2D07-2909 / Cunningham v. MBNA America Bank, N.A.

State: Florida

Court: Florida Southern District Court

Docket No: 2D07-2909

Case Date: 04/03/2009

Plaintiff: 2D07-2909 / Cunningham

Defendant: MBNA America Bank, N.A.

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT A.W. CUNNINGHAM a/k/a Wayne Cunningham, ) ) ) Appellant, ) ) v. ) ) MBNA AMERICA BANK, N.A., a ) National Banking corporation, ) ) Appellee. ) ___________________________________ ) Opinion filed April 3, 2009. Appeal from the Circuit Court for Polk County; Dennis P. Maloney, Judge. Debra J. Sutton and Sara-Jean Palmer of Sutton Law Firm, Bartow; Neal L. O'Toole of Lilly O'Toole & Brown LLP, Bartow, for Appellant. Richard E. Landman and George N. Andrews of Akerman Senterfitt, Fort Lauderdale, for Appellee.

Case No. 2D07-2909

LaROSE, Judge.

A.W. Cunningham appeals the trial court's order granting MBNA America Bank, N.A.'s motion to dismiss his second amended counterclaim. Because the trial

court erred in dismissing, with prejudice, two permissive claims, we reverse, in part, and remand for further proceedings. This case has a lengthy history but can be summarized concisely. MBNA issued a credit card in Mr. Cunningham's name, but allegedly without his knowledge, to a third party, presumably his ex-wife. Some two years later, MBNA placed the account in default for nonpayment. At about that time, Mr. Cunningham learned of the unpaid debt. Through counsel, he disputed liability. MBNA tried to collect from Mr. Cunningham. Pursuant to the credit card agreement, MBNA instituted arbitration in Maryland before the National Arbitration Forum. Although he knew of these proceedings, Mr. Cunningham did not participate in the arbitration. The arbitrator entered an award of over $21,000 in favor of MBNA. Mr. Cunningham knew of the award. MBNA filed a complaint and an amended complaint in the trial court seeking damages and domestication of the arbitration award. Essentially, MBNA sought confirmation of the award. See 9 U.S.C.

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