962 F.Supp.2d 1303 (S.D.Fla. 2013), 13-60066-CIV, Inetianbor v. Cashcall, Inc.

Docket Nº:13-60066-CIV-COHN/SELTZER
Citation:962 F.Supp.2d 1303
Opinion Judge:JAMES I. COHN, United States District Judge.
Party Name:ABRAHAM INETIANBOR, Plaintiff, v. CASHCALL, INC., Defendant
Attorney:No. 13-60066-CIV-COHN/SELTZER For Abraham Inetianbor, Plaintiff: Aaron Goss, John S. Hughes, Mona Lisa Wallace, LEAD ATTORNEYS, PRO HAC VICE, Cathy Anne Williams, Wallace & Graham, P.A., Salisbury, NC; Brian William Warwick, Varnell & Warwick PA, The Villages, FL. For Cashcall, Inc., Defendant: A...
Case Date:August 19, 2013
Court:United States District Courts, 11th Circuit, Southern District of Florida
 
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Page 1303

962 F.Supp.2d 1303 (S.D.Fla. 2013)

ABRAHAM INETIANBOR, Plaintiff,

v.

CASHCALL, INC., Defendant

No. 13-60066-CIV-COHN/SELTZER

United States District Court, S.D. Florida

August 19, 2013

For Abraham Inetianbor, Plaintiff: Aaron Goss, John S. Hughes, Mona Lisa Wallace, LEAD ATTORNEYS, PRO HAC VICE, Cathy Anne Williams, Wallace & Graham, P.A., Salisbury, NC; Brian William Warwick, Varnell & Warwick PA, The Villages, FL.

For Cashcall, Inc., Defendant: Andrew Mikel Shapiro, Christopher Stephen Carver, Stacy Jaye Rodriguez, Akerman Senterfitt, Miami, FL.

OPINION

Page 1304

ORDER GRANTING PLAINTIFF'S RENEWED MOTION FOR COURT TO RECONSIDER ITS ORDER REQUIRING ARBITRATION

JAMES I. COHN, United States District Judge.

THIS CAUSE is before the Court upon Plaintiff's Renewed Motion for Court to Reconsider Its Order Requiring Arbitration [DE 72]. The Court has considered the motion, Defendant's response [DE 81], Plaintiff's reply [DE 86], the representations of counsel at the August 16, 2013 hearing, the record in this case, and is otherwise fully advised in the premises.

I. BACKGROUND

On January 5, 2011, Plaintiff Abraham Inetianbor entered into a consumer loan agreement with Western Sky Financial, LLC (" Western Sky" ), for $2,525.00, with

Page 1305

an annual interest rate of 135%. DE 16-2 at 3-4. Defendant CashCall, Inc. (" CashCall" ), is the servicer, handler, and collector on the loan. DE 16 at 2. Plaintiff claims that he has paid off the loan in full, but that CashCall has continued to report to credit bureaus that he has upcoming or late payments. DE 1-3 at 2. On July 12, 2012, Plaintiff brought suit in the Seventeenth Judicial Circuit Court, Broward County, Florida, alleging that CashCall had defamed Plaintiff's character by misrepresenting his creditworthiness to credit reporting agencies. See DE 1-2 at 3-4. On December 17, 2012, Plaintiff filed an Amended Complaint in state court. CashCall then removed the action to this Court on January 11, 2013. DE 1 at 2-3.

The subject loan agreement requires that all disputes arising out of the agreement " be resolved by Arbitration, which shall be conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement." DE 16-2 at 5. The agreement further provides that

Arbitration shall be conducted in the Cheyenne River Sioux Tribal Nation by your choice of either (i) a Tribal Elder, or (ii) a panel of three (3) members of the Tribal Council, and shall be conducted in accordance with the Cheyenne River Sioux Tribal Nation's consumer dispute rules and the terms of this Agreement. . . . The party receiving notice of Arbitration will respond in writing by certified mail return receipt requested within twenty (20) days. You understand that if you demand Arbitration, you must inform us of your demand of the Arbitrator you have selected. You also understand that if you fail to notify us, then we have the right to select the Arbitrator.

Id. at 6. Accordingly, on January 24, 2013, CashCall filed a Motion to Compel Arbitration and Dismiss or Stay Case [DE 16]. On February 15, 2013, the Court issued an Order (" February 15 Order" ) granting the motion to compel, and directing the parties to submit the claims to arbitration. See DE 33 at 8.

Then, on March 12, 2013, Plaintiff filed a Motion to Reopen Case [DE 37], in which he advised the Court that, subsequent to the February 15 Order, he attempted to submit the case for arbitration to the Cheyenne River Sioux Tribal Nation (" the Tribe" ). However, the Tribe, through Judge Mona R. Demery, responded with a letter dated March 8, 2013, stating that " the Cheyenne River Sioux Tribe . . . does not authorize Arbitration as defined by the American Arbitration Association (" AAA" ) here on the Cheyenne River Sioux Reservation located in Eagle Butte, SD 57625." DE 37 at 5. Plaintiff argued that arbitration before the designated forum was unavailable, and requested that the Court reopen the case. CashCall responded that arbitration could still be conducted by Tribe members on the reservation, but failed to clarify how this contention was consistent with the letter from the Tribal court. See DE 39. The Court determined that the arbitral forum designated in the loan agreement was unavailable, and that the choice of forum was integral to the agreement to arbitrate. Thus, the Court found that the arbitration agreement failed, and reopened the case. See DE 45 (" April 1 Order" ).

Subsequently, CashCall served a Demand for Arbitration [DE 53-1] requesting that arbitration be conducted before a Tribal Elder...

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