BackedIn

Survivability clause

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Wondering if someone can weigh in...had a card with MBNA opened around 1995 until last year. MBNA agreement had Arbitration with NAF that included a survivability clause (copied the portion in question below). I realize NAF is no longer are involved with consumer debt arb, plus MBNA was absorbed then subsequently sold to different banks the order of which I forget exactly during in banking crisis, but included Wash Mutual,  Providian, then HSBC which sold all accounts to Crap 1.

Knowing Crap 1 took all the arb clauses out of their agreements, is it likely this agreement from MBNA (agreement from 2004-2005 before MBNA disintergrated; ) with the survivability clause could govern? Opinions please and Thank You in advance!

This Arbitration and Litigation Section shall survive the termination of your Account with us as well as any voluntary payment of the debt in full by you, any bankruptcy by you or sale of the debt by us.

For the purposes of this Arbitration and Litgation Section, “we” and “us” means MBNA America Bank, N.A., its parent, subsidiaries, affiliates, licensees, predecessors, successors, assigns, and any purchaser of your Account, and all of their officers, directors, employees, agents and assigns or any and all of them. Additionally, “we” or “us” shall mean any third party providing benefits, services, or products in connection with the Account (including but not limited to credit bureaus, merchants that accept any Credit Device issued under the Account, rewards ot enrollment services, credit insurance companies, debt collectors and all of their officers, directors, employees and agents) if, and only if, such a third party is named by you as a co-defendant in any Claim you assert against us.

 

If any part of this Arbitration and Litigation Section is found to be invalid or unenforceable under any law or statute consistent with the FAA, the remainder of this Arbitration and Litigation Section shall be enforceable without regard to such invalidity or unenforceability.

Whole agreement is attached.

 

2004-2005-MBNA-Agreement-with-NAF_with_survivability.pdf

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2 hours ago, BackedIn said:

Knowing Crap 1 took all the arb clauses out of their agreements, is it likely this agreement from MBNA (agreement from 2004-2005 before MBNA disintergrated; ) with the survivability clause could govern?

My opinion:  no.  The clause states it survives terminating the account  and BK not NAF no longer handling consumer accounts.  You cannot force the identified arbitration entity to enter into it because of a survivability clause they are not a party to.

There is a slim possibility a court could order it into JAMS or AAA but I could also see the upholding the Plaintiff's objection to arbitration based on the clause being nullified by NAF no longer handling consumer cases combined with Cap1 removing arbitration as an option.

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Thank you for your thoughts. I didn't copy the whole Arb section in that attached agreement. It does state that it binds the parties even with the sale of this debt by them, which is essentially what they did when the successor banks took over ownership of the accounts. It also states that if NAF is unable or unwilling, another independent 3rd party arbitrator would be substituted with the same FAA rules applying. That leaves Crap1's Arb removal. 

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