In The Court of Appeals

MBNA America Bank, N.A., Respondent,


Joseph E. Baumie, Appellant.

Appeal From Spartanburg County
 J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2008-UP-205
Submitted March 4, 2008 – Filed March 25, 2008


Joseph E. Baumie, of Inman, for Appellant.

Eric C. Hale and Roy W. Boggs, of Columbia, for Respondent.

PER CURIAM:  A credit card holder, Joseph E. Baumie, argues the circuit court erred in confirming an arbitration award issued by the National Arbitration Forum in favor of MBNA America Bank, N.A., the issuer of Baumie’s credit card.  Specifically, Baumie argues MBNA failed to produce evidence of an arbitration agreement between the parties.  We reverse.[1]


MBNA filed an arbitration claim against Baumie in the National Arbitration Forum (Forum) alleging it had issued Baumie a credit card and he subsequently defaulted on their agreement.  Baumie contested arbitration several times in writing to the Forum, asserting he never agreed to arbitrate.  Despite Baumie’s assertions, the Forum went forward with the arbitration and determined the parties entered into an arbitration agreement.  The Forum found in favor of MBNA in the amount of $11,241.84. 

MBNA filed a complaint in circuit court seeking confirmation of the arbitration award.  Baumie answered and filed a counterclaim and a motion to dismiss.  MBNA filed a motion to confirm the arbitration award, and Baumie filed a motion opposing the confirmation.  Following a hearing, the circuit court took the matter under advisement, and subsequently issued an order confirming the award and entering judgment against Baumie in the amount of $11,241.84.  This appeal followed.


Unless the parties otherwise provide, the question of the arbitrability of a claim is an issue for judicial determination.  Zabinski v. Bright Acres Assocs., 346 S.C. 580, 596, 553 S.E.2d 110, 118 (2001).  Determinations of arbitrability are subject to de novo review, but if any evidence reasonably supports the circuit court’s factual findings, this court will not overrule those findings.  Stokes v. Metropolitan Life Ins. Co., 351 S.C. 606, 609-10, 571 S.E.2d 711, 713 (Ct. App. 2002).


Baumie argues the circuit court erred by confirming the arbitration award because MBNA had not produced sufficient evidence of an arbitration agreement.  We agree. 

The Federal Arbitration Act requires courts to enforce privately negotiated arbitration agreements according to their terms.  Zabinski v. Bright Acres Assocs., 346 S.C. 580, 592, 553 S.E.2d 110, 116 (2001).  However, “arbitration is a matter of contract, and a party cannot be required to arbitrate any dispute which he has not agreed to arbitrate.” Chassereau v. Global Sun Pools, Inc., 373 S.C. 168, 171-2, 644 S.E.2d 718, 720 (2007) (citing Zabinski at 596, 553 S.E.2d at 118). 

If a party challenges the enforcement of an arbitration award on the grounds that there was not an arbitration agreement between the parties, it naturally follows the court must first ascertain whether the agreement actually existed.  The party seeking enforcement of the award, then, must present evidence of the agreement itself because “[t]he burden is on a party pleading a fact to prove it.”  Jackson v. Frier, 146 S.C. 322, 144 S.E. 66, 68, (1928); Hammond v. Halsey, 287 S.C. 46, 49, 336 S.E.2d 495, 497 (Ct. App. 1985).

In the instant case, the only evidence of the arbitration agreement provided by MBNA was a photocopy of a seven-page pamphlet entitled “Credit Card Agreement Additional Terms and Conditions,” outlining the terms and conditions of an agreement.  However, MBNA offers no evidence to authenticate the pamphlet or show it was in fact sent to Baumie.  Furthermore, while the pamphlet explains the terms of an arbitration agreement, its language merely refers to some other agreement.  Outside of the pamphlet, MBNA did not provide any evidence whatsoever of any actual agreement between itself and Baumie, nor did it produce any evidence that Baumie in fact agreed to arbitration.  Accordingly, because MBNA failed to produce any evidence of an actual arbitration agreement between the parties, the circuit court erred in confirming the arbitration award.

We note several other jurisdictions[2] have arrived at similar decisions regarding whether consumers agreed to arbitration with MBNA. See, e.g., MBNA Am. Bank, N.A. v. Boata, 893 A.2d 479 (Conn. App. 2006); MBNA Am. Bank, N.A. v. Rogers, 838 N.E.2d 475 (Ind. App. 2005); MBNA Am. Bank, N.A. v. Hart, 710 N.W.2d 125 (N.D. 2006); MBNA Am. Bank, N.A. v. Terry, 2006 WL 513952 (Ohio Ct. App. 2006); MBNA Am. Bank, N.A. v. Berlin, 2005 WL 3193850 (Ohio Ct. App. 2005); MBNA Am. Bank, N.A. v. Perese, 2006 WL 398188 (Texas App. 2006).  In a similar case involving MBNA, the Kansas Supreme Court addressed this very issue and found:

MBNA failed to attach a copy of the arbitration agreement to its motion to confirm the award.  This violated the Federal Arbitration Act for which MBNA intermittently expresses respect. . . . This alone would have justified the district court in its decision to deny MBNA’s motion to confirm the award. 

MBNA Am. Bank, N.A. v. Credit, 132 P.3d 898, 901 (Kan. 2006) (citing 9 U.S.C. § 13 (2000)).  According to 9 U.S.C.A. § 13 (2000):

The party moving for an order confirming, modifying, or correcting an award shall, at the time such order is filed with the clerk for the entry of judgment thereon, also file the following papers with the clerk: (a) The agreement; the selection or appointment, if any, of an additional arbitrator or umpire; and each written extension of the time, if any, within which to make the award.

While the language of the statute requires the clerk to file the agreement with the judgment and does not address the documents to be filed when commencing an action to confirm the award, it does not relieve MBNA of the burden of showing an agreement to arbitrate existed.  As stated by the Kansas Supreme Court, “[g]iven MBNA’s casual approach to this litigation, we are not surprised that [a national trend in which consumers are questioning MBNA and whether arbitration agreements exist] may be growing.”  Credit, 132 P.3d at 902.


Because MBNA failed to produce evidence showing an arbitration agreement between itself and Baumie, the circuit court erred in confirming the arbitration award.  Accordingly, the order of the circuit court is



[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] This court has also recently addressed this issue in MBNA Am. Bank, N.A. v. Christianson, Op. No. 4349 (S.C. Ct. App. Filed March 4, 2008) (Shearouse Adv. Sh. No. 10 at 74).