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Sign in Maine Arbitration Agreement for Banking

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E signature arbitration agreement

hey guys welcome to our video is John Watson a consumer protection lawyer in Alabama that wants to look at a recent federal case from the Middle District of Florida which is the Tampa area and it involves a claim by a consumer and then the defendant saying well wait a minute you can't sue me in court you have to go to arbitration and so the courts going to look at whether or not the defendant can force or what's called compel arbitration so the background of this case is there was a hyundai purchased and the finance agreement was eventually assigned to PNC that's the main defendant here paying and then the consumer Sullivan falls behind on her payments and the car was repossessed and then there's a lawsuit brought in state court so here are the claims brought in state court that we've got the Uniform Commercial Code UCC was violated the Fair Debt Collection Practices Act FDCPA was finally Florida consumer Collection Practices Act which is kind of the equivalent sout a hundred percent but it's very close to the Federal Fair Debt Collection Practices Act and then 42 USC section 1983 trespass negligence battery assaults all these claims are made and the defendant removes the case to federal court saying what you did sue me under some federal law so I have the right to take the case or remove the case to federal court and then once it was in federal court the defendant seeks to compel arbitration and so when you move to compel arbitration you'd normally ask the court to stay the proceedings in other words stop them freeze them and say let us go over an arbitrary which means there's no jury there's no judge I'm in front of maybe one person or maybe a panel of three people that may or may not be lawyers and they'll make the decision so they act as the judge and the jury if you will in the case and then we have this other defendant absolute recovery they join in and then the plaintiff responds to that and says no no no no you have no right to compel arbitration and then PNC has replied to that's that's a typical way that emotion works in federal court at least a substantial motion you have the initial motion then you have the response to it opposing it and then the person that filed the initial motion gets the last word that's called the reply brief typically and the reason they get the last word is they have the obligation or the burden to carry the day in other words to show the judge that yes I am entitled to what I'm asking for it might be to dismiss a case to grant summary judgment or to force arbitration so what do we do when we're looking at arbitration court points out there's a two-step process here first the court looks and says pretty simple kind of common sense did the parties agree to arbitrate I mean if you didn't agree to arbitrate you can't force arbitration this is voluntary arbitration it wants a voluntary I mean you voluntarily enter into it now the business may say well if you don't agree to arbitrate we won't do business with you okay and that that's a whole other set of issues but the point is did the parties agree to arbitrate and then second if they did agree are there any sort of constraints on whether that arbitration agreement will be enforced and judge said we don't have to get to the second part we only look at the first part and the bank says well look obviously the case must be arbitrated because the finance agreement says that it will be arbitrated ensure enough finance agreement two-page document includes an arbitration provision and this is pretty standard any claim or dispute whether in contract tort statute or otherwise and then going on down I'll just highlight the whole thing here between you and us are employees agents successors assigns arising out of related to your credit application the vehicle the contract I mean it's it's super bra how these things are typically worded and that says the court points out there's no signature line beneath the arbitration provision but on the first page of the finance agreement there is a separate quote agreement to arbitrate with the signature line and then what does that say by signing below you you do what you agree that pursuant to the arbitration provision on the reverse side of this contract you or we may elect to resolve a dispute by neutral binding arbitration not by court action well here's the problem for the bank the consumer says I did not agree to that well consumer how do we know you didn't agree to I never signed it Court says I agree now the bank argues against that so here's the first argument they say under Eleventh Circuit precedent which just means the Eleventh Circuit is our Court of Appeals and that is for Florida Georgia and Alabama and when it issues a ruling that's binding on the district court judges and the PNC says well look just read the Eleventh Circuit case all the previous Eleventh Circuit decisions that gives you everything you need to know they say Eleventh Circuit says an agreement to arbitrate is only required to be in writing it does not have to be signed which is true but we're gonna see how the judge responds to this and PNC goes on to say even though there's no signature it's still binding and the court says look you have misinterpreted this Kaley versus Gulfstream case so the Court did observe that a valid arbitration agreement can be created without either party signing but that does not mean the arbitration provision here is binding and I say just look at the facts of this case and so let me get this highlighted for us the arbitration provision drafted by the defendant employer and Kaila did not have a signature line rather it said your continued employment was how you accept this arbitration agreement so thus the fact that the employee did not sign the arbitration provision was irrelevant you'd already agreed to it by continuing the employment so here's what this decision stands for an arbitration provision can define a means of acceptance other than a signature and it can still be valid well what does this one say this one says Sullivan would agree to arbitrate by signing the agreement thus the contract defined the means of acceptance well what is that pretty simple Sullivan's signature on the signature line is the agreement to arbitrate yeah this is a really important point not just for arbitration but big picture here the court is saying the fact that it could have been drafted differently so there could have been an arbitration provisions not request signature does not mean the agreement to arbitrate provision as actually drafted did not need to be signed so flip that around the court say you could have worded it differently but this is how you worded it so you're stuck with how you word it and it says it has to be signed and it was not signed so you lose here's second argument I say well look I found this case from the Eastern District of New York that an unsigned arbitration provision is binding this Lovelace versus show Romano and here the court says even though the signature line was not signed the arbitration provision was still binding make us play if it sign the bottom of the contract and the court just says look I I don't think this this decision is particularly important and it certainly doesn't change my mind notice this the plaintiff failed to raise the argument that the arbitration provision was not buying him because it was unsigned so look a lot of times either arguments aren't raised or there's a lot of pro se decisions out there and other words people file these lawsuits particularly against mortgage kind Panisse and some debt collectors but particularly mortgage companies they don't have a lawyer and so the defendant will make an argument and the plaintiff won't respond they just don't know to respond and so then there's a quote bad ruling and then in a case we're involved in the defendant will trot that decision out and we say wait a minute this argument wasn't even raised okay so it doesn't matter it's not very persuasive and the court says thus the Lovelace courts discussion this issue is pure dicta so dicta just means it's unnecessary to resolve the case so sometimes you'll see judges say well we're gonna rule in favor of the plaintiff here but we'll just go on and start talking about you know we'll just sort of pontificate what we think the judge should do in the future this may come up well that wasn't necessary to decide the case so that can be ignored so here unlike lovey Sullivan that's the plaintiff in our Florida case from 2019 actually and persuasively argues the arbitration provision does not bind him because she did not sign it thus Lovelace does not convince the court the arbitration provision here is binding and the court says look I agree that the plaintiff never assented or agreed to arbitrate so state law governs of formation and interpretation of arbitration agreements so what law is here well it's Florida law and then we have this very simple thing a party cannot be required to arbitrate a dispute it did not agree to submit to arbitration not a common sense but you have to understand these defendants they have let me go off on a little tangent here defendants have a love/hate relationship with arbitration on the one hand they love it because it means they can't get popped in a big jury verdict and they also feel like most plaintiffs lawyers and frankly there's some truth to this will just go away when there's a requirement to arbitrate but then when we take them into arbitration and they realize the cost of arbitration and they realize they can get nailed and there's really no review it's not like they can really go appeal that then suddenly they go wait a minute this is so unfair you shouldn't make us arbitrate we had a case many many years ago company forced us into arbitration we fought it we appealed it the appellate court said you gotta arbitrate so we go arbitrate it's like weeks and weeks of arbitration and there was a damage provision and I may have talked about this in other videos but a damaged provision it says that all we could gets a hundred thousand dollars and just to be blunt well we told the arbitrator's that's bogus I mean you don't have to follow that it's just crazy that there'd be this limitation in it and the arbitrator's ignored it gave us a seven-figure award well he would be amazed actually you wouldn't be but it was so funny it's now the defendant that it fought us all the way to the top court forcing us into arbitration they go back into court begging the judge please set this aside this is so unfair we got hit in arbitration if we had been in front of the court you would have enforced that damage limitation and this is outrageous it's unfair the judge just starts laughing he's like boys this is what you wanted you're stuck with it now that's why I say they have a love-hate relationship you know they're very eager to force us into arbitration and then when bad things happen in arbitration they want to go run to the federal judge or the state court judge and say these terrible arbitrators they're not actually judges they messed up it's too late so anyway that's sort of their love-hate relationship here with it and but they tend to sort of their knee-jerk reaction as to force arbitration but they skip over this step of you gotta actually have agreed to arbitrate and then the next step is that to make sure the claim is within the confines of what you agreed to arbitrate so a lot of judges in the past have just sort of rubber stamp these things like oh yeah you gotta go arbitrate and so companies are just very kind of lackadaisical about it and this is a great decision lawyer here did a great job pointing out to the court hey my client never agreed to arbitrate and so that was a good job by him and then looking a little bit further in this case so like we look at state law governing it but we also know federal policy favors it but here's the Florida law if a contract is unambiguous then the actual language used is the best evidence of the intent and a contract under Florida law requires mutual assent say well how about this language pretty clear and unambiguous it required a signature she never signed it so there's no mutual assent and then they reject the other arguments here and this is the bottom line never agree to it can't be compelled therefore motion denied so again great job by the lawyer here and great job by the judge recognizing this is the law and enforcing the law in this case as it's written and enforcing the contract as well so hope you found that helpful if you're ever facing arbitration this is a good starting point and you kind of want to have a checklist if you're a lawyer watching this and representing clients you want to have a checklist and say okay they're raising arbitration did we agree to it is it covered by the scope of arbitration how about are the parties the same for I'll give you an example we had a case that we sued a debt collector and they move to compel arbitration and we looked at the arbitration and it defined who like a lot of these arbitrations will say if you or we you know get into a controversy and there defines who we is who you is and you look at it and it never said anything about selling the debt to somebody else it says you know the company is the credit card company and any agent acting on our behalf well I can promise you credit-card companies do not believe when they sell debt that these debt buyers are acting as their agent because that would make them responsible for what the debt buyer does they absolutely do not agree than that and so even though we had agreed to the arbitration it only was arbitration between us and the credit card company not us and the debt buyer that had bought the debt so again we have sort of a checklist and go through and and just take every step very methodical way that when the defendant says AHA there's an arbitration agreement and this how they do it they send you an email and they say John your client signed an arbitration or agreed to an arbitration so you can go ahead and dismiss your case like we'll send me the arbitration agreement well we don't have the actual one but we have sort of a specimen copy how do I know that that's actually what my client saw or my client agreed to and then we go read the terms and we realize that's not drafted as broadly as maybe it could have been and and it just drives the lawyers crazy so you've got to be really really focused make sure that arbitration is appropriate before you agree to it and like in this case if it's not appropriate then you fight it and so I hope you enjoyed this and I'll catch you guys the next video if you have any questions or comments sort of a general nature put those below if you want to reach out to us directly again Alabama consumer comm or contact John wants calm Joh NWA TTS and that will go directly to our contact page and again my name is John watts and phone numbers 2:05 eight seven nine two four four seven and I'll kitchen the next one bye bye

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