FYI: 4th Cir Holds Limited Discovery Did Not Waive Right to Arbitrate, Arbitration Clause in Separate Agreement Still Applied

Reversing a ruling by the lower court, the U.S. Court of Appeals for the Fourth Circuit recently held that the assignee of a retail installment sale contract did not waive its right to enforce an arbitration provision contained in a separate used-car purchase agreement.

 

The Court held that: (1) the purchase and financing transaction involved interstate commerce and thus required application of the Federal Arbitration Act; (2) the used-car purchase agreement should be interpreted together the RISC, despite an integration clause in the RISC; and (3) plaintiff consumer had suffered no actual prejudice as a result of the creditor's delay in moving to enforce the arbitration agreement after conducting limited discovery. 

 

A copy of the opinion is available at:   http://www.ca4.uscourts.gov/Opinions/Published/111597.P.pdf

 

Plaintiff consumer ("Consumer") bought a used car from a dealer, executing a retail installment sale contract (the "RISC") to finance the purchase.   As part of the transaction, Consumer also executed a separate contract (the "Buyer's Order") containing the terms of sale and an agreement to arbitrate.  A limiting clause in the arbitration agreement provided that assignees of certain monetary claims may not compel arbitration.

 

The RISC did not include an arbitration provision, but contained an integration clause stating that the RISC constituted the entire agreement between the parties. 

 

The dealer assigned the RISC to defendant company ("Assignee") immediately after the sale.  A short time later, Consumer returned the car to the dealership, claiming that the car was defective.  Consumer had never made a payment on the car loan.  Assignee then repossessed the car, sold it at a loss, and sought to collect the unpaid loan balance from Consumer. 

 

Consumer filed a putative class action in state court against Assignee, alleging violations of Maryland consumer protection law based on unfair business practices and undisclosed finance charges.  Assignee removed the case to federal court and both parties engaged in limited discovery according to a mutually acceptable discovery plan. 

 

Waiting for a court decision applying the U.S. Supreme Court's ruling on mandatory class arbitration, Assignee moved six and a half months later to compel non-class arbitration of Consumer's claims against it.  See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. __, 130 S. Ct. 1758, 1775 (2010)(holding that the Federal Arbitration Act does not permit a party to be compelled to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so).  

 

The lower court denied Assignee's motion, ruling that the underlying loan transaction was governed by state law because it was a purely intrastate transaction and that, even though the Buyer's Order and the RISC formed an enforceable arbitration agreement governing Consumer's claims, Assignee had waived its right to compel arbitration due to the unjustified delay in filing its motion and because it had engaged in discovery.   Assignee appealed.

 

The Fourth Circuit reversed and remanded.

 

As you may recall, the FAA operates to enforce arbitration provisions included in "a contract evidencing a transaction involving interstate commerce."  9 U.S.C. § 2.  See also Whiteside v. Teltech Corp., 940 F.2d 99, 102 (4th Cir. 1991)(application of the FAA requires four elements:  "(1) the existence of a dispute between the parties, (2) a written agreement that includes an arbitration provision which purports to cover the dispute, (3) the relationship of the transaction, which is evidenced by the agreement, to interstate or foreign commerce, and (4) the failure, neglect or refusal of the defendant to arbitrate the dispute."). 

 

In addition, the FAA permits appellate review of orders that fall within the FAA's exception to the final judgment rule.  See 9 U.S.C. §§ 16(a)(1)(A)-(B) (providing for appeals from orders refusing to stay proceedings pending arbitration or orders denying a petition to require arbitration pursuant to an agreement between the parties); 9 U.S.C. § 3 (requiring federal court to stay proceedings pending completion of arbitration in accordance with an agreement if "the applicant for the stay is not in default in proceeding with such arbitration."); 9 U.S.C. § 4 (allowing party to petition federal court for order to compel arbitration pursuant to arbitration agreement).

 

In concluding that the transaction here involved interstate commerce, the Fourth Circuit ruled that the FAA applied to the transaction, because the funds for Consumer's car loan originated from a foreign state.  In so ruling, the Court noted, first, that the FAA does not require the party invoking the FAA to prove the interstate nature of the transaction and, second, that the FAA applies where "in the aggregate the economic activity in question would represent 'a general practice . .  . subject to federal control.'"  See Maxum Founds., Inc. v. Salus Corp., 779 F.2d 974, 978 n.4 (4th Cir. 1985); Citizens Bank v. Alafabco, Inc.,   539 U.S. 52, 56-57 (2003).  The Court of Appeals accordingly ruled that the lower court erred in declining to apply the FAA to the transaction.

 

Turning to the question whether Assignee's motion adequately invoked Section 3 or 4 of the FAA to create appellate jurisdiction, the Court relied on an earlier opinion to conclude that even though Assignee's motion did not specifically reference Section 3 or 4, the motion clearly sought enforcement of the arbitration agreement in the Buyer's Order and was thus immediately appealable.  See Wheeling Hosp. Inc., v. Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577 (4th Cir. 2012)(focusing on whether motion shows clear intention to seek enforcement of an arbitration clause rather than on adherence to a specific form or explicit reference to Section 3 or 4).

 

Next, the Fourth Circuit explored whether there was a valid arbitration agreement between the parties and whether Assignee was in fact in default of its right to enforce that agreement.  In so doing, the Court applied state-law contract-interpretation principles, ultimately concluding that the parties' intent controlled the effect of the RISC's integration clause.  Specifically, the Court agreed with the district court that the Buyer's Order and the RISC were intended to constitute a single transaction and should thus be interpreted together under Maryland law.  In so ruling, the Court noted that the Buyer's Order was expressly "conditioned upon approval of [the] retail installment sale contract and that it defined the "Agreement" as encompassing other documents made in connection with the Buyer's Order. 

 

Moreover, turning to a "carve-out" in the arbitration clause regarding assignees of the RISC, the Court rejected Consumer's argument that Assignee could not enforce the arbitration agreement because it sought to arbitrate a "purely monetary claim" as the assignee of that claim.  Ruling that the carve-out for assignees applied only to the forced arbitration of such monetary claims, the Court concluded that the carve-out did not pertain to assignees of the entire RISC itself.  As the Court explained, the carve-out "indicates that a person to whom an otherwise-qualifying monetary claim has been assigned cannot enforce arbitration.  [Assignee] is not the assignee of any monetary claim, but instead is the assignee of the entire agreement embodied in the RISC." Accordingly, the Court ruled that the arbitration provision in the Buyer's Order was enforceable by Assignee as assignee of the RISC. 

 

Finally, in analyzing whether Assignee waived its right to enforce the arbitration agreement due to its delay in moving to compel arbitration, the Court noted that Maryland arbitration law was inapplicable to this case and that Section 3's reference to a party "in default" losing its right to compel arbitration was not tantamount to a waiver of that right in light of the federal policy favoring arbitration.   The Court stressed that the opposing party must suffer actual prejudice before a litigant will be deemed to default on the right to invoke the FAA.  See Microstrategy , Inc. v. Lauricia, 268 F.3d 244, 249 (4th Cir. 2001).

 

Applying this test, the Fourth Circuit concluded that Consumer did not suffer actual prejudice in this case, because the six and a half-month delay was relatively short and Assignee had only engaged in minimal litigation activities before moving to compel arbitration and had not gained any advantage thereby.  In particular, the Court pointed out that Assignee had not filed any dispositive motions and that Consumer had also engaged in similar discovery activities.    The Court therefore ruled that participation in discovery was not sufficient to trigger default under the FAA.

 

Accordingly, because Consumer had failed to establish the prejudice necessary to finding that Assignee defaulted on its right to enforce the arbitration agreement under the FAA, the Fourth Circuit reversed and remanded with directions to refer the claims to arbitration.

 

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
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Mobile: (312) 493-0874
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FYI: OH Sup Ct Rules "365/360" Computation Method Did Not Contradict Interest Rate Term in Note

The Ohio Supreme Court recently held that language in a promissory note specifying, on the one hand, that the note was subject to an annual interest rate based on a certain index, but on the other also stated that the rate would be computed on a "365/360" basis (which would result in more interest being paid than other calculation methods), was not ambiguous or contradictory. 

 

A copy of the opinion is available at:  http://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2012/2012-Ohio-5369.pdf.

 

Plaintiff company ("Company") obtained a commercial loan from defendant bank ("Bank").  The promissory note memorializing the loan agreement stated that the interest rate on the loan would adjust at certain specified dates and that those changes would be based on variations in the interest rates charged by one of the Federal Home Loan Banks.  Under the heading "Variable Interest Rate," the promissory note specified that the initial interest rate on the loan was 325 basis points over a referenced index, resulting in an initial annual interest rate of 8.93%.  

 

In a separate section of the note, under the heading "Payment," the note explained the interest calculation method.  Specifically, the note stated "[t]he annual interest rate for this Note is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding."

 

Company filed a putative class action, alleging that Bank had breached its contract by charging an interest rate above the rate stated in the promissory note.  Company claimed that the note fixed the rate of interest at 8.93% per annum and that Bank was charging more interest than what was expressed in the promissory note by charging a rate calculated by the 365/360 method rather than an annual (365-day) rate.   Company argued that charging interest according to the 365/360 method resulted in Company paying more interest than it would otherwise pay according to an 365/365 method. 

 

Bank moved for summary judgment, which the trial court granted.  The trial court concluded that the note was clear in establishing the 365/360 interest calculation or computation method. 

 

The Ohio Court of Appeals reversed, ruling that there was a genuine issue of material fact as to which interest rate was used in the note.  Bank appealed.  The Ohio Supreme Court reversed, ruling that, though inartfully drafted, the description of the interest calculation method used was not ambiguous when read in context.

 

Noting that banks charge interest on a daily basis, and that Company's assertion was correct that, because of the 365/360 interest calculation method, Company was paying a higher effective interest rate over the course of a year than it would otherwise had it paid on an annual basis, the Court ruled nevertheless that the clause defining the calculation method was not ambiguous.

 

In so ruling, the Court observed that the clause:  "The annual interest rate for this Note is computed on a 365/360 basis," was imprecise, because the actual interest rate was not in fact based on the 365/360  method.  Rather, as the Court pointed out, the note specified in a separate provision that the annual interest rate was based on the rates set by a particular Federal Home Loan Bank. 

 

As the Ohio Supreme Court explained, the detailed definition of the 365/360 method immediately following the reference to that computation method "was not so confusing that a reasonable person would think that the rate set by the note would be calculated using something other than the 365/360 method."  It is clear that the term being defined is not the annual interest rate but rather the method of computing regular interest payments." 

 

The Court ruled that, because a clause defining the term "365/360" immediately followed a reference to  the interest calculation method used, a reasonable person would understand that the term being defined was not in fact the "rate," but rather the method of computing interest payments.

 

Accordingly, ruling that the clause clearly was intended to define the method to be used to calculate interest payments, the Court reversed the judgment of the court of appeals, and ruled in favor of the Bank.

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: 11th Cir Rules Against Bank on Fraudulent Wire Transfer "Security Procedure" Safe Harbor

The U.S. Court of Appeals for the Eleventh Circuit recently held that a bank may be liable for a supposedly fraudulent wire transfer, ruling that the parties' agreed-upon security procedure in a funds transfer agreement did not include the additional procedures that the unilaterally bank followed in processing payment orders, and thus did not meet the Florida UCC's statutory definition of "security procedure." 

 

The Court therefore ruled that the Florida UCC's "safe-harbor provision," the applicability of which hinged on the agreed-upon security procedure meeting the statutory definition and which would shift the risk of loss to the customer, did not apply to the wire transfer, and that summary judgment in favor of the bank was error.

 

A copy of the opinion is available at: http://www.ca11.uscourts.gov/opinions/ops/201115804.pdf.

 

Plaintiff, a banking customer ("Customer"), opened an account with a bank ("Bank") in Florida.  Customer and Bank agreed to subject the account to Bank's "funds transfer agreement" ("FTA"), according to which Bank used a security procedure for processing payment orders to verify the authenticity of the order, and to detect errors in the transmission or content.  Customer was the only authorized representative on the account for purposes of funds transfers, and was required under the FTA to sign any payment orders delivered to Bank in person.

Customer visited Bank and deposited money into his account.  Shortly after his visit to Bank, Customer left the country.  Supposedly while Customer was en route, however, someone purporting to be Customer visited Bank, and submitted a written payment order for over $329,000.  The payment order was processed by an employee of Bank who confirmed (1) the information on the payment order, (2) the identity of the person via an identification document provided by him, (3) the sufficiency of funds in the account, (4) the existence of the FTA for the account, and (5) authenticity of the signature on the payment order.  The Bank employee also obtained written approval from two branch officers, who took additional measures to ensure the authenticity of the payment order.  The funds were subsequently transferred to an unknown beneficiary in a foreign country.

About two months after the payment order was processed, Customer supposedly first learned of the payment order and transfer.  Customer then filed an action against Bank in state court seeking to recover the funds transferred from his account.  Bank removed to federal court and moved for summary judgment, arguing as an affirmative defense that, under the "safe-harbor" provision of Florida's UCC Article 4A, Customer bore the risk of loss.  Customer moved for partial summary judgment, claiming that the safe-harbor defense did not apply.

The lower court granted Bank's motion for summary judgment, ruling that the safe-harbor provision shifted the risk of loss to Customer because the parties' agreed-upon security procedure satisfied the definition of "security procedure" in Florida's version of the Uniform Commercial code, the procedure was commercially reasonable, and Bank followed the procedure in good faith. 

 

Customer appealed.  The Eleventh Circuit reversed

 

As you may recall, the term "security procedure" is defined in Florida's version of Article 4A the Uniform Commercial Code as a "procedure established by agreement of a customer and a receiving bank for the purpose of:  (1) Verifying that a payment order or communication amending or canceling a payment order is that of the customer; or (2) Detecting error in the transmission or the content of the payment order or communication."  Fla. Stat. § 670.201 ("Section 201").  Section 201 also states that "[c]omparison of a signature on a payment order or communication with an authorized specimen signature of the customer is not by itself a security procedure."

 

In addition, a so-called "safe-harbor provision" in Florida's version of Article 4A provides in pertinent part that a bank may shift the risk of loss to the customer by showing that the parties agreed to a security procedure that is commercially reasonable and that the bank followed in good faith. Fla. Stat. § 670.202(2) ("Section 202").  See also Fla. Stat. § 670.102 (governing the rights, duties and liabilities of banks and customers with respect to wire transfers).

 

Moreover, the FTA between Customer and Bank provided that: (1) "written Payment Orders shall be delivered by an Authorized Representative . . . to the Bank either in original form in person or by mail, or by facsimile transmission.  Each written Payment Order must be signed by at least one Authorized Representative . . . "; (2) the applicable security procedure is that procedure selected by Customer; (3) "the use of the Security Procedure . . . shall be the sole security procedure required with respect to any Order"; (4) the bank "may use . . . any other means to verify any Payment Order or related instrument"; and (5) any additional or different security procedures were to be specified in writing, signed by Bank, and made a part of the FTA.  FTA § 5.

 

Noting the three requirements of Section 202 (an agreed-upon security procedure, the commercial reasonableness of that procedure, and good faith compliance with that procedure on the part of the bank), the Eleventh Circuit pointed out in part that the first requirement must meet the definition of  the term "security procedure" in Section 201 in order for the safe-harbor provision in Section 202 to apply.  The Court reasoned that the applicability of the safe-harbor provision in Section 202 to the wire transfer in this case hinged on the scope of the agreed-upon security procedure.

 

Turning therefore to the scope of the agreed-upon security procedure, the court focused on the FTA's express definition of "security procedure," which, the Court explained, was determined by Customer's selection of the security option that expressly limited the meaning of the term to a written payment order delivered and signed by an authorized representative.   The Court supported this interpretation by pointing out that the FTA further referred to the selected security procedure as the "sole security procedure required with respect to any Order," and that there was no writing modifying the security procedure Customer had selected. 

 

In so ruling, the Court rejected the lower court's interpretation that Bank could use other procedures in addition to the one Customer selected, despite the provision in the FTA that permitted Bank to use "any other means" to verify payment orders.  As the court explained, "[the] language does not show that the "any other means" is a security procedure.  In fact, it shows just the opposite, as §5(iii) [of the FTA] intentionally sets "any other means" apart from the defined "Security Procedure."

 

Moreover, agreeing with Customer that the security procedure he selected did not satisfy Section 201's definition of a security procedure because it did not even require a signature comparison, but only required that payment orders delivered in person be in writing and signed by Customer, the Eleventh Circuit ruled  that the agreed-upon procedure could not satisfy Section 201.  In so ruling, the Court noted that the selected security procedure did not require, for example, Bank to check the identification of the person presenting the payment order to ensure that Customer was in fact the one presenting the order. 

 

Accordingly, the Court ruled that the inability of the agreed-upon security procedure to meet Section 201's definition of a security procedure precluded application of Section 202's safe-harbor provision to shift the risk of loss to Customer.  The Court thus reversed the district court's grant of summary judgment in favor of the Bank.

 

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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FYI: Cal App Ct Holds Failure to Designate Trustee in DOT Did Not Invalidate F/C Sale, Possession of Note Not Required, Borrower's Failure to Tender Fatal

The California Court of Appeal, Second District, recently held that the failure to designate a trustee in a deed of trust was irrelevant to the validity of a foreclosure sale, ruling that a substitute trustee appointed prior to the foreclosure by MERS, the beneficiary under the trust deed, was authorized to convey title upon the borrowers' default. 

 

The Court also ruled that: (1) California's statutory nonjudicial foreclosure law does not require the foreclosing party to have a beneficial interest in or physical possession of the promissory note; and (2) Borrowers' claims failed because they failed to allege tender of the amounts due and owing under the loan, a prerequisite to setting aside a foreclosure.

 

A copy of the opinion is available at:  http://www.courts.ca.gov/opinions/documents/B235890.PDF.

 

Plaintiffs borrowers ("Borrowers") defaulted on their home loan that was secured by a deed of trust.  The deed of trust did not name a trustee, but designated Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary, allowing MERS "the right to foreclose and sell the Property, and to take any action required of Lender including, but not limited to, releasing and canceling the [trust deed]."

 

After the default, MERS appointed a substitute trustee ("Substitute Trustee"), which recorded a notice of default.  MERS also assigned its beneficial interest in the trust deed to a mortgage loan servicer ("Servicer").  The Loan Servicer in turn assigned its beneficial interest in the deed of trust to the loan owner ("Loan Owner"), which ultimately purchased Borrowers' property at the ensuing foreclosure sale.

 

Borrowers later filed a complaint to set aside the foreclosure, seeking actual and punitive damages.  Borrowers alleged in part that the foreclosure was improper, as the trust deed failed to name a trustee.  Borrowers also sought cancellation of all recorded documents related to the foreclosure.  The Loan Servicer, Substitute Trustee and Loan Owner (collectively, "Respondents") demurred and requested that the lower court take judicial notice of certain recorded foreclosure documents, which the lower court granted.  Borrowers did not object to the request for judicial notice.  Sustaining the demurrer, the trial court allowed Borrowers to amend their complaint.

 

Following the filing of the first amended complaint, Respondents again demurred and requested that the lower court take judicial notice of the foreclosure documents.   For the second time, Borrowers failed to object to the request for judicial notice. 

 

Sustaining without leave to amend the demurrers of both Loan Servicer and Substitute Trustee, the trial court dismissed the complaint as to these two parties, concluding that omission of a trustee on a trust deed was "no impediment to enforcement of the Trust Deed. . . ."   In addition, ruling that Loan Owner's purchase of the property was proper and that Borrowers had failed to plead a viable ownership interest in the property, the lower court granted Loan Owner's request for judicial notice and sustained its demurrer with leave to amend.   The trial court reasoned that, as the beneficiary under the deed of trust, MERS had the authority to name a substitute trustee and assign its interest to the Loan Servicer despite its lack of any ownership interest under the trust deed.  The court noted, moreover, that Borrowers failed to tender or offer to tender the funds still owing on the loan.

 

In their second amended complaint against Loan Owner, Borrowers again alleged various claims for cancellation of the foreclosure documents and wrongful foreclosure.    Loan Owner demurred once more and requested that the court take judicial notice of the same foreclosure documents. 

 

At this point, borrowers objected for the first time to the request for judicial notice.  Accordingly, the court overruled the objections and sustained the demurrer without leave to amend. 

 

The lower court dismissed.  Borrowers appealed.  The Court of Appeal affirmed.

 

Noting the issue was one of first impression in California, the Court of Appeal rejected Borrowers' assertion that the failure to designate a trustee in the deed of trust turned the security instrument into a "mortgage" requiring that foreclosure occur only through judicial foreclosure.  In so ruling, the appellate court relied on rulings in other jurisdictions to conclude that a valid trust is created notwithstanding the failure to designate a trustee.  See, e.g., In re Bisbee, 157 Ariz. 31, 754 P.2d 1135 (1988)(ruling that a trust deed is essentially a mortgage giving a trustee the power to convey upon default and that absence of a valid trustee requires the appointment of a successor trustee to take actions required under the instrument); Mid City Management Corp. v. Loewi Realty Corp., 643 F.2d 386, 388 (5th Cir. 1981)(upholding nonjudicial foreclosure sale held by substitute trustee where trust deed failed to name a trustee).

 

In addition, observing that Borrowers' mischaracterized the nature of "title" provided by a deed of trust, as opposed to that conveyed by a grant deed, the Appellate Court also pointed out that a trustee under a deed of trust holds merely the right to convey upon a borrower's default but carries no other incidents of ownership of the property.

 

Turning next to Borrowers' argument that Respondents lacked standing to foreclose because Respondents were not the "holder in due course" of the note, the Court noted that California's nonjudicial foreclosure law does not require that a foreclosing party have a beneficial interest in or physical possession of the note and that under the foreclosure scheme "a trustee, mortgagee, or beneficiary, or any of their authorized agents" may institute foreclosure by recording a notice of default.  See Cal Civil Code § 2924(a)(1); Debrunner v. Deutsche Bank Nat'l Trust Co., 204 Cal. App. 4th 433, 440-41 (2012).  Accordingly, the Court ruled that the Substitute Trustee had statutory authority to commence foreclosure.

 

Finally, the Appellate Court also concluded that Borrowers' claims failed because they did not allege tender of the amount due under the loan.  Citing the general rule that a debtor must allege tender of the amount of the debt in order to set aside a foreclosure based on irregularities in the sale, the Court noted that Borrowers had failed to allege any facts implicating exceptions to the tender rule, such as invalidity of the underlying debt, counterclaim or set-off against the beneficiary or a void deed of trust.

 

The Court thus ruled that, in the absence of an allegation of tender or offer of tender, the lower court properly sustained the demurrers without leave to amend.  The Court of Appeal affirmed the lower court's rulings in all respects.

Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com
 

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