Opinion
No. 00 C 4399
January 11, 2001
ORDER
Defendant Conseco Finance Corp. has renewed its motion to compel arbitration and stay this case pending completion of the arbitration. Familiarity with the Court's November 29, 2000 ruling, reported at 2000 WL 1709643, is assumed.
The materials accompanying Conseco's renewed motion establish the procedures that it followed to ensure that sometime between mid-October and mid-November 1998, all of its cardholders (including Kennedy) were sent a notice that the terms of their cardholder agreement were being changed, along with a notice of the changes — which included the arbitration provision upon which Conseco bases its motion. These materials establish that the notice was sent to Kennedy with her November 6, 1998 billing statement.
Statements were mailed to Kennedy at "378 80th E. Kensington Ave., Chicago, IL 60628." Though this is not exactly the address that Kennedy gave to Conseco when she applied for a credit card — her application reports an address of "378-80 E. Kensington Ave., Chicago, IL 60628" — the materials provided by Conseco confirm that Kennedy regularly received her statements and made payments to Conseco after getting the statements. Indeed, Kennedy made a payment to Conseco on November 24, 1998, which provides further confirmation that she actually received the November 6 statement (which included the notice of changes to the cardholder agreement).
The notice advised cardholders that they could advise Conseco if they declined the proposed changes to the cardholder agreement and that use of the cardholder's credit card after December 1, 1998 would constitute acceptance of the terms. Kennedy used her credit card after that date, and there is no indication (nor does Kennedy claim) that she sent a notice declining the changes.
Kennedy has not challenged the veracity or completeness of the materials submitted by Conseco in support of its renewed motion. For the reasons stated in the Court's prior ruling, Conseco has laid a sufficient foundation to establish a presumption of delivery — in fact it has gone well beyond what is necessary to establish such a presumption. In the face of that evidence, Kennedy's claimed lack of recollection of receiving the notice is not sufficient to rebut Conseco's evidence. See 11/29/00 Memorandum Opinion, p. 6.
For the foregoing reasons, defendant's renewed motion to compel arbitration and stay proceedings is granted. This case is stayed until completion of the arbitration proceedings. A status hearing is set for September 12, 2001 at 9:30 a.m.