by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
"We anticipate that the court will engage counsel with more patience on remand."
I assume this is not something a trial court wants to see at the end of an opinion from an appellate court. But, this was precisely how the Appellate Division ended its decision in Midland Funding v. Bordeaux. The case, which involved the enforceability of an arbitration provision, is notable as much for the manner in which it was decided by the trial court as the legal issues at play in the decision.
In Midland Funding, plaintiff sued defendant over $1,018.04 in consumer debt that plaintiff purchased from the original creditor. In response, defendant denied liability and asserted a counterclaim alleging plaintiff violated the Fair Debt Collections Practices Act. During discovery, defendant moved to compel plaintiff to answer interrogatories. Plaintiff responded with a motion to compel arbitration. On the eve of the return date of that motion, defendant moved for summary judgment. Oral argument on these motion was adjourned for approximately 30 days.
When oral argument was eventually held, it did not last long. The Appellate Division noted that the transcript "show[ed] that the oral argument hearing began at 9:10 a.m. and concluded at 9:11 a.m." In the span of a minute, the trial court concluded that defendant's credit card agreement "contain[ed] an arbitration agreement," therefore "[i]t's going to arbitration." The trial court also denied defendant's summary judgment motion without explanation and declared that defendant's motion to compel answers to interrogatories was moot.
Under Rule 2:5-1(b), the trial court later placed supplementary findings of fact on the record, but the Appellate Division still reversed. It held that the only "evidence of the arbitration agreement's existence" was "two single-spaced, photocopied pages," purportedly from defendant's credit card agreement. While these pages contained an "Arbitration Notice," neither reflected defendant's agreement to be bound by this provision or her signature. According to the Appellate Division, the "only thing that connect[ed] the document to th[e] case [was] a certification signed by a 'Legal Specialist' employed by plaintiff in St. Cloud, Minnesota." Although the "Legal Specialist" certified that the two pages were a "true and correct copy" of the credit agreement provided to plaintiff by the original creditor, the Appellate Division noted that the "Legal Specialist" did not certify that the two pages were the "complete credit application" or that "defendant agreed to be bound by the provisions contained therein" (emphasis in original).
Based on the limited record available to it, the Appellate Division held that plaintiff had not met its burden of proving that defendant agreed to arbitrate or that she had full knowledge of the rights available to her and knowingly waived those rights when she signed the agreement. Both are required under the New Jersey Supreme Court's Atalese v. U.S. Legal Serv. Grp., L.P. decision (a decision I have written about here, here, and here). Therefore, the Appellate Division reversed the trial court and remanded the case back to the trial court with the foreboding warning set forth at the outset of this post — "We anticipate that the court will engage counsel with more patience on remand."
Pete's Take 