Collection Letter, this appears to be a misspelling of
plaintiff’s name.
the FDCPA by failing to clarify who the current creditor is
under plaintiff’s account. (Id. ¶ 34.) Plaintiff asserts that
a class action under Federal Rule of Civil Procedure 23 is
appropriate because the Collection Letter was part of a mass-
mailing of similar debt collection letters to similarly-situated
individuals that raise common questions of fact and law. (Id. ¶

36.)
NAR moves to compel arbitration pursuant to the
Lease’s Arbitration Clause. (ECF No. 16, Defendant N.A.R.,
Inc.’s Memorandum of Law in Support of its Motion to Compel
Arbitration and to Strike Plaintiff’s Class-Action Claims
(“Mot.”).) Defendant’s argument is straightforward: plaintiff
agreed to forego individual and class action litigation and
agreed to arbitrate any claims related to her account under the
Lease’s Arbitration Clause; plaintiff’s FDCPA claim relates to
her account under the Lease; Crest transferred to NAR by valid
assignment all its rights under the Lease, including the right

to compel arbitration; therefore, NAR is entitled to compel
arbitration of plaintiff’s FDCPA claim under the FAA, and the
class action claims must be stricken. (See generally Mot.)
Plaintiff opposes arbitration.5 (See ECF No. 17,
Response in Opposition to Motion to Compel Arbitration
(“Opp.”).) Although she acknowledges the Lease includes an

5 As noted below, plaintiff musters only perfunctory opposition to the
motion to strike class claims.
otherwise valid Arbitration Clause, she does not accept that
NAR, as a non-signatory to the Lease, may invoke the Arbitration
Clause. (Opp. 1.) Plaintiff contends that the Arbitration
Clause specifically carves out third parties like NAR from
invoking its remedies because the term “Related Party” does not
explicitly encompass Crest’s assigns. (Id. 3.) She argues that

where the Lease contemplates a third party’s right to pursue
arbitration, it is only in circumstances where a plaintiff is
bringing a claim against the third party at the same time she is
pursuing a claim against Crest or the Crest corporate
enterprise. (Id. 3-4.) Plaintiff also contests NAR’s status as
an assignee. According to plaintiff, Crest merely gave NAR “the
ability to try to help them collect the debt for a fee,” and the
Assignment Agreement does not transfer the Lease or the
Arbitration Clause, or even reference arbitration. (Id. 5-6
(emphasis in original).) Finally, plaintiff asserts the Lease’s
definition of “we,” “our,” and “us,” which includes assigns, is

superseded by Arbitration Clause’s “more specific” definition of
those terms. (Id. 7-9.) Thus, assigns like NAR are not among
the parties with standing to utilize the Arbitration Clause’s
remedies. (Id.)
LEGAL STANDARD
The Lease is governed by the FAA, which creates a
“body of federal substantive law of arbitrability, applicable to
any arbitration agreement within the coverage of the Act.”
Moses H. Cone Mem’l Hosp. v. Mercury Corp., 460 U.S. 1, 24
(1983). Under the FAA, an arbitration provision in a contract
involving a commercial transaction “shall be valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.” 9 U.S.C. § 2; see

also In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 127
(2d Cir. 2011). The FAA “embod[ies] [a] national policy
favoring arbitration and a liberal federal policy favoring
arbitration agreements.” AT&T Mobility LLC v. Concepcion, 563
U.S. 333, 346 (2011) (quotation marks and citations omitted;
second modification in original).
Consistent with these principles, a court must resolve
four inquiries to determine whether an action should be ordered
to arbitration:
[F]irst, it must determine whether the parties
agreed to arbitrate; second, it must determine
the scope of that agreement; third, if federal
statutory claims are asserted, it must consider
whether Congress intended those claims to be
nonarbitrable; and fourth, if the court concludes
that some, but not all, of the claims in the case
are arbitrable, it must then decide whether to
stay the balance of the proceedings pending
arbitration.

JLM Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 172 (2d Cir. 2004)
(citing Oldroyd v. Elmira Sav. Bank, FSB, 134 F.3d 72, 75-76 (2d
Cir. 1998)). Only the first three inquiries pertain here
because the complaint alleges a single claim.
The FAA does not prioritize agreements to arbitrate
over other binding agreements. Brecher v. Midland Credit Mgmt.,
Inc., No. 18CV3142ERKJO, 2019 WL 1171476, at *2 (E.D.N.Y. Mar.
13, 2019) (citing Prima Paint Corp. v. Floo & Conklin Mfg. Co.,

388 U.S. 395, 404 n.12 (1967)). The statute places “arbitration
agreements on equal footing with other contracts, but it does
not require parties to arbitrate when they have not agreed to do
so.” EEOC v. Waffle House, Inc., 534 U.S. 279, 293 (2002)
(quotation marks omitted). A district court considering the
arbitrability of a dispute must preliminarily decide whether an
arbitration agreement exists. See BG Grp., PLC v. Republic of
Argentina, 134 S. Ct. 1198, 1206 (2014); see also John Hancock
Life Ins. Co. v. Wilson, 254 F.3d 48, 53 (2d Cir. 2001) (“Unless
the parties clearly and unmistakably provide otherwise, the
question of whether the parties agreed to arbitrate is to be

decided by the court, not the arbitrator.”) (quotation marks and
citations omitted). This question turns on state contract law.
See Bell v. Cendant Corp., 293 F.3d 563, 566 (2d Cir. 2002).
Here, New York law controls.6

6 Because plaintiff was a New York resident at the time the Lease was
executed, New York law governs interpretation of the Arbitration Clause.
(See Lease § 15(i).) Neither party disputes that New York substantive law
governs the issue of contract interpretation. See Golden Pac. Bancorp v.
FDIC, 273 F.3d 509, 514 n.4 (2d Cir. 2001) (“[S]uch implied consent is . . .
When the question of arbitrability arises in the
context of a motion to compel arbitration, courts apply a
standard roughly equivalent to summary judgment. Meyer v. Uber
Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017). All relevant,
admissible evidence submitted by the parties is considered and
all reasonable inferences are drawn in favor of the non-moving

party. Id.; see also Nicosia v. Amazon.com, Inc., 834 F.3d 220,
229 (2d Cir. 2016). “If there is an issue of fact as to the
making of the agreement for arbitration, then a trial is
necessary.” Bensadoun v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir.
2003); see also 9 U.S.C. § 4. If, however, “the undisputed
facts in the record require the matter of arbitrability to be
decided against one side or the other as a matter of law, [the
court] may rule on the basis of that legal issue and avoid the
need for further proceedings.” Wachovia Bank, Nat. Ass’n v. VCG
Special Opportunities Master Fund, Ltd., 661 F.3d 164, 172 (2d
Cir. 2011) (internal quotations omitted.)

DISCUSSION
I. Agreement to Arbitrate
Plaintiff does not dispute that she signed the Lease
and that the Lease includes an Arbitration Clause, from which
she did not opt out. (See Opp. 3 (“The arbitration clause upon

sufficient to establish the applicable choice of law.”).
which the Defendant is attempting to rely was an agreement made
between the Plaintiff Julie Ann Vitrano and Crest Financial.”)
(emphasis removed).) Although the Lease provided plaintiff with
a 30-day window to reject the Arbitration Clause (see Lease §
15(a)(ii)), plaintiff does not contend that she rejected the
provision or otherwise challenged its validity. Accordingly,

the court finds that plaintiff agreed to arbitration with Crest.
II. Scope of Arbitration Clause
To determine whether plaintiff’s FDCPA claim falls
within the scope of the Arbitration Clause, the court must
“classify the particular clause as either broad or narrow.”
Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc.,
252 F.3d 218, 224 (2d Cir. 2001). If an arbitration clause is
broad, “there arises a presumption of arbitrability and
arbitration of even a collateral matter will be ordered if the
claim alleged implicates issues of contract construction or the
parties rights and obligations under it.” Id. (internal

quotations omitted.) This presumption may be overcome only if
“the arbitration clause is not susceptible of an interpretation
that covers the asserted dispute.” WorldCrisa Corp. v.
Armstrong, 129 F.3d 71, 74 (2d Cir. 1997) (citations omitted).
Here, the Arbitration Clause is clearly broad in
scope, as it permits either party to arbitrate any “Claim,” and
defines Claim to include any “dispute or controversy between you
and us . . . that arise from or relates in any way to this Lease
or the Property.” (Lease §§ 15(a)(i), (b)(ii).) The Lease
affords Claim “the broadest possible meaning and includes claims
of every kind and nature,” including those “based on . . .
statute” and relating to “collection of any amounts you owe.”
(Id. § 15(b)(ii).)

The Arbitration Clause’s reference to “any dispute” is
“the paradigm of a broad clause,” Collins v. Aikman Prods. Co.
v. Bldg. Sys., Inc., 58 F.3d 16, 20 (2d Cir. 2005), and the
Second Circuit has consistently held that arbitration provisions
applicable to “any claim” or “any dispute” should be considered
“broad.” See, e.g., JLM Indus., 387 F.3d at 172 (finding an
arbitration clause encompassing “[a]ny and all differences and
disputes of whatsoever nature arising out of this Charter” broad
in scope); Paramedics Electromedicina Comercial, Ltda v. GE Med.
Sys. Info. Tech., Inc., 369 F.3d 645, 649 (2d Cir. 2004) (“any
controversy, claim or dispute between the Parties arising out of

or relating in any way to this Agreement”). Plaintiff does not
dispute her FDCPA claim is arbitrable. Nor could she. A
statutory cause of action arising from the attempted collection
of plaintiff’s debt is encompassed generally and specifically
under the Lease (“collection of any amounts you owe”), and falls
squarely within the scope of the Arbitration Clause. (See
generally Compl.)
III. Arbitrability of FDCPA Claims
Generally, federal statutory claims are arbitrable
unless Congress clearly communicates otherwise. See CompuCredit
Corp. v. Greenwood, 565 U.S. 95, 103 (2012) (finding that when
Congress restricts the use of arbitration, it does so with
clarity); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,

26 (1991) (“It is by now clear that statutory claims may be the
subject of an arbitration agreement, enforceable pursuant to the
FAA.”). The party opposing arbitration bears the burden to
establish that Congress “intended to preclude arbitration of the
statutory claims at issue.” Green Tree Fin. Corp.-Alabama v.
Randolph, 531 U.S. 79, 92 (2000). Plaintiff makes no such
assertions, and there is no indication that Congress intended
FDCPA claims to be nonarbitrable. See, e.g., Shetiwy v. Midland
Credit Mgmt., 959 F. Supp. 2d 469, 475 (S.D.N.Y. 2013) (finding
“nothing in . . . FDCPA indicates a clear congressional intent
to promote class recovery” or any statutory rights that would

preclude individual arbitration).
IV. Assignment of Debt
There is no dispute that the Arbitration Clause is
valid and applicable. The only remaining, dispositive question
is whether NAR can enforce it. This question is itself two-
pronged: first, can the Arbitration Clause in question be
enforced by assignees; second, did Crest, in fact, assign to NAR
the right to arbitrate claims relating to plaintiff’s account?
As explained below, the court answers both questions in the
affirmative.
A. The Arbitration Clause is Assignable
“Under New York law, an arbitration clause is
generally held to apply to the assignee of a contract.” See

Variblend Dual Dispensing Sys., LLC v. Seidel GmbH & Co., KG,
970 F. Supp. 2d 157, 166 (S.D.N.Y. 2013) (citing Lipman v.
Haeuser Shellac Co., Inc., 43 N.E.2d 817 (N.Y. 1942)); see also
Jugometal v. Samincorp, Inc., 78 F.R.D. 504, 507 (S.D.N.Y. 1978)
(“An assignee has the same standing to enforce an arbitration
award in this Court as its assignor would have . . . .”). It
follows that assignees generally have standing to enforce an
arbitration clause to the same extent as their assignors.
Brecher v. Midland Credit Mgmt., Inc., No. 18CV3142ERKJO, 2019
WL 1171476, at *6 (E.D.N.Y. Mar. 13, 2019) (“Arbitration
contracts may be enforced not only by the original parties but

also by assignees.”) (internal quotation marks and citations
omitted). To do so, the assignee must prove assignment of a
contract by a preponderance of the evidence. Zambrana v.
Pressler & Pressler, LLP, No. 16-CV-2907 (VEC), 2016 WL 7046820,
at *5 (S.D.N.Y. Dec. 2, 2016); see Solar & Envtl. Techs. Corp.
v. Zelinger, 726 F. Supp. 2d 135, 143, 148 (D. Conn. 2009)
(holding that under New York law, party seeking to enforce
arbitration agreement must prove agreement by preponderance of
the evidence) (citing Progressive Cas. Ins. Co. v. C.A.
Reaseguradora Nacional de Venezuela, 991 F.2d 42, 46 (2d Cir.
1993)).
It is beyond dispute that the Lease, and the
Arbitration Clause in particular, may be enforced by Crest’s

assignees. The Lease defines the terms “we,” “our,” and “us” to
include “Crest Financial Services, LLC, and its successors and
assigns.” (Lease at ECF p. 2 of 9 (emphasis added).) The
Arbitration Clause, which states that “‘you’ and ‘we’ agree that
either party may elect to arbitrate or require arbitration of
any Claim,” (id. § 15(a)(i) (emphasis added)), plainly
authorizes Crest’s assignees to elect arbitration of claims
arising under the Lease.
Plaintiff nonetheless resists such a straightforward
interpretation of the Arbitration Clause. She concedes that
assignees fall under the Lease’s general definition on “we,”

“our,” and “us,” but asserts that the underlying contract
“specifically excluded” assignees from enforcing the Arbitration
Clause. (Opp. 3, 8.) Plaintiff argues that the Arbitration
Clause is governed by its own, unique set of definitions that
overrides the Lease’s general terms. (Id. 8.) Indeed, the
Arbitration Clause modifies the default meaning of “we,” “us,”
and “our” to:
include our "Related Parties" - all our parent
companies, subsidiaries and affiliates, and our and
their employees, directors, officers, shareholders,
governors, managers and members.

(Lease § 15(b)(i) (emphasis added).) The term “Related Parties”
further:
include[s] third parties that you bring a Claim
against at the same time you bring a Claim against us
or any other Related Party, including, without
limitation, the merchant who sold us the Property we
then leased to you.

(Id.)
Plaintiff confuses the modification of a term with its
wholesale substitution. It is well-settled that, in
interpreting a contract’s terms, courts must give effect to the
plain meaning of its words. Consumer Fin. Prot. Bureau v. RD
Legal Funding, LLC, 332 F. Supp. 3d 729, 754 (S.D.N.Y. 2018).
The word “include” is defined by Black’s Law Dictionary as “to
contain as a part of something.” INCLUDE, Black's Law
Dictionary (11th ed. 2019). As used in the Arbitration Clause,
“include” merely adds Related Parties to the parties encompassed
by “we,” “us,” and “our,” which encompasses assignees, and
plainly expands the category of parties that may elect
arbitration. Although the parties spill ink over whether NAR is
a “Related Party,” the court need not wade into that dispute at
all. The language of the Arbitration Clause is clear,
unequivocal, and unambiguous: Crest’s assignees may enforce the
Arbitration Clause regardless of whether they are Related
Parties.
Plaintiff also urges the court to construe the
Arbitration Clause as protecting plaintiff, Crest, and Crest’s
related corporate entities, but not “third parties” such as NAR,
unless Crest is also sued. The court agrees that “third

parties” may only elect arbitration in the event that Crest is
sued as well, but that has no practical impact on NAR’s capacity
to arbitrate. NAR is an assignee of Crest and stands in its
shoes; thus, NAR is a party to the Lease, not a third party. See
THIRD PARTY, Black's Law Dictionary (11th ed. 2019)(defining
third party as “[s]omeone who is not a party to a lawsuit,
agreement, or other transaction but who is somehow implicated in
it; someone other than the principal parties.”); Richard T.
Blake & Assocs., Inc. v. Aetna Cas. & Sur. Co., 255 A.D.2d 569
(N.Y. App. Div. 2d Dep't 1998) (“It is well established that an
assignee stands in the shoes of the assignor . . . .”); cf.

United States v. Paccione, 101 F.3d 687 (2d Cir. 1996)
(distinguishing between third parties and assignees to written
agreement).
Furthermore, plaintiff’s reasoning, that the
Arbitration Clause’s modification of “we,” “us,” and “our”
precludes Crest’s assignees from electing arbitration, would, if
carried to its logical conclusion, deprive Crest itself of the
right to elect arbitration. The plaintiff argues that the
Arbitration Clause “re-defines” the Lease’s default definitions
for “we,” “us,” and “our,” effectively substituting “assignees”
with “Related Parties.” (Opp. 8.) Plaintiff’s strained
interpretation would also write Crest out of the Arbitration
Clause, because the relevant text overtly refers to Crest’s

parent companies, subsidiaries, and affiliates, but does not
expressly reference Crest itself, just as it does not expressly
reference Crest’s assigns. The notion that Crest intentionally
forfeited the right to elect arbitration when it executed the
Lease and agreed to the Arbitration Clause is, of course,
nonsensical, and discredits the plaintiff’s proposed reading of
the Arbitration Clause. See Luver Plumbing & Heating, Inc. v.
Mo's Plumbing & Heating, 144 A.D.3d 587, 588 (N.Y. App. Div. 1st
Dep’t 2016) (“[A] contract should not be interpreted to produce
a result that is absurd, commercially unreasonable or contrary
to the reasonable expectations of the parties[.]”) (citation

omitted).
The Arbitration Clause is thus assignable, and may be
enforced by Crest’s assignees. The final issue is whether Crest
assigned the Arbitration Clause to NAR.
B. NAR May Enforce the Arbitration Clause
Crest validly assigned its rights under the Lease to
NAR on January 17, 2018. These rights included the ability to
elect arbitration of any disputes with plaintiff arising under
the Lease. To support the assignment’s validity, NAR offers two
affidavits by Jameson Murray. (Murray Decl. (1st); ECF No. 28-
2, Second Declaration of Jameson Murray (“Murray Decl. (2nd)”).)
Murray’s affidavits and the attached exhibits are admissible
under Federal Rule of Evidence 803(6).7 Murray states that, as

NAR’s Operations Department Manager since November 5, 2015, and
a NAR employee since 2011, his declaration is based on “personal
knowledge gained through [his] employment” and upon his review
of NAR’s business records. (Murray Decl. (1st) ¶¶ 2, 4; Murray
Decl. (2nd) ¶¶ 3, 6.) Murray further explains that the records
appended to his declarations were “made by, or from information
transmitted by, a person with knowledge” of the events pertinent
to defendant’s motion, and “are kept in the ordinary course of
the regularly conducted business activity of such person and
[NAR].” (Murray Decl. (1st) ¶ 4; Murray Decl. (2nd) ¶ 6.)
Murray further adds that it is NAR’s “regular practice . . . to

make or maintain such records,” which he routinely relies on in
performing his employee responsibilities. (Murray Decl. (1st) ¶
4; Murray Decl. (2nd) ¶ 6.) As required to lay a proper

7 Rule 803(6) permits the admission of a record that would otherwise
qualify as hearsay, if it “was made at or near the time by . . . someone with
knowledge[,] . . . was kept in the course of a regularly conducted activity
of a business, . . . [and] making the record was a regular practice of that
activity.” Fed. R. Evid. 803(6). These conditions must be “shown by the
testimony of the custodian or another qualified witness.” Id.
foundation for the admission of a business record under FRE
803(6), Murray has demonstrated that he is a qualified witness,
that the statements are based on personal knowledge or his
review of NAR’s business records, and that the documents were
kept in the ordinary course of business. See United States v.
Komasa, 767 F.3d 151, 156 (2d Cir. 2014).

Crest assigned plaintiff’s debt to NAR on January 17,
2018. Pursuant to the NAR Assignment, Crest assigned to NAR
“full power to sue, . . . or in another legal manner enforce
collection” of plaintiff’s past due debt under the Lease. (See
NAR Assignment; Murray Decl. (1st) ¶ 7.) The assignment of
plaintiff’s account was also registered in NAR’s Acknowledgement
Report. The NAR Assignment and Acknowledgement Report are
contemplated in the procedure for account assignments set forth
by the Assignment Agreement. Specifically, the Assignment
Agreement provided that “[a]ssignments shall be made by
forwarding collection accounts from [Crest],” and after each

such assignment, “NAR will send [Crest] an Acknowledgment
Report” to serve as “evidence that the account has been validly
assigned [] pursuant to the terms of this Agreement.”
(Assignment Agreement § 2.) Crest agreed that each assignment
of an account to NAR would constitute the transfer to NAR of
Crest’s “claims and demands against” the assigned account, and
that the transfer included an assignment to NAR of “all of
[Crest’s] rights, title and interest therein, . . . and all
rights of action accrued or to accrue.” (Id. § 1.)
Plaintiff disregards the broad language of the
Assignment Agreement and argues that the net effect of the
Assignment Agreement was merely “to give the Defendant N.A.R.
access to Crest’s accounts for a temporary period for the

purposes of collection . . . ,” but did not assign NAR the
ability to arbitrate assigned accounts. (Opp. 6 (emphasis in
original).) She reasons that because the Assignment Agreement
did not expressly assign the Arbitration Clause, the parties
must have intended to exclude the provision from the scope of
Crest’s assignment. (Id. 5.) Plaintiff cites no legal
authority to support her contention, which is unsurprising,
because it runs headlong into New York law’s presumption that
“an arbitration clause is generally held to apply to the
assignee of a contract.” Variblend, 970 F. Supp. 2d at 166; see
Lipman, 43 N.E.2d at 819 (“[T]he arbitration clause is an

integral part of the contract and may be availed of, not only by
the original parties but also by assignees.”); Tanbro Fabrics
Corp. v. Deering Milliken, Inc., 35 A.D.2d 469, 471 (N.Y. App.
Div. 1st Dep’t 1971) (“[T]he assignee of a contract acquires the
assignor’s rights therein and assumes its obligations including
an agreement to arbitrate.”); Blum’s, Inc. v. Ferro Union Corp.,
36 A.D.2d 584, 585 (N.Y. App. Div. 1st Dep’t 1971), aff'd, 274
N.E.2d 751 (N.Y. 1971) (“An assignee who has taken over the
rights of an assignor is bound to an arbitration clause in the
assigned contract.”); In Re Lowenthal, 199 A.D. 39, 44 (N.Y.
App. Div. 1st Dep’t 1921) (“It seems to us that, where a
contract is assignable, the arbitration clause is an integral
part thereof, and may be availed of by either party to the

contract or by his legal representatives or assigns . . . . If
the arbitration clause of an assignable contract of sale is not
available, except as to the parties to such a contract, it would
then be a simple matter, if either party sought to escape the
effect of such a clause, to assign the contract to a third
party.”). The court finds no reason to deviate from that long-
standing rule here.
Plaintiff’s other challenges to NAR’s assignment
likewise fail. Plaintiff notes that the Assignment Agreement
does not grant NAR full rights to collect debts owed to Crest
under the Lease. It is true that, under the Assignment

Agreement, Crest retains the right to approve settlements
between NAR and Crest’s debtors, halt NAR’s efforts to collect
an account, and recall an assigned account under certain
circumstances. (Assignment Agreement §§ 8, 9, 10.) All this
proves, however, is that where Crest and NAR intended to limit
the scope of NAR’s assignment, they stated so expressly. They
did no such thing with respect to the Arbitration Clause.
Instead, Crest and NAR intended that Crest assign its
arbitration rights to NAR. Plaintiff also argues, in a
footnote, that the NAR Assignment, dated December 19, 2018, was
“created after this lawsuit began,” and therefore, is irrelevant
to the Assignment Agreement in place when defendant’s alleged
FDCPA violation occurred in January 2018. (Opp. 7 (emphasis in

original).) The NAR Assignment, however, is clearly relevant to
the question of whether NAR was indeed the assignee of
plaintiff’s account, and plaintiff does not otherwise challenge
the trustworthiness of the NAR Assignment, or its admissibility
as a business record under FRE 803(6).8 Moreover, plaintiff’s
account is among those listed in the Acknowledgement Report,
which the Assignment Agreement states is evidence of a valid
assignment.
NAR has thus established by a preponderance of the
evidence that it is the valid assignee of plaintiff’s account,
and Crest’s rights thereunder, including the right to elect

arbitration for any claims arising under the Lease. For all
plaintiff’s protestations, she has not come forward with any
document to refute defendant’s submissions, produced an
affidavit that refutes defendant’s evidence, or even suggested

8 To the extent plaintiff does question the NAR Assignment’s
authenticity, “even inadmissible evidence may properly be considered on
summary judgment if it may reasonably be reduced to admissible form at
trial.” Parks v. Blanchette, 144 F. Supp. 3d 282, 293 (D. Conn. 2015)
(quotation marks and citations omitted).
there are documents that will be produced in discovery that
refute defendant’s showing. Accordingly, there is no genuine
dispute of material fact that NAR may elect to arbitrate
plaintiff’s FDCPA claim, and that plaintiff’s claim is within
the Arbitration Clause of the Lease.
V. Class Action Waiver

Defendant's motion also requests that this court
strike the complaint’s class allegations based on the Lease’s
class action waiver. Plaintiff does not meaningfully oppose this
request. Nor could she. The Arbitration Clause is clear: if
either party elects arbitration, plaintiff will lose her right
to “participate in a class action in court or in arbitration,
either as a class representative, class member or class
opponent.” (Lease § 15(f).) Class action waivers, like the one
in the Lease, are valid and enforceable. Shetiwy, 959 F. Supp.
2d at 474-75 (“[A] generalized congressional intent to vindicate
statutory rights [such as those in the FDCPA] cannot override

the FAA’s mandate that courts enforce arbitration clauses,
including those with class action waivers, as written.”) (citing
Am. Express Co. v. Italian Colors Restaurant, 570 U.S. 232-33
(2013)); see also Tsadilas v. Providian Nat'l Bank, 786 N.Y.S.2d
478, 480 (N.Y. App. Div. 1st Dep’t 2004) (“The arbitration
provision is enforceable even though it waives plaintiff’s right
to bring a class action.”). Accordingly, defendant’s motion to
strike plaintiff’s class action claims is granted.

CONCLUSION
For the foregoing reasons, defendant’s motion to
compel arbitration and strike plaintiff’s class action claims is

GRANTED. The FAA “mandate[s] a stay of proceedings when all of
the claims in an action have been referred to arbitration.” See
Katz v. Cellco P’ship, 794 F.3d 341, 345-47 (2d Cir. 2015); see
also 9 U.S.C. § 3 (“[T]he court . . . shall . . . stay the trial
of the action until such arbitration has been held . . . .”).
Thus, a stay of these proceedings is appropriate. The Clerk of
Court is respectfully requested to mark this case as STAYED
pending arbitration of plaintiff’s claim. The parties are
directed to jointly update the court within five days after
receiving a decision in the arbitration, or otherwise resolving
this matter.

SO ORDERED.

Dated: March 27, 2020
Brooklyn, New York

/s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303965. Public record. Not legal advice.