Opinion
No. COA05-924.
Filed June 6, 2006.
1. Appeal and Error — appealability — denial of motion to compel arbitration — substantial right
The denial of a motion to compel arbitration is not a final judgment but is immediately appealable because it involves a substantial right.
2. Arbitration and Mediation — unconscionability — standards
The interpretation of arbitration agreements is governed by contract principles and the parties may specify the rules under which arbitration will be conducted, but are not bound by unconscionable provisions.
3. Arbitration and Mediation — costs — not prohibitive — agreement not unconscionable
The trial court erred by concluding that the plaintiffs' arbitration costs were prohibitive and that the arbitration clause was unconscionable and unenforceable where plaintiffs did not fairly measure arbitration costs against the costs of litigation and appeal.
4. Arbitration and Mediation — class action precluded — not unconscionable
An arbitration clause was not unconscionable because it precluded a class action, and the court erred by so finding.
5. Arbitration and Mediation — mutuality — North Carolina standard
The trial court erred by finding an arbitration clause to be unconscionable based on a mutuality of obligations analysis contrary to North Carolina contract law.
Judge HUNTER dissenting.
Appeal by defendants from orders entered 28 September 2004 and 20 January 2005 by Judge Ronald L. Stephens in Vance County Superior Court. Heard in the Court of Appeals 15 March 2006.
Jones Martin Parris Tessener Law Offices, P.L.L.C., by John Alan Jones and G. Christopher Olson, for plaintiffs-appellees. Moore Van Allen, PLLC, by Jeffrey M. Young, and Rogers Hardin LLP, by Richard H. Sinkfield and Christopher J. Willis, Atlanta, Georgia, pro hoc vice, for defendants-appellants. Ellis Winters LLP, by Matthew W. Sawchak, for Amicus Curiae American Financial Services Association. Wallace Graham, P.A., by Mona Lisa Wallace and John S. Hughes, and The Jackson Law Group, PLLC, by Gary W. Jackson, for Amicus Curiae The North Carolina Academy of Trial Lawyers. Carlene McNulty, for Amicus Curiae North Carolina Justice Center. Mallam J. Maynard, for Amicus Curiae Financial Protection Law Center. Richard Frankel and F. Paul Bland, Jr., for Amicus Curiae Trial Lawyers for Public Justice, Washington, D.C.
Commercial Credit Loans, Inc., Commercial Credit Corporation, Citigroup, Inc., Citicorp, Inc., Citifinancial, Inc., and Citifinancial Services, Inc. (collectively, "defendants") appeal from order entered 20 January 2005 denying defendants' motion to compel arbitration, and from order entered 28 September 2004 denying in part defendants' motion to compel and granting in part Fannie Lee Tillman's and Shirley Richardson's, on behalf of all others similarly situated (collectively, "plaintiffs"), motion for protective order. We reverse and remand.
I. Background
Plaintiffs are North Carolina borrowers who obtained financing from or through defendant Commercial Credit Loans, Inc. ("Commercial Credit"). Plaintiffs asserted a class action suit against defendants in the Vance County Superior Court in June 2002 and alleged defendants acted unlawfully in connection with mortgage loans defendants made to plaintiffs. Plaintiffs complain Commercial Credit sold them single premium credit insurance they did not need or want without disclosing such insurance was optional, and that Commercial Credit was the beneficiary of the policies.
Credit insurance was purchased by plaintiffs in connection with their mortgage loans and benefits are paid to the lender if a covered event occurs. Credit insurance coverages include: (1) credit life, which pays off the loan in the event of the borrower's death; (2) credit disability, which makes the monthly mortgage payments if the borrower becomes disabled; and (3) credit involuntary unemployment, which makes the monthly mortgage payments if the borrower becomes involuntarily unemployed. Single premium credit insurance requires the borrower to pay the entire expected term of coverage at the time the mortgage loan is closed. The up-front premium is financed as a part of the loan.
Plaintiffs' loan agreements contain an arbitration provision. The provision is contained in an outlined box with the heading:
"READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN REDRESS THROUGH COURT ACTION."
The arbitration provision provides:
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 forego arbitration.
This provision excludes two types of claims from arbitration: (1) "Any action to effect a foreclosure to transfer title to the property being foreclosed;" and (2) "Any matter where all parties seek monetary damages in the aggregate of $15,000 or less in total damages (compensatory and punitive), costs, and fees." The provision further provides:
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.
The arbitration provision requires the party initiating the arbitration to pay the first $125.00 toward arbitration costs. Commercial Credit agreed to pay "all other costs for the arbitration proceeding up to a maximum of one day (8 hours) of hearings." It further provides, "All costs of the arbitration proceeding that exceed one day of hearings will be paid by the non-prevailing party."
The arbitration agreements gives either party the right to appeal the arbitrator's award to a three-arbitrator panel "which shall reconsider de novo any aspect of the initial award requested by the appealing party." The appealing party is required to pay the costs of initiating the appeal. The non-prevailing party is required to pay all costs, fees, and expenses of the appeal and may be required to reimburse the prevailing party for the cost of initiating the appeal.
Defendants filed a motion to compel arbitration in the Vance County Superior Court and was heard on 16 December 2004. The trial court made findings of fact and conclusions of law and denied defendants' motion. Defendants appeal.
II. Issues
Defendants argue the trial court erred by: (1) concluding plaintiffs could avoid the agreements to arbitrate because of the alleged costs of arbitration; (2) concluding the parties' arbitration agreements were unenforceable because it precludes class actions; and (3) imposing a "mutuality" requirement on arbitration agreements that does not exist under North Carolina law.
III. Standard of Review
An order denying defendants' motion to compel arbitration is not a final judgment and is interlocutory. However, an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed. Burke v. Wilkins, 131 N.C. App. 687, 688, 507 S.E.2d 913, 914 (1998).
A dispute can only be settled by arbitration if a valid arbitration agreement exists. The party seeking arbitration must show that the parties mutually agreed to arbitrate their disputes. The trial court's findings regarding the existence of an arbitration agreement are conclusive on appeal where supported by competent evidence, even where the evidence might have supported findings to the contrary. However, the trial court's determination of whether a dispute is subject to arbitration is a conclusion of law that is reviewable de novo on appeal.
Revels v. Miss Am. Org., 165 N.C. App. 181, 188-89, 599 S.E.2d 54, 59 (quoting Slaughter v. Swicegood, 162 N.C. App. 457, 461, 591 S.E.2d 577, 580 (2004)) (internal citations and quotations omitted), disc. rev. denied, 359 N.C. 191, 605 S.E.2d 153 (2004).
IV. Enforceability of Arbitration Agreements
"North Carolina has a strong public policy favoring arbitration." Red Springs Presbyterian Church v. Terminix Co., 119 N.C. App. 299, 303, 458 S.E.2d 270, 273 (1995). "The essential thrust of the Federal Arbitration Act, which is in accord with the law of our state, is to require the application of contract law to determine whether a particular arbitration agreement is enforceable; thereby placing arbitration agreements 'upon the same footing as other contracts.'" Futrelle v. Duke University, 127 N.C. App. 244, 247-48, 488 S.E.2d 635, 638 (quoting Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 134 L. Ed. 2d 902, 909 (1996)), disc. rev. denied, 347 N.C. 398, 494 S.E.2d 412 (1997).
"The interpretation of the terms of an arbitration agreement are governed by contract principles and parties may specify by contract the rules under which arbitration will be conducted." Trafalgar House Construction v. MSL Enterprises, Inc., 128 N.C. App. 252, 256, 494 S.E.2d 613, 616 (1998). As a general rule, "[p]ersons entering contracts of insurance, like other contracts, have a duty to read them and ordinarily are charged with knowledge of their contents." Nationwide Mut. Insur. Co. v. Edwards, 67 N.C. App. 1, 8, 312 S.E.2d 656, 661 (1984).
Plaintiffs argue they are not bound by the provisions of the agreements to arbitrate because they are unconscionable. Unconscionability is an affirmative defense and the party asserting the defense bears the burden of proof. Rite Color Chemical Co. v. Velvet Textile Co., 105 N.C. App. 14, 20, 411 S.E.2d 645, 649 (1992). In assessing unconscionability, a court is to consider "all the facts and circumstances of a particular case." Brenner v. School House, Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981). This Court has previously held that "to find unconscionability there must be an absence of meaningful choice on part of one of the parties [procedural unconscionability] together with contract terms which are unreasonably favorable to the other [substantive unconscionability]." Rite Color Chemical Co., 105 N.C. App. at 20, 411 S.E.2d at 649 (quoting Martin v. Sheffer, 102 N.C. App. 802, 805, 403 S.E.2d 555, 557 (1991)) (emphasis in original).
Procedural unconscionability involves 'bargaining naughtiness' in the formation of the contract, i.e., fraud, coercion, undue influence, misrepresentation, inadequate disclosure. Substantive unconscionability . . . involves the harsh, oppressive, and one-sided terms of a contract, i.e., inequality of the bargain. The inequality of the bargain, however, must be so manifest as to shock the judgment of a person of common sense, and . . . the terms . . . 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.
King v. King, 114 N.C. App. 454, 458, 442 S.E.2d 154, 157 (1994) (citation omitted); see also Brenner, 102 N.C. App. at 805, 403 S.E.2d at 557.
The trial court found defendants' arbitration clause to be unconscionable and unenforceable due to the combination of: (1) "prohibitively high arbitration costs" and the risk of "excessive arbitration and appeal costs;" (2) its class action waiver; and (3) its "excessively one-sided" nature which "lacks mutuality."
V. Arbitration Costs
Defendants argue the trial court erred by concluding plaintiffs were not bound by the arbitration agreements because of the alleged costs of arbitration. We agree.
The United States Supreme Court examined the issue of arbitration costs in Green Tree Financial v. Randolph, 531 U.S. 79, 148 L. Ed. 2d 373 (2000). In Green Tree Financial, the Court addressed "whether an arbitration agreement that does not mention arbitration costs and fees is unenforceable because it fails to affirmatively protect a party from potentially steep arbitration costs." 531 U.S. at 82, 148 L. Ed. 2d at 378. The Court acknowledged that "the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum." Id. at 90, 148 L. Ed. 2d at 383 (emphasis supplied).
The respondent in Green Tree Financial argued she was unable to vindicate her statutory rights in arbitration because "the arbitration agreement's silence with respect to costs and fees creates a 'risk' that she will be required to bear prohibitive arbitration costs if she pursues her claims in an arbitral forum[.]" 531 U.S. at 90, 148 L. Ed. 2d at 383. The Court stated, "where . . . a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs." Id. at 92, 149 L. Ed. 2d at 384. The Court held that the record contains "hardly any information" regarding costs of arbitration, and the "'risk' that Randolph will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement." Id. at 91, 149 L. Ed. 2d at 384.
In Bradford v. Rockwell Semiconductor Systems Inc., 238 F.3d 549, 556 (4th Cir.2001), the United States Court of Appeals for the Fourth Circuit considered an express fee-splitting provision in an arbitration agreement and held:
We believe that the appropriate inquiry is one that evaluates whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation, i.e., a case-by-case analysis that focuses, among other things, 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.
Following the Supreme Court's decision in Green Tree Financial, the Fourth Circuit concluded the respondent "failed to demonstrate any inability to pay the arbitration fees and costs, much less prohibitive financial hardship, to support his assertion that the fee-splitting provision deterred him from arbitrating his statutory claims." Id. at 558. The Court further stated:
The cost of arbitration, as far as its deterrent effect, cannot be measured in a vacuum or premised upon a claimant's abstract contention that arbitration costs are "too high." Rather, an appropriate case-by-case inquiry must focus upon a claimant's expected or actual arbitration costs and his ability to pay those costs, measured against a baseline of the claimant's expected costs for litigation and his ability to pay those costs.
Id. at 556, n. 5 (emphasis supplied).
Here, with regard to arbitration costs, the trial court concluded:
4. The Commercial Credit arbitration clause, as written, exposes borrowers to prohibitively high arbitration costs. The arbitration clause exposes consumers to arbitrator fees, based upon the AAA average for North Carolina, of $1,225.00 per day after the first eight hours of hearings. For example, a three-day arbitration with an arbitrator charging the average AAA hourly fee in North Carolina could cost a borrower $2,450.00 plus costs and attorneys' fees. If the arbitrator charged the high end of the range in North Carolina, a borrower could face arbitration fees of $4,760.00 for a three-day arbitration, plus costs and attorneys' fees. (Emphasis supplied).
5. Defendant's arbitration clause provides for a de novo appeal from the initial arbitration proceeding. The de novo appeal would be to a three-arbitrator panel. The arbitration clause contains a fee-shifting provision with respect to costs of that de novo appeal. That is, the party that loses the appeal "shall pay all costs, fees, and expenses of the appeal proceeding" even if that party had won the initial arbitration proceeding. Thus, a consumer seeking to vindicate her rights through the arbitration process faces the prospect of paying not only arbitrator fees for the initial arbitration proceeding exceeding eight hours, but also much greater costs associated with the de novo appeal. For example, a two-day appeal could cost a borrower $7,350.00 in arbitrator fees alone, with a three-arbitrator panel charging the AAA average arbitrator fee. These appeal costs would be borne by a borrower even if the borrower had prevailed at the initial arbitration proceeding. (Emphasis supplied).
With regard to litigation costs, the trial court found:
15. Based upon the 1998 North Carolina Bar Association Economic Survey, the most recent survey published, the average hourly rate for attorneys working on litigation matters such as this is between $150.004250.00 per hour.
. . . .
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 trial court concluded:
6. The fees and costs associated with both the initial arbitration proceeding and any appeal to a three-arbitrator panel are beyond what would be incurred by a civil litigant in the court system. These fees and costs may deter a substantial number of consumers from pursuing valid claims. The cost-shifting ("loser pays") provisions of the arbitration clause further serve as a substantial deterrent to consumers attempting to pursue claims against Defendant.
Plaintiffs' counsel filed an affidavit in which he stated, "In complex cases such as this, costs and expenses advanced by our law firm can total more than $150,000.00." Plaintiffs argued to the trial court that the costs involved in arbitrating their claims "represent a cost that would not be incurred in civil court." Plaintiffs argued that if this case were tried in civil court it would be certified as a class action and the costs of the lawsuit, if it was successful, would be shared among the class members and taxed against defendants. This arrangement "places the risk associated with the case on the law firm." See North Carolian State Bar Revised Rules of Professional Conduct, Rule 1.5(c) (2006) ("A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law."). Even though plaintiffs may sign a contingency agreement with their attorneys, they are still liable for the costs of the litigation. The State Bar ruled in RPC 124 (January 17, 1992) ("RPC 124") that "an attorney may never ethically agree to be ultimately responsible for the costs of litigation." An attorney cannot agree with his or her client to bear all or some of the costs of litigation. Under the arbitration agreements, after paying the $125.00 initiation fee plaintiffs are only liable for the costs if the arbitration exceeds "one day (8 hours) of hearings." The costs of filing suit in the North Carolina superior courts is $95.00. N.C. Gen. Stat. § 7A-305 (2005). Plaintiffs' counsel stated in his affidavit that advanced costs and expenses could total more than $150,000.00. The costs plaintiffs would bear for litigation would likely be higher than the costs they would bear for arbitration.
Plaintiffs also failed to address or quantify the costs of litigation associated with this lawsuit if they were not successful in the superior court or the costs of an appeal. Their argument solely focuses on the costs of arbitration only if the arbitration exceeds "one day (8 hours) of hearings" and plaintiffs were the non-prevailing party and sought a de novo appeal. Plaintiffs costs comparison between arbitration and civil litigation also presumes plaintiffs would be the non-prevailing party in arbitration and would be the prevailing party in litigation. This argument is an "apples to oranges" comparison. Plaintiffs also failed to equate the time and costs between a "bench trial" and arbitration hearing, both lasting up to eight hours.
Plaintiffs' argument is premised upon the same kind of "risk" of prohibitive arbitration costs the Supreme Court addressed in Green Tree Financial. Plaintiffs failed to fairly measure the costs of arbitration "against a baseline of the claimant's expected costs for litigation." Bradford, 238 F.3d at 556, n. 5. "Speculative assertions . . . do not constitute competent evidence." MCC Outdoor, LLC v. Town of Franklinton Bd. of Comm'rs, 169 N.C. App. 809, 815, 610 S.E.2d 794, 798, disc. rev. denied, 359 N.C. 634, 616 S.E.2d 540 (2005). Based on the evidence presented and the lack of equal comparisons between arbitration and trial and appeals, the trial court erred in concluding plaintiffs' costs of arbitration were "prohibitive."
VI. Preclusion of Class Actions
Defendants argue the trial court erred by concluding the arbitration clause was unenforceable because it precludes class actions. We agree.
Plaintiffs conceded, and the trial court acknowledged, that a class action waiver in an arbitration agreement does not, in and of itself, render the arbitration agreements unenforceable. See Adkins v. Labor Ready, Inc., 303 F.3d 496, 503 (4th Cir.2002) (A class action waiver "cannot by itself suffice to defeat the strong congressional preference for an arbitral forum.").
The trial court accepted plaintiffs' proposition that without the ability to join claims, they are deterred from bringing lawsuits against defendants due to the amount of money at stake being too small to justify an attorney's involvement. This proposition and the trial court's conclusion ignores the fact that the consumer protection statute underlying plaintiffs' claims provides for the recovery of plaintiffs' costs and attorney's fees if plaintiffs prevail.
Plaintiffs' complaint seeks damages against defendants for violations of N.C. Gen. Stat. § 75-1.1. N.C. Gen. Stat. § 75.16.1 (2005) provides that "[i]n any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may . . . allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party."
In Snowden v. Checkpoint Check Cashing, the United States Court of Appeals for the Fourth Circuit expressly and explicitly rejected the precise argument plaintiffs assert and the trial court accepted here:
We also reject Snowden's argument that the Arbitration Agreement is unenforceable as unconscionable because without the class action vehicle, she will be unable to maintain her legal representation given the small amount of her individual damages. Snowden's argument is unfounded in light of: (1) the fact that attorney's fees are recoverable by a prevailing plaintiff in a TILA action, 15 U.S.C. § 1640(a)(3), and a civil RICO action, 18 U.S.C. § 1962(c); and (2) the fact that, although the Arbitration Agreement provides that each party shall bear the expense of their respective attorneys' fees regardless of which party prevails in the arbitration, such provision expressly does not apply if it is "inconsistent with the applicable law. . . ."
290 F.3d 631, 638 (4th Cir.2002) (emphasis supplied), cert. denied, 537 U.S. 1087, 154 L. Ed. 2d 631 (2002). Like in Snowden, the arbitration agreements at bar provide, "Each party shall pay his/her own attorney . . . fees and expenses, unless otherwise required by law." (Emphasis supplied).
The United States Court of Appeals for the Eleventh Circuit adopted the Fourth Circuit's reasoning in Jenkins v. First American Cash Advance of Georgia, 400 F.3d 868 (11th Cir. 2005), cert. denied, ___ U.S.___, 164 L. Ed. 2d 132 (2006).
The Arbitration Agreements expressly permit Jenkins and other consumers to recover attorneys' fees and expenses "if allowed by statute or applicable law." Under the Georgia RICO statute, a prevailing plaintiff may be awarded attorney's fees. . . . Jenkins, therefore, can presumably recover attorneys' fees and costs if she prevails in arbitration on her Georgia RICO claim.
Id. at 878.
The trial court's conclusion regarding class action waivers is contrary to the great majority of federal and state courts that have examined and ruled upon this issue. See Snowden, 290 F.3d at 638 (rejecting the argument "that the Arbitration Agreement is unenforceable as unconscionable because without the class action vehicle, she will be unable to maintain her legal representation given the small amount of her individual damages"); Johnson, 225 F.3d at 369 (holding arbitration "clauses are effective even though they may render class actions to pursue statutory claims under the TILA or the EFTA unavailable"); Livingston v. Associates Finance, Inc., 339 F.3d 553, 559 (7th Cir.2003) ("The Arbitration Agreement at issue here explicitly precludes the [borrowers] from bringing class claims or pursuing 'class action arbitration,' so we are therefore 'obliged to enforce the type of arbitration to which these parties agreed, which does not include arbitration on a class basis.'"); Iberia Credit Bureau, Inc. v. Cingular Wireless, 379 F.3d 159, 175 (5th Cir.2004) (". . . the arbitration clause does not leave the plaintiffs without remedies or so oppress them as to rise to the level of unconscionability."); Rosen v. SCIL, LLC, 799 N.E.2d 488, 494 (Ill.App. 2003) ("We find the arbitration provision enforceable despite its prohibition on class actions. We further note that the question of whether an individual is entitled to participate in a class action as a matter of right is a question of public policy, which we suggest should be addressed by the legislature."); Med Center Cars, Inc. v. Smith, 727 So.2d 9, 20 (Ala. 1998) ("to require class-wide arbitration would alter the agreements of the parties, whose arbitration agreements do not provide for class-wide arbitration"); Rains v. Foundation Health Systems, 23 P.3d 1249, 1253 (Colo.App. 2001) ("arbitration clauses are not unenforceable simply because they might render a class action unavailable"); Edelist v. MBNA America Bank, 790 A.2d 1249, 1261 (Del.Super.Ct. 2001) (finding that, because "the surrender of [the] class action right was clearly articulated in the arbitration amendment[,] the Court finds nothing unconscionable about it and finds the bar on class actions enforceable"); AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 200 (Tex.App. 2003) (enforcing arbitration clause which prohibited class action claims, stating that "there is no entitlement to proceed as a class action").
These courts and others expressly recognized that class action waivers in arbitration provisions do not "necessarily choke off the supply of lawyers willing to pursue claims on behalf of debtors." Johnson v. West Suburban Bank, 225 F.3d 366, 374 (3rd Cir.2000). The great majority of federal and state jurisdictions who have addressed this issue are directly contrary to the trial court's findings and conclusions. Upon de novo review, the trial court's conclusion that plaintiffs would be deterred from bringing their claims against defendants due to the class action waiver is erroneous in light of the express arbitration provisions and plaintiffs' assertion of claims under N.C. Gen. Stat. §§ 75-1.1 and 75.16.1.
VII. Mutuality Requirement
Defendants contend the trial court erred by concluding a mutuality requirement must exist in arbitration agreements under North Carolina law. We agree.
The trial court concluded:
8. The Commercial Credit arbitration clause used in North Carolina since February 12, 1996 is one-sided and lacks mutuality, in that it preserves for the lender the right to pursue almost all claims it would choose to pursue in civil court while denying that right to borrowers in most instances. The arbitration clause contains exceptions for foreclosure actions and claims in which the amount sought, including costs and attorneys' fees is under $15,000.00. This portion of the clause preserves for the lender the only remedies it would be likely to assert against borrowers — foreclosure and collection actions.
The trial court's order cites cases from the United States Court of Appeals for the Ninth Circuit, the United States District Court for the Southern District of Georgia, the Supreme Court of Tennessee, the Supreme Court of Arkansas, and the Supreme Court of Appeals of West Virginia to support its conclusion. No North Carolina or other controlling precedents or statutes were cited to support this conclusion.
"Mutuality of promises means that promises to be enforceable must each impose a legal liability upon the promisor. Each promise then becomes a consideration for the other." Wellington v. Dize Awning Tent Co., 196 N.C. 748, 751, 147 S.E. 13, 14 (1929). Under North Carolina law, "mutuality" merely requires consideration on each side of a contract. Mutuality does not require that each of the contract terms must apply equally to both parties to be enforceable. Id.
Want of mutuality is merely one form of want of consideration. But a single consideration may support several promises; it is not necessary that each promise have a separate consideration. Hence, a covenant which imposes obligations upon one party only may be enforceable if it is part of an entire contract which is supported by a sufficient consideration.
Id.
Likewise, the Restatement (Second) of Contracts § 79 (1979) provides:
If the requirement of consideration is met, there is no additional requirement of:
(a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; or
(b) equivalence in the values exchanged; or
(c) "mutuality of obligation."
Even under a "mutuality of obligation" analysis, we fail to see how the exclusions in the arbitration agreements are not mutual. The language of the arbitration provision states, "The following types of matters will not be arbitrated. This means that neither one of us can require the other to arbitrate." (Emphasis supplied). The first exclusion covers claims "where all parties seek monetary damages . . . of $15,000 or less." This exclusion applies equally to both plaintiffs and defendants. If defendants had asserted a lawsuit in civil court for damages of $15,000.00 or more against plaintiffs on their promissory notes, plaintiffs can compel defendants into arbitration under their agreements.
The second exclusion from arbitration for "[a]ny action to effect a foreclosure to transfer title to the property being foreclosed" is also mutual. Neither party can force the other to arbitrate such a claim. Further, the fact that the North Carolina superior courts have "exclusive jurisdiction" over any action affecting title to land is a good reason to exclude foreclosure actions from arbitration agreements. N.C. Gen. Stat. § 43-1 (2005).
The Maryland Court of Appeals recently held that an arbitration agreement that excluded foreclosure proceedings was not unconscionable. Walther v. Sovereign Bank, 872 A.2d 735, 748-49 (Md. 2005).
Maryland foreclosure proceedings, like those of both Kentucky and South Carolina, do not act solely to protect the interests of the mortgage lender against a defaulting debtor but instead provide protections for both sides. We agree with these other jurisdictions and their findings that the act of a mortgage lender in providing certain exceptions for itself in the arbitration agreement, such as the ability to pursue foreclosure proceedings in a judicial forum, does not in and of itself make the arbitration agreement unconscionable where the mortgage-debtor/borrower is not provided with identical exceptions to the arbitration agreement. The arbitration agreement at issue, which includes exceptions to that agreement that enable the mortgage lender, presently Sovereign Bank, to pursue certain judicial remedies including foreclosure, is not made unconscionable where petitioners are not provided with identical exceptions to the arbitration agreement.
Id. at 749 (internal citations omitted). The Maryland Court of Appeals' rationale is persuasive and applicable to the issue before us. Here, the foreclosure exception in the arbitration agreements applies equally to both parties.
Under de novo review, the trial court erred in applying a "mutuality of obligations" to the arbitration agreements that is contrary to North Carolina contract law. Wellington, 196 N.C. at 751, 147 S.E.2d at 14. Further, plaintiffs failed to show how the two exclusions contained in the arbitration agreements were not equally binding upon both parties and were not mutual obligations.
VIII Conclusion
The trial court erred by concluding the arbitration agreements was unconscionable. Plaintiffs failed to establish the costs of arbitration are "prohibitive." The arbitration agreements are not unenforceable because they preclude class actions. The trial court erred in applying a requirement of mutuality to the arbitration agreements that is contrary to North Carolina law. Viewed separately or together, these three provisions of the arbitration agreements do not render them unconscionable.
The trial court's order denying defendants' motion to compel arbitration is reversed. This case is remanded to the trial court for entry of an order granting defendants' motion to compel arbitration.
Reversed and Remanded.
Judge McCULLOUGH concurs.
Judge HUNTER dissents by separate opinion.