7th Circuit: Bring Possible Arbitration Agreement to Court’s Attention Early to Prevent Waiver

According to the Seventh Circuit in Smith v. GC Services Limited Partnership, No. 18-1361 (7th Cir. Oct. 22, 2018), a debt collector should bring a possible arbitration agreement to the court’s attention as early as possible or forever hold its peace. This decision seems to imply that it is general knowledge that most credit card agreements have an arbitration clause and the agreements are available online, so the debt collector should bring a potential arbitration agreement to the court's attention even if the debt collector does not yet have the specific consumer's agreement in hand.

Factual and Procedural Background

The underlying Fair Debt Collection Practices Act (FDCPA) lawsuit stems from GC Services’ (the company) attempt to collect on the plaintiff’s Sam’s Club credit card account. The credit agreement between the creditor and the consumer contained an arbitration clause and a class waiver for all disputes that arise from the account.