Frazier v. Citifinancial Corp. LLC
| Decision Date | 30 April 2010 |
| Docket Number | No. 08-15188,08-15709.,08-15188 |
| Citation | 604 F.3d 1313 |
| Parties | Patricia FRAZIER, Plaintiff-Appellant,v.CITIFINANCIAL CORPORATION, LLC, Defendant-Appellee.John Frazier, Plaintiff,Patricia Frazier, Plaintiff-Appellant,v.CitiFinancial Corporation, LLC, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
604 F.3d 1313
Patricia FRAZIER, Plaintiff-Appellant,
v.
CITIFINANCIAL CORPORATION, LLC, Defendant-Appellee.
John Frazier, Plaintiff,
Patricia Frazier, Plaintiff-Appellant,
v.
CitiFinancial Corporation, LLC, Defendant-Appellee.
Nos. 08-15188, 08-15709.
United States Court of Appeals,
Eleventh Circuit.
April 30, 2010.
604 F.3d 1313
Lee Wendell Loder, Loder, P.C., Law Firm, Birmingham, AL, for Patricia Frazier.Alan Daniel Leeth, Reid Stephens Manley, Burr & Furman, LLP, Birmingham, AL, for CitiFinancial Corp., LLC.
Appeals from the United States District Court for the Northern District of Alabama.
Before DUBINA, Chief Judge, and BIRCH and SILER,* Circuit Judges.
604 F.3d 1314
BIRCH, Circuit Judge:Patricia Frazier appeals from the district court's 11 September 2008 order confirming an arbitration award in favor of CitiFinancial Corporation, LLC (“CitiFinancial”) and its 18 September 2008 order denying her motion to vacate the award.1 Because none of the statutory bases for vacatur or modification of arbitration awards set forth in the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., applies in this case, and because the judicially-created grounds for vacatur we have recognized in our prior precedent are no longer valid after the Supreme Court's decision in Hall Street Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008), we AFFIRM.
In April 2000, Frazier's husband, John Frazier, obtained a loan in the amount of $33,570 from HomeSense Financial Corporation of Alabama (“HomeSense”). Mr. Frazier signed a promissory note, a mortgage, and an arbitration agreement in connection with the loan transaction. Mrs. Frazier's signature also appears on the mortgage, although it was later determined by the arbitrator during the arbitration proceedings that her signature was forged by Mr. Frazier. The arbitration agreement provided, in pertinent part:
In consideration of HomeSense Financial Corp. of Alabama's extension of credit, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties, intending to be legally bound hereby, knowingly and voluntarily enter into this Arbitration Agreement (“Agreement”), which sets forth the circumstances and procedures under which Claims (as defined below) may be arbitrated instead of litigated in court.Definitions. As used solely in this Arbitration Agreement, the following definitions will apply:
“You” or “Your” mean any and all Borrower(s) who execute this Agreement, and their heirs, executors, predecessors, successors and assigns.
“We” or “Us” mean HomeSense Financial Corp. of Alabama[,] all of its parents, wholly or majority owned subsidiaries, affiliates, predecessors, successors, and assigns; and all of the agents, employees, directors and representatives of such entities. In addition, “we” or “us” mean any third party providing any product or service in connection with the Credit Transaction (including but not limited to investors or potential investors, real estate brokers, mortgage brokers, credit bureaus, appraisers, mortgage life insurance companies, private mortgage insurance companies, closing agents, escrow agents, title insurance companies, loan originators, rating agencies and loan servicers) or any assignee of the Credit Transaction if, and only if, such third party is named as a co-defendant with us in a Claim asserted by you.
“Credit Transaction” means the loan obligation identified by the above referenced Loan Number and any prior loan obligation which
604 F.3d 1315
was originated, owned and/or serviced by us; the notes, mortgages, deeds of trust, deeds to secure debt, security agreements, applications, disclosures and other documents related to or evidencing said obligation(s); any modification, extension or forbearance of said obligation(s); any insurance, service or product offered or made available by us in connection with the Credit Transaction and any associated fees or charges; and any documents, instruments or advertising or promotional materials that contain information about the Credit Transaction or any associated insurance, service or product.
“Claim” means any claim, dispute or controversy between you and us (except for Excluded Claims, as defined below) arising from or relating to the Credit Transaction or the relationships resulting from the Credit Transaction, including the validity, enforceability or scope of this Arbitration Agreement, or the Credit Transaction. “Claim” includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statute, common law and equity. The term “Claim” is to be given the broadest possible meaning and includes, by way of example and without limitation, any claim, dispute or controversy that arises under or relates to the Truth in Lending Act and Regulation Z; the Equal Credit Opportunity Act and Regulation B; the Real Estate Settlement Procedures Act and Regulation X; state insurance, usury and lending laws; fraud or misrepresentation, including claims for failing to disclose material facts; other federal or state consumer protection statues or regulations; any party's execution of the Agreement and/or willingness to be bound by the terms of this Agreement or any dispute about soliciting, originating, making, closing, servicing, collecting or enforcing the Credit Transaction.
“Excluded Claims” means (a) any action to effect a judicial or nonjudicial foreclosure or to establish a deficiency judgment; (b) any action arising out of unlawful detainer; (c) eviction or other summary proceeding to secure possession of real property securing the Credit Transaction; (d) any action to assert, collect, protect, realize upon or obtain possession of the collateral for the Credit Transaction in any bankruptcy proceeding; (e) any action to quiet title; (f) all rights of self-help including peaceful occupation of real property and collection of rents, set-off and peaceful possession of personal property; (g) obtaining a deed in lieu of foreclosure; and (h) obtaining provisional or ancillary remedies in connection with the foregoing.
Resolution of Claims. Any Claim shall be resolved, upon the election of you or us, by binding arbitration pursuant to this Arbitration Agreement and the applicable rules of either the American Arbitration Association (“AAA”), J.A.M.S[.]/Endispute (“J.A.M.S.”) or National Arbitration Forum (“NAF”) in effect at the time the Claim is filed. You may select which of these arbitration administrators to use. The address, telephone number, web site and the applicable rules for each of these arbitration administrators is set forth at the end of this Agreement. If you fail to select an arbitration administrator within
604 F.3d 1316
twenty (20) days from the date you or we demand arbitration, we will choose one. The arbitrator (or in the case of an appeal to a panel of three arbitrators, as described below) shall be a lawyer with more than ten (10) years of experience or a retired judge.
....
Federal Arbitration Act and Appeals. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and, notwithstanding any choice of law clause which may be contained in any other documents which are part of the Credit Transaction, shall be government by the Federal Arbitration Act (“FAA”) 9 U.S.C. Sections 1 et seq. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the award. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any state rules of civil procedure or rules of evidence. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator's decision will be final and binding, except for any right of appeal provided by the FAA and except that, if the amount in controversy exceeds $100,000, any party can appeal the award to a three-arbitrator panel administered by the same arbitration administrator which shall reconsider de novo any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote. The costs of such an appeal will be borne by the appealing party regardless of the outcome of the appeal.
....
Important Additional Disclosures. IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES OF THE ARBITRATION ADMINISTRATOR. FURTHERMORE, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION, EXCEPT AS SET FORTH ABOVE, THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
Acknowledgement. By signing below, you acknowledge that you understand and agree that if arbitration of any Claim is elected, you will be giving up your right to a court or jury trial and the right to be part of a class action, and that you give up those rights knowingly and voluntarily. You further understand and agree that other rights that you would have if you went to court will also not be available in arbitration. By signing below, you also acknowledge that you have read this Agreement carefully, that you are entering into it voluntarily and not in reliance on any promises or representations other than...
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