ROSA M. WILLIAMS-HOPKINS VS. LVNV FUNDING, LLC (L-6190-17, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5325-17T2
ROSA M. WILLIAMS-HOPKINS,
on behalf of herself and those
similarly situated,
Plaintiff-Appellant,
v.
LVNV FUNDING, LLC,
Defendant-Respondent.
______________________________
Argued March 27, 2019 – Decided April 26, 2019
Before Judges Koblitz, Currier, and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-6190-17.
Scott C. Borison (Legg Law Firm, LLP), of the District
of Columbia, Maryland, and California bars, admitted
pro hac vice, argued the cause for appellant (Kim Law
Firm, LLC, and Scott C. Borison, attorneys; Yongmoon
Kim and Scott Borison, of counsel and on the briefs).
Michael A. Iannucci argued the cause for respondent
(Blank Rome, LLP, attorneys; Michael A. Iannucci, on
the brief).
PER CURIAM
Plaintiff Rosa M. Williams-Hopkins appeals from a June 8, 2018 order
compelling arbitration and dismissing her complaint with prejudice. We affirm
the order compelling arbitration. However, we remand to the trial court to issue
an amended order staying the case pending arbitration or, in the alternative,
dismissing the complaint without prejudice.
The facts are set forth in plaintiff's complaint. In 2003, plaintiff acquired
a credit card from First Premier Bank (Bank). To be issued a credit card,
plaintiff was required to sign a Credit Card Contract and Initial Disclosure
Agreement (Agreement), indicating her assent to the terms and conditions in the
document.
The Agreement stated "any claim, dispute or controversy between you and
us arising from or relating to the [c]ontract or your [c]redit [a]ccount
relationship . . . including, but not limited to the validity, enforceability or scope
of the [a]rbitration [p]rovision [or] the contract. . . shall be settled by binding
arbitration . . . ." The term "claim" addressed "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 torts, statutes,
. . . regulations, common law and equity." The word "contract" encompassed
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"the terms and conditions outlined in [the] Agreement." The term "us" included
the Bank "and all of its affiliates, licensees, predecessors, successors, assigns,
[and] any purchaser of your [c]redit [a]ccount . . . ." The Agreement also
included, in capital letters, a "Waiver of Right to Trial" and "Waiver of Right to
Participate in Class Action."
Plaintiff did not deny signing the Agreement. Nor did she disavow her
use of the credit card for three years before defaulting on her payment
obligations.
Defendant LVNV Funding, LLC purchased plaintiff's credit card account
debt from the Bank. Plaintiff did not dispute that defendant purchased her debt
related to the credit card.
On October 18, 2017, plaintiff commenced a class action lawsuit against
defendant. Defendant moved to dismiss plaintiff's complaint and compel
arbitration in accordance with the Agreement. After hearing the arguments of
counsel, the motion judge granted defendant's motion and dismissed plaintiff's
complaint with prejudice. The judge concluded plaintiff signed the Agreement
and, consistent with the terms and conditions in the Agreement, plaintiff's claims
were required to be resolved through arbitration.
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On appeal, plaintiff argues defendant failed to prove it had a valid
assignment of the Agreement from the Bank. Absent evidence of a valid
assignment, plaintiff claims defendant cannot compel arbitration. 1
"The existence of a valid and enforceable arbitration agreement poses a
question of law" requiring our de novo review. Barr v. Bishop Rosen & Co.,
Inc., 442 N.J. Super. 599, 605 (App. Div. 2015) (citing Hirsch v. Amper Fin.
Servs., LLC, 215 N.J. 174, 186 (2013)). "Our review of a contract, generally,
is de novo, and therefore we owe no special deference to the trial court's . . .
interpretation. Our approach in construing an arbitration provision of a contract
is governed by the same de novo standard of review." Atalese v U.S. Legal
Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014) (citation omitted).
Both federal and state law governing arbitration agreements apply to this
matter. The Federal Arbitration Act, 9 U.S.C. §§ 1 to 16, and the Uniform
Arbitration Act, N.J.S.A. 2A:23B-1 to -32, support arbitration of disputes.
Roach v. BM Motoring, LLC, 228 N.J. 163, 173 (2017); Hojnowski v. Vans
Skate Park, 187 N.J. 323, 342 (2006).
1
Plaintiff contends she raised this issue to the trial court. However, motion
briefs are not part of the record on appeal. See R. 2:6-1(a)(2). In reviewing the
transcript of the motion to compel arbitration, we note the issue was not argued
before the motion judge.
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The Agreement states any claim "including, but not limited to the validity,
enforceability or scope of the [a]rbitration [p]rovision [or] the contract" shall be
"settled by binding arbitration." The Agreement expressly provides neither
party has "the right to litigate any claim in court or have a jury trial on that
claim." The Agreement applies to plaintiff and "any purchaser of [a] [c]redit
[a]ccount."
The Agreement also provides any claim shall be adjudicated by an
arbitrator. The United States Supreme Court has held "a court may not decide
an arbitrability question that the parties have delegated to an arbitrator." Henry
Schein, Inc. v. Archer & White Sales, Inc., ___ U.S. ___, 139 S. Ct. 524, 530
(2019); see also Amalgamated Transit Union, Local 880 v. N.J. Transit Bus
Operations, Inc., 200 N.J. 105, 118 (2009) (holding "[a] court's duty is to refrain
from adjudicating the merits of a dispute that properly belongs to an arbitrator").
Here, plaintiff's claim relates to the Bank's assignment of the Agreement
to defendant. This issue, as well as other issues raised by plaintiff, must be
submitted to arbitration in accordance with the terms of the Agreement. During
oral argument before the panel, defendant conceded the arbitrator should
determine whether the Bank assigned to defendant all rights under the
Agreement, including the right to compel arbitration.
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While we affirm the order compelling arbitration of plaintiff's claims, the
judge improvidently dismissed plaintiff's complaint with prejudice. See GMAC
v. Pittella, 205 N.J. 572, 582 n.6 (2011) (citing N.J.S.A. 2A:23B-7(g)). The
Uniform Arbitration Act provides for stays, rather than dismissals, of ma tters
pending arbitration. Ibid. Therefore, we remand the matter to the trial court to
enter an amended order staying the action pending arbitration or, in the
alternative, dismissing the complaint without prejudice.
Affirmed as to compelling arbitration. Remanded for the entry of an
amended order consistent with this opinion. We do not retain jurisdiction.
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