[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 3, 2005
No. 04-15403
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02317-CV-J-2
DENNIS HARDY,
HENRIETTA HARDY,
Plaintiffs-Appellees,
versus
REGIONS MORTGAGE INC.,
Defendant,
CENDANT CORPORATION,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 3, 2005)
Before TJOFLAT, PRYOR and ALARCON *, Circuit Judges.
PER CURIAM:
Cendant Corporation appeals the denial of its motion to compel arbitration
by the district court. Cendant contends that the district court erred when it
concluded that the Hardys had not assented to the arbitration provision contained
in their membership agreement with the Shoppers Advantage club. Cendant relies
heavily upon the decision of the Alabama Supreme Court in Memberworks, Inc. v.
Yance, 899 So. 2d 940 (Ala. 2004), which is virtually indistinguishable from this
case. The Hardys accepted a three-month trial period during which they received
the arbitration agreement and could have cancelled their membership without a
penalty. The Hardys instead accepted the arbitration provision when they
continued to pay $5 a month from July 1996 to 2003 for their membership in the
club. Id. at 943-44; see also UBS PaineWebber, Inc. v. Brown, 880 So. 2d 411,
415 (Ala. 2003).
REVERSED and REMANDED.
*
Honorable Arthur L. Alarcon, United States Circuit Judge for the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
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