Tillman v. Commercial Credit Loans, Inc.

TIMMONS-GOODSON, Justice.

The question chiefly presented is whether the arbitration clause contained in the loan agreements that serve as the basis for the instant case is unconscionable. Because the clause is one-sided, prohibits joinder of claims and class actions, and exposes claimants to prohibitively high costs, we hold that the trial court did not err in concluding as a matter of law that the clause is unconscionable.

I. BACKGROUND

Plaintiffs Fannie Lee Tillman and Shirley Richardson (“plaintiffs”) are North Carolina residents who obtained loans from defendant Commercial Credit Loans, Inc. (n/k/a CitiFinancial Services, Inc.). On 22 September 1998, Fannie Lee Tillman obtained a loan for a term of 120 months with a principal amount of $18,253.68. In connection with the loan, Commercial Credit sold Mrs. Tillman single premium credit life and disability insurance with premiums of $1,058.80 and $1,005.95, respectively. On 4 June 1999, Shirley Richardson obtained a loan for a term of 180 months with a principal amount of $20,935.57. In connection with the loan, Commercial Credit sold Mrs. Richardson single premium credit life, disability, and involuntary unemployment insurance with premiums of $1,871.54, $1,109.49, and $1,227.72, respectively. Plaintiffs’ loan principal amounts included their insurance premiums, which were financed over the life of the loan.

Credit life insurance pays off a borrower’s loan if the borrower dies; credit disability pays off the loan if the borrower becomes disabled; and credit involuntary unemployment pays the loan if the borrower becomes involuntarily' unemployed. The insurance is referred to as single premium because “the borrower is charged the entire insurance premium at the time the underlying loan is originated, with the premium being financed into and over the life of the loan.” In July 1999 the North Carolina General Assembly outlawed single premium credit insurance for loans made or entered into on or after 1 July 2000. Act of July 15, 1999, ch. 332, sec. 5, 1999 N.C. Sess. Laws 1202, 1216 (codified at N.C.G.S. § 24-10.2(b) (2005)).

It is undisputed that both plaintiffs have limited financial resources. Mrs. Tillman’s weekly after-tax take-home pay is approximately $258.00. Her husband is deceased, and as a result, Mrs. Tillman also receives $285.60 per month in pension benefits and $1063.00 per month in Social Security benefits. Mrs. Richardson works two jobs where she earns $12.70 per hour and $12.00 per hour. For both plaintiffs, their home is their most significant asset.

Plaintiffs’ loan agreements contained the standard arbitration clauses that defendants have included in their loan agreements since 12 February 1996. The arbitration clause was drafted by defendants, and plaintiffs were given no opportunity to negotiate regarding the clause. The clause contains the following relevant provisions:

Agreement to Arbitrate Claims. Upon written request by either party that is submitted according to the applicable rules for arbitration, any Claim, except those specified below in this Provision, shall be resolved by binding arbitration in accordance with (i) the Federal Arbitration Act; (ii) the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association (“Administrator”); and (iii) this Provision, unless we both agree in writing to forgo arbitration. The terms of this Provision shall control any inconsistency between the rules of the Administrator and this Provision. . . .

Claims Excluded from Arbitration. The following types of matters will not be arbitrated. This means that neither one of us can require the other to arbitrate:

• Any action to effect a foreclosure to transfer title to the property being foreclosed; or

• Any matter where all parties seek monetary damages in the aggregate of $15,000.00 or less in total damages (compensatory and punitive), costs, and fees.

Appeal. Either You or We may appeal the arbitrator’s award to a three-arbitrator panel selected through the Administrator, which shall reconsider de novo any aspect of the initial award requested by the appealing party. The expedited procedures of the Administrator shall not govern any appeal. An appeal will be governed by Rule 23 of the Comprehensive Arbitration Rules and Procedures of J*A*M*S/Endispute, Inc.

No Class Actions/No Joinder of Parties. You agree that any arbitration proceeding will only consider Your Claims. Claims by or on behalf of other borrowers will not be arbitrated in any proceeding that is considering Your Claims. Similarly, You may not join with other borrowers to bring claims in the same arbitration proceeding, unless all of the borrowers are parties to the same Credit Transaction.

Costs. The cost of any arbitration proceeding shall be divided as follows:

• The party making demand upon the Administrator for arbitration shall pay $125.00 to the Administrator when the demand is made.

• We will pay to the Administrator all other costs for the arbitration proceeding up to a maximum of one day (eight hours) of hearings.

• All costs of the arbitration proceeding that exceed one day of hearing will be paid by the non-prevailing party.

• In the case of an appeal, the appealing party will pay any costs of initiating an appeal. The non-prevailing party shall pay all costs, fees, and expenses of the appeal proceeding and, if applicable, shall reimburse the prevailing party for the cost of filing an appeal.

• Each party shall pay his/her own attorney, expert, and witness fees and expenses, unless otherwise required by law.

Severability. If the arbitrator or any court determines that one or more terms of this Provision or the arbitration rules are unenforceable, such determination shall not impair or affect the enforceability of the other provisions of this Agreement or the arbitration rules.

In June 2002 plaintiffs commenced this suit¹ against defendants Commercial Credit Loans, Inc., Commercial Credit Corporation, Citigroup, Inc., CitiFinancial, Inc., CitiFinancial Services, Inc., and Citicorp, Inc.,² asserting claims for violations of North Carolina’s Unfair and Deceptive Trade Practices Act, N.C.G.S. § 75-1.1, unjust enrichment, and breach of the duties of good faith and fair dealing. The claims rest on plaintiffs’ contention that they did not want or need single premium credit insurance and that Commercial Credit did not tell them that the insurance was optional. In addition, plaintiffs claim that Commercial Credit was the sole beneficiary of the insurance policies. Plaintiffs’ complaint specifically alleges that “Commercial Credit violated North Carolina law by failing to provide Plaintiffs with requisite disclosures regarding the credit insurance sold to them and by charging fees that were deceptive, unfair, duplicative, imposed without adequate commercial justification or disclosure, and in excess of the fees permitted by North Carolina law.” Plaintiffs seek money damages based on the amount of credit insurance premiums collected by defendants.

Beginning in May 2003, defendants filed a series of motions to compel arbitration pursuant to the arbitration clause contained in plaintiffs’ loan agreements. In an order entered on 20 January 2005, the trial court denied defendants’ motion to compel arbitration dated 17 June 2004. The order included the following findings of fact:

9. The Commercial Credit arbitration clause is a standard-form contract of adhesion. The borrower is given no opportunity to negotiate out of the arbitration provision, and CitiFinancial Services, Inc. would not make a loan if the loan agreement did not include the arbitration provision. The loan documents, including the arbitration provision at issue, were drafted by Defendant.

10. Since the time CitiFinancial Services, Inc. began including an arbitration clause in its loan agreements, the lender has made more than 68,000 loans in North Carolina. During that time, CitiFinancial Services has pursued lawsuits in civil court against more than 3,700 borrowers in North Carolina, including over 2,000 collection actions and more than 1,700 foreclosure actions. Defendant has been able to pursue claims in civil court by virtue of two exceptions within the arbitration clause, which Defendant drafted, for (1) foreclosure actions and (2) matters in which less than $15,000.00 in damages, including costs and fees, are sought. The average amount in dispute in matters in which CitiFinancial Services, Inc. pursued legal action against North Carolina borrowers is under $7,000.00.

11. Since the time CitiFinancial Services, Inc. began including an arbitration provision in its loan agreements, there have been no arbitration proceedings in North Carolina involving CitiFinancial Services, Inc. and any of its borrowers.' Since introduction of the arbitration clause, no North Carolina borrower has requested arbitration of any dispute with CitiFinancial Services, Inc., nor has CitiFinancial Services, Inc. demanded arbitration of any dispute involving any North Carolina borrower. The only legal redress sought has been the collection and foreclosure actions pursued in civil court by Defendant against its borrowers.

12. The only persons present at the loan closings involving Plaintiffs Tillman and Richardson were Plaintiffs and a Commercial Credit loan officer. [Mrs.] Tillman and [Mrs.] Richardson were rushed through the loan closings, and the Commercial Credit loan officer indicated where [Mrs.] Tillman and [Mrs.] Richardson were to sign or initial the loan documents. There was no mention of credit insurance or the arbitration clause at the loan closings.

13. The compensation rates for American Arbitration Association (“AAA”) arbitrators in North Carolina range from $500.00 to $2,380.00 per day. The average daily rate of AAA arbitrator compensation in North Carolina is $1,225.00.

14. Plaintiffs Fannie Lee Tillman and Shirley Richardson entered into contingency fee contracts with the attorneys representing them. The contingency fee contract is typical of such agreements. The contingency fee agreement entered into by Plaintiffs provides that their attorneys will not be entitled to any fee unless there is some monetary recovery obtained on behalf of Plaintiffs, either by way of settlement or verdict. The agreement further provides that the law firm representing Plaintiffs shall advance the costs and expenses incurred in prosecuting the action.

15. Based upon the 1998 North Carolina Bar Associátion Economic Survey, the most recent survey published, the average hourly rate for attorneys working on litigation matters such as this is between $150.00-$250.00 per hour.

16. Based upon the limited financial resources of Plaintiffs and other similarly situated borrowers, they could not afford to hire an attorney to be paid on an hourly basis. The only realistic means by which persons in the position of Plaintiffs can prosecute their claims is by entering into a contingency fee agreement with lawyers willing to advance the costs and expenses of the litigation and with the law firm assuming the risk that there might be no recovery.

17. Plaintiffs asserted claims for relief under Chapter 75 of the North Carolina General Statutes, contending that Defendant's] sale of single-premium credit insurance in connection with real estate loans constituted an unfair or deceptive trade practice or act in or affecting commerce. Plaintiffs seek damages based upon the amount of premiums charged for those credit insurance products. In most cases, the premium charges for single-premium credit insurance sold by CitiFinancial Services, Inc. were under $5,000.00 per loan. Plaintiff Fannie Lee Tillman was charged $2,064.75 in single-premium credit insurance premiums in connection with her September 22, 1998 loan; Plaintiff Shirley Richardson was charged $4,208.75 for single-premium credit insurance with her June 4, 1999 loan. The relatively modest damages claimed by Plaintiffs make it unlikely that any attorneys would be willing to accept the risks attendant to pursuing claims against one of the nation’s largest lenders, even with the prospect of a treble damages award and statutory attorney’s fees. It would not be feasible to prosecute the claims of the named Plaintiffs and of putative class members on an individual basis.

18. Defendant’s arbitration clause contains features which would deter many consumers from seeking to vindicate their rights. These features include the cost-shifting (“loser pays”) provision with respect to the initial arbitration proceeding to the extent it exceeds eight hours, the cost-shifting provision associated with the de novo appeal from that initial arbitration proceeding, and the prohibition on joinder of claims and class actions. The prohibition on class actions and the cap of $15,000.00 on the value of claims that can be pursued outside of the arbitration process designed by Defendant make[] it unlikely that borrowers would be able to retain lawyers willing to pursue litigation against a large commercial entity, such as CitiFinancial Services, Inc.

19. To successfully prosecute a complex case, including a class action such as this one, a law firm would likely need the assistance of expert witnesses. The hourly fees of experts in the fields of economics, lending practices, and credit insurance can range from $150.00 to $300.00 per hour, plus expenses. In complex cases, litigation costs and expenses, including deposition costs, travel expenses, and expert witness fees, can easily run into thousands of dollars. The class action mechanism allows persons with relatively small claims to pool their resources and have those litigation expenses and costs shared among all class members. The class action device provides a means by which consumers with modest damages claims can obtain representation by competent counsel with sufficient resources to afford protracted litigation in complex cases.

Ultimately, the trial court denied the motion to compel arbitration based on its conclusion that the arbitration clause contained in plaintiffs’ loan agreements is unconscionable and unenforceable

due to the prohibitively high arbitration costs borrowers might face in pursuing claims through arbitration, the fee-shifting (“loser pays”) provisions which expose borrowers to excessive arbitration and appeal costs . . . , and because the arbitration clause is excessively one-sided and lacks mutuality in that it preserves access to the courts for the lender while prohibiting joinder of claims and class actions on the part of borrowers and restricts what claims of borrowers can be pursued in civil court.

Defendants appealed, and a divided panel of the Court of Appeals reversed the trial court’s order and remanded to the trial court for entry of an order granting defendants’ motion to compel arbitration. Tillman v. Commercial Credit Loans, Inc., 177 N.C. App. 568, 629 S.E.2d 865 (2006). The COA majority held that the provisions of the arbitration agreement, “[vjiewed separately or together,” do not render it unconscionable. Id. at 582, 629 S.E.2d at 875. The dissenting opinion concluded that the trial court’s unconscionability finding was supported by the evidence and by North Carolina law, id. at 595, 629 S.E.2d at 883 (Hunter, J., dissenting), and plaintiffs filed an appeal of right as to that issue.

II. ANALYSIS

The standard governing our review of this case is that “findings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if. . . there is evidence to the contrary.” Lumbee River Elec. Membership Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219 (1983) (citation omitted). “Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.” Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 (2004). Because unconscionability is a question of law, this Court will review de novo the trial court’s conclusion that the arbitration agreement contained in plaintiffs’ loan agreements is unconscionable. See Rite Color Chem. Co. v. Velvet Textile Co., 105 N.C. App. 14, 21, 411 S.E.2d 645, 649 (1992) (citations omitted); 17A Am. Jur. 2d Contracts § 327 (2004); John N. Hutson, Jr. & Scott A. Miskimon, North Carolina Contract Law § 9-14, at 556 (2001).

In the instant case, many of the trial court’s findings are uncontested. Furthermore, after extensive review of the record, we conclude that the eight findings of fact contested by defendant are supported by competent evidence. We review several of the contested findings here. While defendants assign error to finding of fact number sixteen, supra, both plaintiffs testified they could not afford to hire an attorney to be paid on an hourly basis. In addition, contested finding of fact number nine, supra, is clearly supported by the deposition of Debra Hovatter, CitiFinancial’s General Counsel for Litigation, who testified that “[t]he company does not make loans without an arbitration provision.” Contested finding of fact number thirteen, supra, is supported by the affidavit of AAA Assistant Vice President Gerald Strathmann, who testified regarding the average compensation rates for AAA arbitrators in North Carolina. Based on our review of the record, the trial court’s findings of fact are supported by competent evidence and are therefore conclusive.

We now review the trial court’s conclusions of law de novo. Arbitration is favored in North Carolina. Cyclone Roofing Co. v. David M. LaFave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984). As with any contract, however, “equity may require invalidation of an arbitration agreement that is unconscionable.” Murray v. United Food & Commercial Workers Int’l Union, 289 F.3d 297, 302 (4th Cir. 2002). A court will find a contract to be unconscionable

only when the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and where the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.

Brenner v. Little Red Sch. House Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981) (citations omitted). An inquiry into unconscionability requires that a court “consider all the facts and circumstances of a particular case,” and “[i]f the provisions are then viewed as so one-sided that the contracting party is denied any opportunity for a meaningful choice, the contract should be found unconscionable.” Id.

The Court of Appeals has held that unconscionability is an affirmative defense, and the party asserting it has the burden of proof. Rite Color Chem. Co., 105 N.C. App. at 20, 411 S.E.2d at 649. We agree. In the instant case, plaintiffs argue that defendants, because they are seeking to compel arbitration, have the burden of showing that the parties agreed to the arbitration provision. In support of this argument, plaintiffs rely on King v. Owen, 166 N.C. App. 246, 248, 601 S.E.2d 326, 237 (2004); Milon v. Duke University, 145 N.C. App. 609, 617, 551 S.E.2d 561, 566 (2001), rev’d per curiam, 355 N.C. 263, 559 S.E.2d 789, cert. dismissed, 536 U.S. 979 (2002); and Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 272, 423 S.E.2d 791, 794 (1992), but the instant case is distinguishable. Each of those cases involved a dispute about whether an arbitration agreement had been properly executed. Here, there is no question that plaintiffs signed the agreement. Rather, the question is whether the agreement is unconscionable.

A party asserting that a contract is unconscionable must prove both procedural and substantive unconscionability. See Martin v. Sheffer, 102 N.C. App. 802, 805, 403 S.E.2d 555, 557 (1991); see also 1 James J. White & Robert S. Summers, Uniform Commercial Code § 4-7, at 315 (5th ed. 2006) [hereinafter White & Summers] (“Most courts take a ‘balancing approach’ to the unconscionability question, and . . . seem to require a certain quantum of procedural, plus a certain quantum of substantive, unconscionability.”). While this Court has never explicitly adopted this framework, we conclude that it is supported by the Court’s case law and adopt it here. In Brenner, for example, this Court determined that a contract between a parent and a private school was not unconscionable. 302 N.C. at 214, 274 S.E.2d at 211. The Court so held after considering whether there was inequality of bargaining power between the parties, whether plaintiff was “forced to accept defendant’s terms,” and whether the contract itself “was one that a reasonable person of sound judgment might accept.” Id. at 213-14, 274 S.E.2d at 211. Thus, the Court considered both the procedural and substantive aspects of the contract at issue.

According to Rite Color Chemical Co., procedural unconscionability involves “bargaining naughtiness” in the form of unfair surprise, lack of meaningful choice, and an inequality of bargaining power. 105 N.C. App. at 20, 411 S.E.2d at 648. Substantive unconscionability, on the other hand, refers to harsh, one-sided, and oppressive contract terms. Id. at 20, 411 S.E.2d at 648-49. Of course, unconscionability is ultimately “a determination to be made in light of a variety of factors not unifiable into a formula.” White & Summers, § 4-3, at 296 (emphasis omitted). Therefore, we note that while the presence of both procedural and substantive problems is necessary for an ultimate finding of unconscionability, such a finding may be appropriate when a contract presents pronounced substantive unfairness and a minimal degree of procedural unfairness, or vice versa. See Tacoma Boatbuilding Co. v. Delta Fishing Co., 28 U.C.C. Rep. Serv. (CBC) 26, 37 n.20 (W.D. Wash. 1980) (“[T]he substantive/procedural analysis is more of a sliding scale than a true dichotomy. The harsher the clause, the less ‘bargaining naughtiness’ that is required to establish unconscionability.”).

We conclude that, taken together, the oppressive and one-sided substantive provisions of the arbitration clause at issue in the instant case and the inequality of bargaining power between the parties render the arbitration clause in plaintiffs’ loan agreements unconscionable.

A. PROCEDURAL UNCONSCIONABILITY

In the instant case, the trial court did not explicitly conclude that the facts supported a finding of procedural unconscionability. We note, however, that the trial court made the following finding of fact, which is supported by evidence in the record: “[Mrs.] Tillman and [Mrs.] Richardson were rushed through the loan closings, and the Commercial Credit loan officer indicated where [Mrs.] Tillman and [Mrs.] Richardson were to sign or initial the loan documents. There was no mention of credit insurance or the arbitration clause at the loan closings.” In addition, defendants admit that they would have refused to make a loan to plaintiffs rather than negotiate with them over the terms of the arbitration agreement. Finally, the bargaining power between defendants and plaintiffs was unquestionably unequal in that plaintiffs are relatively unsophisticated consumers contracting with corporate defendants who drafted the arbitration clause and included it as boilerplate language in all of their loan agreements. We therefore conclude that plaintiffs made a sufficient showing to establish procedural unconscionability.

B. SUBSTANTIVE UNCONSCIONABILITY

The trial court found the arbitration clause to be substantively unconscionable because (1) the arbitration costs borrowers may face are “prohibitively high”; (2) “the arbitration clause is excessively one-sided and lacks mutuality”; and (3) the clause prohibits joinder of claims and class actions. We agree that here, the collective effect of the arbitration provisions is that plaintiffs are precluded from “effectively vindicating [their] . . . rights in the arbitral forum.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000).

In Green Tree, the United States Supreme Court recognized that “the existence of large arbitration costs” could serve as the basis for holding an arbitration clause to be unenforceable. Id. The Court ultimately held that the plaintiff in that case had not sufficiently demonstrated “the likelihood of incurring such costs” because the arbitration clause in question did not specify who would bear the costs of arbitration. 531 U.S. at 91-92. The Court disregarded evidence presented by the plaintiff about the average arbitral fees of the American Arbitration Association (“AAA”) because there was no factual showing that AAA would be conducting the arbitration or that the plaintiff would be required to pay the fees. Id. at 90 n.6.

Similarly, the Fourth Circuit has held that any inquiry into arbitration costs must be “a case-by-case analysis that focuses . . . upon the claimant’s ability to pay the arbitration fees and costs, the expected cost differential between arbitration and litigation in court, and whether that cost differential is so substantial as to deter the bringing of claims.” Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir. 2001). In Bradford, the court found that costs were not prohibitive because the plaintiff “offered no evidence that he was unable to pay the $4,470.88 [fee], or that the fee-splitting provision deterred him from pursuing his statutory claim or would have deterred others similarly situated.” Id. at 558. Indeed, the court noted that the plaintiff’s base salary at the time of the actions which led him to instigate the lawsuit in question was $115,000 per year. Id. at 558 n.6.

The instant case is distinguishable. In terms of ability to pay, the evidence of plaintiffs’ limited financial means is uncontested. Plaintiffs live paycheck to paycheck and usually have very little money left in their bank accounts after paying their monthly bills. The arbitration clause specifies that AAA will administer any arbitration between the parties to the loan agreement, and evidence in the record indicates that the average daily rate of AAA arbitrator compensation in North Carolina is $1,225.00. According to the arbitration clause, when an arbitration lasts more than eight hours, the loser will be charged with costs. Moreover, the clause provides for a de novo appeal before a panel of three arbitrators, and again, the loser pays the costs. For example, at the average rate, a two-day appeal would cost the losing party $7,350.00 in arbitrator fees. Plaintiffs simply do not have the resources to risk facing these kinds of fees. See Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or. App. 553, 574, 152 P.3d 940, 952 (2007) (concluding that a cost-sharing provision in an arbitration clause was “sufficiently onerous to act as a deterrent to [the] plaintiffs’ vindication of their claim”).

Bradford also rightly notes that the cost of arbitration must be compared with the cost of litigation. Id. at 556. As demonstrated above, paying for arbitrators is a significant cost that is simply not faced in filing a lawsuit in court. See Vasquez-Lopez, 210 Or. App. at 574, 152 P.3d at 952 (“regardless of whether filing fees are relatively equal in court and arbitration, the fact remains that most of the cost involved in an arbitration will be the arbitrator’s fees; in court, by contrast, neither party has to pay for the judge”). The trial court also found that

[t]he only realistic means by which persons in the position of Plaintiffs can prosecute their claims is by entering into a contingency fee agreement with lawyers willing to advance the costs and expenses of the litigation and with the law firm assuming the risk that there might be no recovery.

Because plaintiffs’ damage amounts are so low (under $4,500 each), the trial court found that it is “unlikely that any attorneys would be willing to accept the risks attendant to pursuing [these] claims.” The likelihood that an attorney would take a case controlled by the arbitration clause at issue here is even less because the arbitration clause prohibits the joinder of claims and class actions. Therefore, neither attorneys nor plaintiffs are able to share the risks attendant to pursuing this litigation.

Bradford finally instructs that in order to find unenforceability due to excessive costs, the cost differential between litigation and arbitration must be so great that it deters individuals from bringing claims under the arbitration clause. Id. at 556. Evidence in the record indicates that no arbitrations have been brought under the clause that defendant has included in over 68,000 loan agreements in North Carolina. Based on this evidence and the above analysis, it appears that the combination of the loser pays provision, the de novo appeal process, and the prohibition on joinder of claims and class actions creates a barrier to pursuing arbitration that is substantially greater than that present in the context of litigation. We agree with the trial court that “ [defendant's arbitration clause contains features which would deter many consumers from seeking to vindicate their rights.”

Defendants argue that the costs analysis is irrelevant because the terms of the arbitration agreement have been superceded by AAA’s Consumer Rules, which became effective on 1 March 2002. More specifically, defendants state that they are “willing to arbitrate [plaintiffs’] claims under [these rules].” This argument is unpersuasive. First, the arbitration clause itself provides that “[t]he terms of this Provision shall control any inconsistency between the rules of the [AAA] and this Provision.” Second, this Court, the Fourth Circuit, and other courts have held that it is inappropriate to rewrite an illegal or unconscionable contract. See Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 676 (6th Cir. 2003) (“In considering the ability of plaintiffs to pay arbitration costs under an arbitration agreement, reviewing courts should not consider after-the-fact offers by employers to pay the plaintiff’s share of the arbitration costs where the agreement itself provides that the plaintiff is liable, at least potentially, for arbitration fees and costs.”); Murray, 289 F.3d at 304 (“The arbitration agreement is unenforceable as written and [the union] may not rewrite the arbitration clause and adhere to unwritten standards on a case-by-case basis in order to claim that it is an acceptable one.”); Kinkel v. Cingular Wireless, LLC, 223 111. 2d 1, 13-14, 857 N.E.2d 250, 259 (2006) (“[A] defendant’s after-the-fact offer to pay the costs of arbitration should not be allowed to preclude consideration of whether the original arbitration clause is unconscionable.”); Whittaker Gen. Med. Corp. v. Daniel, 324 N.C. 523, 528, 379 S.E.2d .824, 828 (1989) (“The courts will not rewrite a contract if it is too broad but will simply not enforce it.”). We agree with the Sixth Circuit’s observation that because the underlying concern is whether individuals, upon reading an arbitration agreement, will be deterred from bringing a claim, courts must consider the agreement as drafted. See Morrison, 317 F.3d at 676-77.

The second concern plaintiffs raise is the one-sidedness of the arbitration clause contained in their loan agreements. In Brenner, this Court held that when “the provisions [of a contract] are . . . viewed as so one-sided that the contracting party is denied any opportunity for a meaningful choice, the contract should be found unconscionable.” 302 N.C. at 213, 274 S.E.2d at 210.

In the instant case, the clause excepts from arbitration foreclosure actions and actions in which the total damages, costs, and fees do not exceed $15,000. Plaintiffs argue that the arbitration clause preserves defendants’ ability to pursue its claims in court while denying plaintiffs that same option. Evidence in the record indicates that since 1996, defendants have brought over 2,000 collection actions with an average “payoff’ of under $7,000. In addition, it appears that defendants have not initiated arbitration in North Carolina. In other words, every time defendants have taken legal action against a borrower, they have managed to avoid application of the arbitration clause. This arbitration clause is not as egregious as some that specifically carve out an exception for the corporate drafter of the clause to pursue collection actions in court. See, e.g., Arnold v. United Cos. Lending Corp., 204 W. Va. 229, 233, 235-37, 511 S.E.2d 854, 858, 860-62 (1998). Practically speaking, howéver, the exceptions appear to be designed far more for the benefit of defendants than for plaintiffs. The one-sidedness of the clause therefore contributes to our overall conclusion that it is unconscionable.

Plaintiffs finally argue that the arbitration clause is unconscionable because it prohibits joinder of claims and class actions. Plaintiffs correctly note that an increasing number of courts have found class action waivers in arbitration clauses substantively unconscionable. See, e.g., Scott v. Cingular Wireless, 160 Wn.2d 843, 850-51, 161 P.3d 1000, 1004 (2007) (citing such cases from sixteen jurisdictions). Taken alone, such a prohibition may be insufficient to render an arbitration agreement unenforceable, see, e.g., Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir. 2002), but Brenner instructs that an unconscionability analysis must consider all of the facts and circumstances of a particular case, 302 N.C. at 213, 274 S.E.2d at 211. Therefore, the trial court correctly concluded that a prohibition on joinder of claims and class actions “is a factor to be considered in determining whether an arbitration provision is unconscionable.” Accord Kristian v. Comcast Corp., 446 F.3d 25, 53-61 (1st Cir. 2006); Ting v. AT&T, 319 F.3d 1126, 1150 (9th Cir. 2003); cert. denied, 540 U.S. 811 (2003); Leonard v. Terminix Int’l Co., 854 So. 2d 529, passim (Ala. 2002) (per curiam); State ex rel. Dunlap v. Berger, 211 W. Va. 549, 562-64, 567 S.E.2d 265, 278-80, cert. denied, 537 U.S. 1087 (2002).

In the instant case, the prohibition on joinder of claims and class actions affects the unconscionability analysis in two specific ways. First, the prohibition contributes to the financial inaccessibility of the arbitral forum as established by this arbitration clause because it deters potential plaintiffs from bringing and attorneys from taking cases with low damage amounts in the face of large costs that cannot be shared with other plaintiffs. Second, the prohibition contributes to the one-sidedness of the clause because the right to join claims and pursue class actions would benefit only borrowers. See, e.g., Szetela v. Discover Bank, 97 Cal. App. 4th 1094, 1101, 118 Cal. Rptr. 2d 862, 867 (2002), cert. denied, 537 U.S. 1226 (2003); Vasquez-Lopez, 210 Or. App. at 569, 152 P.3d at 949-50 (quoting Anatole France’s observation in The Red Lily that “ ‘the majestic equality of the laws forbid[s] rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread’ ” and noting that “[although the arbitration rider with majestic equality forbids lenders as well as borrowers from bringing class actions, the likelihood of the lender seeking to do so against its own customers is as likely as the rich seeking to sleep under bridges.”).

In conclusion, we hold that the provisions of the arbitration clause, taken together, render it substantively unconscionable because the provisions do not provide plaintiffs with a forum in which they can effectively vindicate their rights. See Green Tree, 531 U.S. at 90.

At oral argument, defendants asserted that any provisions of the arbitration clause found to be unconscionable could be stricken because the clause includes a severability provision. Severing the unenforceable provisions of the arbitration clause at issue in the instant case would require the Court to rewrite the entire clause, and we decline to do so here.

Ultimately, based on the facts and circumstances of this case, we hold that the arbitration clause in plaintiffs’ loan agreements is unconscionable and therefore unenforceable. The inequality of bargaining power between the parties and the oppressive and one-sided nature of the clause itself lead us to this conclusion. Through the arbitration clause at issue in this case, defendants have not only unilaterally chosen the forum in which they want to resolve disputes, but they have also severely limited plaintiffs’ access to the forum of their choice. Defendants argue that finding this clause to be unconscionable would be “hostile to arbitration.” We disagree but at the same time reaffirm this Court’s previous statements acknowledging the State’s strong public policy favoring arbitration. However, this particular arbitration clause simply does not allow for meaningful redress of grievances and therefore, under Green Tree, must be held unenforceable.

For the foregoing reasons, the Court of Appeals decision reversing the trial court’s order denying defendants’ motion to compel is reversed.

REVERSED.

1 . Plaintiffs filed this suit as a class action, but the record contains no indication that the trial court certified the class.

2 . Commercial Credit Corp., Citigroup, Inc., CitiFinancial, Inc., and Citicorp, Inc. are corporate parents or affiliates of Commercial Credit Loans, Inc. (n/k/a CitiFinancial Services, Inc.). While Commercial Credit Corp., Citigroup, Inc., CitiFinancial, Inc., and Citicorp, Inc. remain as defendants in the underlying case, for purposes of the issue on appeal before this Court, the term “defendants” will refer only to Commercial Credit Loans, Inc. (n/k/a CitiFinancial Services, Inc.) and CitiFinancial, Inc.