U.S. Bank, N.A. v. Wilkens

[Cite as U.S. Bank, N.A. v. Wilkens, 2012-Ohio-263.]

[Vacated opinion. Please see 2012-Ohio-1038.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 96617

U.S. BANK N.A.
PLAINTIFF-APPELLEE

vs.

JOHN C. WILKENS, ET AL.

DEFENDANTS AND THIRD-PARTY
PLAINTIFFS-APPELLANTS
VS.

OCWEN LOAN SERVICING, LLC
THIRD-PARTY DEFENDANT AND
APPELLEE-CROSS-APPELLANT

JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
 2

Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-632289

BEFORE: Boyle, P.J., Cooney, J., and Rocco, J.

RELEASED AND JOURNALIZED: January 26, 2012

ATTORNEY FOR APPELLANTS

Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103-1125

ATTORNEYS FOR APPELLEES

Martha Van Hoy Asseff
Charles E. Ticknor III
Dinsmore & Shohl, LLP
191 W. Nationwide Boulevard
Suite 300
Columbus, Ohio 43215
 3

MARY J. BOYLE, P.J.:

{¶ 1} Defendants and third-party plaintiffs, John and Ruth Wilkens, appeal from a

judgment granting plaintiff-appellee U.S. Bank’s motion to compel arbitration. The

Wilkenses raise one assignment of error for our review:

{¶ 2} “The judgment of the trial court granting appellee U.S. Bank’s motion to

stay proceedings and compel arbitration is contrary to law and constitutes a denial of

[appellants’] right of access to the courts and their right to a jury trial, guaranteed by

Article I, Sections 5 and 16 of the Constitution of the State of Ohio.”

{¶ 3} Third-party defendant-appellee and cross-appellant, Ocwen Loan Servicing,

LLC (“Ocwen”), raises one assignment of error for our review:

{¶ 4} “The trial court abused its discretion by refusing to stay the litigation and

compel arbitration of the Wilkenses’ third-party claims against [Ocwen].”

{¶ 5} We find no merit to the Wilkenses’ arguments, but we do find merit to

Ocwen’s. Thus, the trial court’s judgment is affirmed in part, reversed in part, and

remanded.

Procedural History and Factual Background

{¶ 6} John Wilkens executed a promissory note and mortgage in December 2002,

agreeing to pay Metro Center Mortgage, Inc. (“Metro Center”) $85,000 for property
 4

located in Garfield Heights, Ohio. John Wilkens executed a separate arbitration rider

with Metro Center that was incorporated into the loan agreement by reference. Ruth

Wilkens signed the mortgage, but not the note or arbitration rider.

{¶ 7} In August 2007, U.S. Bank, as the assignee of Metro Center, filed a

complaint for a money judgment, foreclosure, and relief against the Wilkenses. In the

complaint, U.S. Bank alleged that John Wilkens defaulted in the payment of his loan and

owed U.S. Bank $83,681.71 plus interest from August 23, 2004. The complaint further

alleged that Ruth Wilkens claimed to have or had an interest in the property.

{¶ 8} In their answer, the Wilkenses denied the allegations and asserted several

counterclaims against U.S. Bank, including fraud, breach of contract, intentional

infliction of emotional distress, and loss of consortium. The Wilkenses further brought a

third-party complaint against Ocwen, U.S. Bank’s attorney-in-fact and the servicer of the

loan at issue, advancing similar claims against it.

{¶ 9} In April 2008, U.S. Bank moved the trial court to compel arbitration of the

Wilkenses’ counterclaims and stay further proceedings pending arbitration. Ocwen did

not join in the motion. But U.S. Bank requested the court stay the proceedings against

Ocwen because the claims against Ocwen were “inextricably intertwined with

[Wilkenses’] arbitrable claim against [U.S. Bank].”

{¶ 10} The trial court denied U.S. Bank’s motion to compel arbitration of the

Wilkenses’ counterclaims and stay the proceedings because it found that U.S. Bank had
 5

waived its right to arbitrate. U.S. Bank appealed, and this court reversed, concluding

that U.S. Bank did not waive its right to arbitrate. See U.S. Bank, N.A. v. Wilkens, 8th

Dist. No. 93088, 2010-Ohio-262, 2010 WL 323432, ¶ 46 (“Wilkens I”). We further

reserved the issue of whether the arbitration clause was enforceable, finding that the issue

was not ripe for review. Id. at fn. 2. With respect to Ocwen, we found that it had not

moved the trial court to compel arbitration and stay the proceedings and, thus, the trial

court did not err when it denied Ocwen the right to arbitrate. Id. at ¶ 47.

{¶ 11} On remand, U.S. Bank and Ocwen filed a motion to compel arbitration and

stay the proceedings. The trial court granted U.S. Bank’s motion to compel and ordered

that “any further proceedings are hereby stayed pending arbitration in accordance with the

Arbitration Rider.” Since the trial court did not mention Ocwen, this court presumes the

trial court denied Ocwen’s motion to compel and, thus, the Wilkenses’ third-party claims

against Ocwen were stayed pending the arbitration proceedings. Temple v. Fence One,

Inc., 8th Dist. No. 85703, 2005-Ohio-6628, 2005 WL 3436354, ¶ 27.

{¶ 12} It is from this judgment that the Wilkenses appeal and Ocwen cross appeals,

each raising a sole assignment of error for our review.

Standard of Review

{¶ 13} When addressing whether a trial court has properly granted a motion to stay

litigation pending arbitration, this court applies an abuse of discretion standard. Carter

Steel & Fabricating Co. v. Danis Bldg. Constr. Co., 126 Ohio App.3d 251, 254-55, 710
 6

N.E.2d 299 (3d Dist.1998). An abuse of discretion implies the trial court’s judgment

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). Absent an abuse of that discretion, an appellate

court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med.

Bd., 66 Ohio St.3d 619, 621, 1993-Ohio-122, 614 N.E.2d 748.

{¶ 14} When determining whether an arbitration provision is unconscionable or

enforceable, however, this court applies a de novo standard of review. Taylor Bldg.

Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶2.

Under a de novo standard of review, we give no deference to a trial court’s decision.

Akron v. Frazier, 142 Ohio App.3d 718, 721, 756 N.E.2d 1258 (9th Dist.2001).

Arbitration Agreements

{¶ 15} Ohio and federal courts encourage arbitration to settle disputes. R.C.

2711.01(A); ABM Farms Inc. v. Woods, 81 Ohio St.3d 498, 500, 692 N.E.2d 574 (1998).

As a result, a court must indulge a strong presumption in favor of arbitration and resolve

any doubts in favor of arbitrability. Ball v. Ohio State Home Servs., Inc., 168 Ohio

App.3d 622, 2006-Ohio-4464, 861 N.E.2d 553, ¶ 6 (9th Dist.), quoting Neubrander v.

Dean Witter Reynolds, Inc., 81 Ohio App.3d 308, 311, 610 N.E.2d 1089 (9th Dist.1992).

An arbitration provision, however, may be held unenforceable on “grounds that exist at

law or in equity for the revocation of any contract.” Ball at ¶ 6. One such ground is

unconscionability. Id.
 7

{¶ 16} “An unconscionable contract clause is one in which there is an absence of

meaningful choice for the contracting parties, coupled with draconian contract terms

unreasonably favorable to the other party.” Eagle v. Fred Martin Motor Co., 157 Ohio

App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161, ¶ 30 (9th Dist.). An arbitration

provision can be rendered invalid where a party demonstrates the provision is both

procedurally and substantively unconscionable. Featherston v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 159 Ohio App.3d 27, 2004-Ohio-5953, 822 N.E.2d 841, ¶ 13 (9th

Dist.).

{¶ 17} Substantive unconscionability goes to the specific terms of the contract.

Ball at ¶ 7. When considering substantive unconscionability, the court should observe

whether the terms of the contract are commercially reasonable. Eagle at ¶ 31. With

respect to this issue, the Second Appellate District has observed:

Because the determination of commercial reasonableness varies with the
content of the contract terms at issue in any given case, no generally
accepted list of factors has been developed for this category of
unconscionability. However, courts examining whether a particular * * *
clause is substantively unconscionable have considered the following
factors: the fairness of the terms, the charge for the service rendered, the
standard in the industry, and the ability to accurately predict the extent of
future liability. Collins v. Click Camera & Video, Inc., 86 Ohio App.3d
826, 834, 621 N.E.2d 1294 (2d Dist.1993).

{¶ 18} Procedural unconscionability, on the other hand, involves the circumstances

surrounding the execution of the contract between the two parties and occurs where no

voluntary meeting of the minds was possible. Id. In determining procedural
 8

unconscionability, a court should consider factors bearing on the relative bargaining

position of the contracting parties — including age, education, intelligence, business

acumen, experience in similar transactions, whether the terms were explained to the

weaker party, and who drafted the contract. Id., citing Johnson v. Mobil Oil Corp., 415

F.Supp. 264, 268 (6th Cir.1976). Additionally, the court should consider whether the

party who claims that the terms of a contract are unconscionable was represented by

counsel at the time the contract was executed. Eagle, 157 Ohio App.3d 150,

2004-Ohio-829, 809 N.E.2d 1161, at ¶ 31 (9th Dist.), citing Bushman v. MFC Drilling,

Inc., 9th Dist. No. 2403-M, 1995 WL 434409 (July 19, 1995). “The crucial question is

whether ‘each party to the contract, considering his obvious education or lack of it, [had]

a reasonable opportunity to understand the terms of the contract, or were the important

terms hidden in a maze of fine print * * *.’” Lake Ridge Academy v. Carney, 66 Ohio

St.3d 376, 383, 613 N.E.2d 183 (1983), quoting Williams v. Walker-Thomas Furniture

Co., 350 F.2d 445, 449 (D.C.Cir.1965).

{¶ 19} We now turn to the arbitration rider at issue to determine whether it is

substantively or procedurally unconscionable.

Substantive Unconscionability

{¶ 20} The Wilkenses raise five issues to support their claim that the arbitration

rider is substantively unconscionable.
 9

{¶ 21} First, the Wilkenses argue that there is a lack of information in the

arbitration rider that relates to their loss of appeal rights. They acknowledge that the

arbitration rider references appeal rights, but claims it is “oblique,” and “in small print in

the body of the arbitration rider.” They cite Felix v. Ganley Chevrolet, Inc., 8th Dist.

Nos. 86990 and 86991, 2006-Ohio-4500, 2006 WL 2507469, in support of their

argument.

{¶ 22} In Felix, the arbitration clause was included within an automobile purchase

contract and stated in its entirety:

Arbitration — Any dispute between you and dealer (seller) will be
resolved by binding arbitration. You give up your right to go to court to
assert your rights in this sales transaction (except for any claim in small
claims court). Your rights will be determined by a neutral arbitrator, not a
judge or jury. You are entitled to a fair hearing, but arbitration procedures
are simpler and more limited than rules applicable in court. Arbitrator
decisions are as enforceable as any court order and are subject to a very
limited review by a court. See general manager for information regarding
arbitration process.

{¶ 23} This court found the arbitration clause in Felix to be substantively

unconscionable for several reasons: (1) the terms of the clause were “ambiguous and

misleading”; (2) the clause failed to provide accurate information about the arbitration

process; (3) failed to describe the type of arbitration forum the plaintiffs would be bound

to participate in; (4) failed to clearly explain how arbitration is “simpler and more

limited”; and (5) failed to mention that the burdens are different for each party in the

appeal process.
 10

{¶ 24} This court concluded:

Because crucial information about the appellate process was not divulged,
we find that the arbitration provision by its incompleteness is not only
confusing, but misleading and thus substantively unconscionable.
Accepting the arbitration clause as written, plaintiffs could not have known
what being bound to arbitration really meant. The clause does not include
some very important and material information plaintiffs would have needed
in order to make an informed decision about whether to agree to arbitration.
Because of the absence of any details about the arbitration process that
plaintiffs would be bound to, we conclude that when they signed the
purchase agreement plaintiffs were substantially less informed than
defendant. The clause, on its face, violates principles of equity.
Moreover, the failure of the arbitration provision to divulge certain
information could have induced consumers to agree to it. Id.

{¶ 25} We find the arbitration rider in the instant case to be distinguishable.

Here, the rider is a separate page clearly identified in bold print at the top as

“ARBITRATION RIDER,” and it contains much more information than the short

arbitration clause in Felix. Regarding a party’s appeal rights and litigation rights, the

instant arbitration rider states: “the arbitrators award shall not be subject to appeal except

as permitted by the FAA [Federal Arbitration Act].” Moreover, near the bottom of the

arbitration rider, in bold print and capital letters, it states:

The parties acknowledge that they had a right to litigate claims through a
court before a judge or a jury, but will not have that right if either party
elects arbitration. The parties hereby knowingly and voluntarily waive
their right to litigate such claims in a court before a judge or jury upon
election of arbitration by either party. You also acknowledge that you will
not have the right to participate as a representative, claimant or member of
any class action pertaining to any claim that is subject to arbitration, even if
such class action is pending on the date of this arbitration rider, except that
this arbitration rider will not preclude your participating in a class which
 11

has already been certified by a court of competent jurisdiction on or before
the date of this arbitration rider.

{¶ 26} In contrast to the arbitration clause in Felix, the arbitration rider at issue

here also explains significantly more information regarding the arbitration process than

the short clause in Felix, which merely states: “See general manager for information

regarding arbitration process.” Indeed, the arbitration rider in the instant case consists of

a full page of information regarding the arbitration process and what governs it (Federal

Arbitration Act).

{¶ 27} The Wilkenses further argue that “the second fundamental flaw in the

arbitration rider” with respect to substantive unconscionability relates to attorney fees.

They claim that their “counterclaims, set-offs, and third-party claims include common law

claims for fraud, interference with contractual relations, and intentional infliction of

emotional distress,” and that the arbitration rider limits their ability to recover attorney

fees. The cite Post v. Procare Automotive Serv. Solutions, 8th Dist. No. 87646,

2007-Ohio-2106, 2007 WL 1290091, in support of their argument, claiming the

arbitration rider contains the “same flaw” found in Post, where this court found the

arbitration clause substantively unconscionable.

{¶ 28} We find Post to be distinguishable from the present case. In Post, the

employees filed an employment discrimination action under R.C. 4112.02(A). The

critical issue in that case was whether the limitation on remedies at issue undermined the

rights protected by statute. Id. at ¶ 15, citing Morrison v. Circuit City Stores, 317 F.3d
 12

646, 670 (6th Cir.2003). This court concluded that the arbitration provision limited the

right of the employee to recover statutory attorney fees. Id. at ¶16.

{¶ 29} Here, however, the arbitration rider protects attorney fees provided by

statute. With respect to attorney fees, the arbitration rider states:

The parties shall each bear the expense of their respective attorney fees,
except as otherwise provided by law. If a statute gives you the right to
recover these fees, or the fees paid to the arbitration administrator, these
statutory rights shall apply in the arbitration notwithstanding anything to the
contrary contained herein.

{¶ 30} Moreover, the Ohio Supreme Court recently found that a provision in a

voluntary arbitration agreement requiring both parties to bear their own attorney fees and

costs equitably eliminated both parties’ ability to recover attorney fees and was not

commercially unreasonable. See Hayes v. Oakridge Home, 122 Ohio St.3d 63,

2009-Ohio-2054, 908 N.E.2d 408.

{¶ 31} The Wilkenses further claim that the arbitration rider is substantively

unconscionable because “of the imbalance of the respective rights of the parties to the

arbitration rider.” Again, they claim that the arbitration rider contains the same

“imbalance” that we found to be substantively unconscionable in Post. Regarding this

issue in Post, this court stated:

The imbalance of the respective rights of the parties to the employment
agreement demonstrates the unconscionability of the arbitration clause.
While [the employee] is limited to mandatory arbitration regarding any
employment dispute, the agreement provides that [the employer] may
bypass arbitration and seek judicial remedies in court in order to obtain
injunctive relief for any breach or threatened breach by [the employee] of
 13

the covenants contained in the non-competition and confidentiality
provisions of the employment agreement. We are not persuaded by [the
employer’s] assertion that this provision, which allows [the employer] to
use a judicial forum when it is the plaintiff, but limits [the employee] to
arbitration when he is the plaintiff, is not unconscionable. Id. at ¶ 17.

{¶ 32} In the arbitration rider here, however, the only claim U.S. Bank preserved

for a judicial forum was the right to foreclose upon the property at issue if the Wilkenses

defaulted on their loan. As this court pointed out in Wilkens I, foreclosure actions

involve controversies over title and possession to real estate and, thus, are not arbitrable.

Id. at ¶ 20, citing R.C. 2711.01(B)(1). Therefore, by statute, U.S. Bank could not

arbitrate the foreclosure action, even if it wanted to. As such, there is no imbalance in

the arbitration rider.

{¶ 33} The Wilkenses claim that the fourth fundamental flaw in the arbitration

rider is that it “contains all of the cost-splitting provisions that the Court of Appeals

expressed concern about in Post.” In Post, however, we explained there was not a per se

rule of unconscionability regarding cost-splitting provisions of arbitration agreements.

Id. at ¶ 19. Instead, the enforceability of a fee-splitting clause must be decided on a

case-by-case basis. Id. We explained:

A cost-splitting provision should be held unenforceable whenever it would
have the “chilling effect” of deterring a substantial number of potential
litigants from seeking to vindicate their statutory rights. Id. at 661.
Reviewing courts must consider whether the litigant will incur expenses not
incurred in the judicial forum and whether that expense, taken together with
the other costs and expenses of the differing fora, would deter potential
litigants from bringing their statutory claims in the arbitral forum. The
issue is not “the fact that [the] fees would be paid to the arbitrator,” but
 14

rather whether the “overall cost of arbitration,” from the perspective of the
potential litigant, is greater than “the cost of litigation in court.” Post at ¶
19, quoting Morrison v. Circuit City Stores, 317 F.3d 646 (6th Cir.2003).

{¶ 34} In Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 92, 121 S.Ct.

513, 148 L.Ed.2d 373 (2000), the United States Supreme Court explained: “we believe

that where, as here, 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 91-92. Though some expenses may be

inherently speculative, the court noted that generic information contained in AAA

Commercial Rules and unsupported statements were not enough to satisfy the party’s

burden of providing factual proof that the costs were prohibitively expensive. Id. at fn.

6.

{¶ 35} The Green Tree decision did not endorse the idea that any incurrence of

arbitration expenses is necessarily prohibitive; “[r]ather, the Supreme Court’s reasoning

supports an examination of the actual effect of a fee-splitting provision on the plaintiff’s

ability to pursue * * * claim[s], particularly in light of the fact that total litigation

expenses frequently far exceed the cost of arbitration.” Manuel v. Honda R & D Ams.,

Inc., 175 F.Supp.2d 987, 994 (S.D.Ohio 2001).

{¶ 36} In Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 1998-Ohio-294, 700

N.E.2d 859, the Ohio Supreme Court endorsed the principles of Green Tree.
 15

Determining whether cost-splitting provisions in arbitration agreements involving small

consumer loans were unconscionable, the Ohio Supreme Court stated:

‘The likely effect of these procedures is to deny a borrower against whom a
claim has been brought any opportunity to a hearing, much less a hearing
held where the contract was signed, unless the borrower has considerable
legal expertise or the money to hire a lawyer and/or prepay substantial
hearing fees. * * * In a dispute over a loan of $2,000 it would scarcely
make sense to spend a minimum of $850 just to obtain a participatory
hearing.’ Id., quoting Patterson v. ITT Consumer Fin. Corp., 14
Cal.App.4th 1659, 18 Cal.Rptr.2d 563 (1993).

{¶ 37} The Wilkenses did come forward with some evidence of the costs

associated with arbitration. They submitted affidavits attesting that “My attorney has

reviewed the costs associated with filing a claim with the American Arbitration

Association. Due to our limited resources, [we] cannot afford to pay those fees and

continue to defend ourselves in the foreclosure action.” They also submitted a page

from the fee schedule of AAA, and indicated they would be responsible for $2,450 of the

initial filing fee, and U.S. Bank would only be responsible for $1,800 of it. They claim

that “the amount of such filing fees and other charges puts arbitration beyond their

reach.”

{¶ 38} But the Wilkenses calculated the amount of the purported filing fee based

on the amount of their claims against U.S. Bank and Ocwen, which they assert is at least

four to five times the amount of the original loan of $85,000. According to the AAA

filing fee schedule, they claim “if the amount of the claim is $300,000 - $500,000, the

initial filing fee is $4,250.” The Wilkenses’ claims against Ocwen, however, would not
 16

be included in the total amount of their claims, since the Wilkenses’ claims against

Ocwen were not part of the trial court’s order compelling arbitration. See discussion

infra. And we further find the Wilkenses’ asserted estimate of the amount of their

claims to be highly speculative; they even assert “if the amount of the claim is * * *.”

{¶ 39} Regardless, proof of costs alone will not invalidate an arbitration clause.

The Wilkenses produced no evidence of the expected cost differential between arbitration

and litigation in court. Even accepting the Wilkenses’ asserted $300,000 to $500,000

amount for their claims, their incomplete fee estimation ($2,450) comprises less than 1.4

percent of that amount and could easily be exceeded by litigation expenses. We

acknowledge that arbitration has other costs associated with it besides the initial filing

fee, but the Wilkenses do not provide evidence regarding those costs, and this court will

not speculate as to what those costs are. Therefore, the Wilkenses failed to produce

sufficient evidence supporting their claim that the undisclosed costs of arbitration

rendered the provision unconscionable.

{¶ 40} The Wilkenses’ fifth and final asserted flaw in the arbitration rider is its

“ambiguity and confusion.” The Wilkenses claim that clauses and terms such as “the

party requesting arbitration,” “the party initiating arbitration,” and “the party filing the

claim,” results in the arbitration rider being “hopelessly confusing.” We find no

ambiguity in those clauses. U.S. Bank is clearly the party requesting (and thus initiating)
 17

arbitration, and the Wilkenses are the ones who filed the claims against U.S. Bank (i.e.,

the Wilkenses’ counterclaims are the ones being arbitrated).

{¶ 41} Accordingly, the Wilkenses have not established that the arbitration rider at

issue here is substantively unconscionable. Because they have to prove that an

arbitration agreement is both substantively and procedurally unconscionable, we need not

address the second prong.

{¶ 42} Within their sole assignment of error, the Wilkenses raise several other

issues to support their claim that the arbitration rider is not enforceable. First, they claim

that U.S. Bank did not prove that it was an assignee of the original lender because

Nichelle Jones, a loan analyst for Ocwen, could not authenticate the original loan

documents. Specifically, the Wilkenses maintain that Jones could “only state that the

copies of documents attached to her affidavits were true and accurate copies of the

documents that she found in the file some six (6) years after they were allegedly

executed,” and that in her deposition, she could not authenticate Scott Anderson’s

signature, the person who “allegedly executed the assignment.”

{¶ 43} We initially point out that the Wilkenses failed to cite any authority in

support of this argument. But they appear to be arguing that Jones’s affidavit would not

be sufficient evidence to grant U.S. Bank and Ocwen summary judgment. Although we

are not dealing with summary judgment, we will briefly address this argument.
 18

{¶ 44} Jones’s supplemental affidavit stated that she was a loan analyst for Ocwen,

“the servicer and attorney-in-fact for U.S. Bank, * * * the current holder of the subject

mortgage.” She averred that she had “the care, custody, and control of the account

records and loan origination documents pertaining to the subject loan made to John

Wilkens,” and that the note and mortgage that were attached to her affidavit were true and

accurate copies of the original instruments. She further stated that she “made this

affidavit based on [her] own personal knowledge obtained from reviewing those files.”

{¶ 45} Jones’s averment is made upon her personal knowledge. She identified

her position, and she referenced the documents attached to her affidavit. Jones’s

assertions do not violate the hearsay rules of evidence because they

refer to business records which are not hearsay; they are records kept in the
course of regularly conducted business activity, it was the regular practice
of that business activity to make the records, and the affiant stated they
were in her immediate control and supervision and thereby she is a person
with knowledge regarding the records. Evid.R. 803(6). Bank One v.
Schwartz, 9th Dist. No. 03CA008308, 2004-Ohio-1986, 2004 WL 840118,
¶ 16 (concluding affidavit comported with Civ.R. 56(E) when affiant was
employed as a foreclosure specialist for the bank, indicated that the debtor’s
loan file was under her immediate control and supervision, and referred to
the specific loan documents in the affidavit); compare Target Natl. Bank v.
Enos, 9th Dist. No. 25268, 2010-Ohio-6307, 2010 WL 5421404, ¶ 11
(rejecting affidavit when affiant failed to identify his position with the bank,
failed to state that he had personal knowledge of the matters contained in
the affidavit, and did not identify any specific documents attached to the
affidavit).

{¶ 46} The Wilkenses appear to be arguing that Jones needed to have firsthand

knowledge of the transaction, and actually see Scott Anderson sign the original document.
 19

But that is not the case. Rather, “[a] witness providing the foundation [for a recorded

business activity] need not have firsthand knowledge of the transaction.” Moore v.

Vandemark Co., Inc., 12th Dist. No. CA2003-07-063, 2004-Ohio-4313, 2004 WL

1829585, ¶ 18.

{¶ 47} The Wilkenses’ challenge to Jones’s affidavit lacks merit.

{¶ 48} The Wilkenses also argue that the arbitration rider was not enforceable

against the Wilkenses because the lender did not sign it. We disagree. The original

lender drafted the arbitration rider and presented it to the Wilkenses when they closed on

their home. The arbitration rider was incorporated by reference into the agreement with

the lender and made part of the agreement. U.S. Bank is seeking to enforce the

arbitration rider against the Wilkenses. To hold that the arbitration rider is not

enforceable because U.S. Bank did not sign it would go against ordinary contract

principles. See Garcia v. Wayne Homes, LLC, 2d Dist. No. 2001CA53, 2002-Ohio-1884

(arbitration agreement enforceable against purchaser despite the fact that vendor did not

sign it).

{¶ 49} The Wilkenses further argue that the arbitration rider was not enforceable

against Ruth Wilkens because she did not sign it. On this subject, this court recently

explained:

Generally, it is well settled that a court cannot compel parties to arbitrate
disputes that they have not agreed in writing to arbitrate. I Sports v. IMG
Worldwide, Inc., 157 Ohio App.3d 593, 2004-Ohio-3113, 813 N.E.2d 4, ¶
10. But courts have recognized some limited exceptions to the rule, such
 20

as when a nonsignatory’s conduct indicates that he or she assumes the
obligation and intends to be bound by the arbitration clause. Id. at ¶ 13.
* * * [Further], under an estoppel theory, “a nonsignatory who knowingly
accepts the benefits of an agreement is estopped from denying a
corresponding obligation to arbitrate.” Id. See also Short v. Resource
Title Agency, Inc., 8th Dist. No. 95839, 2011-Ohio-1577, ¶ 15. Taylor v.
Squires Constr. Co., 8th Dist. No. 96492, 2011-Ohio-5826, 2011 WL
5506292, ¶ 30.

{¶ 50} Ruth Wilkens did not sign the note or arbitration rider, but signed the

mortgage. She averred in her affidavit that she was present during the closing, that the

lender’s representative came to her home with all of the documents, and presented them

to the Wilkenses. And she clearly benefitted from the agreement. Thus, we conclude

that although Ruth Wilkens did not sign the arbitration rider, it is enforceable against her.

{¶ 51} The Wilkenses further claim that their claims are outside the scope of the

arbitration agreement because the claims arise from an “entirely new agreement” that they

entered into with U.S. Bank on March 28, 2006. We disagree. The arbitration rider

provides that it covers

any claim, dispute, or controversy (whether based upon contract; tort,
intentional or otherwise; constitution; statute; common law; or equity and
whether pre-existing, present or future), including initial claims,
counter-claims, and third-party claims, arising from or relating to this
Agreement or the relationships which result from this Agreement * * *.

{¶ 52} Thus, any new agreement purportedly entered into between the parties

would still fall within the scope of the arbitration clause because it was based on the

original agreement, i.e., the note and mortgage.

Ocwen’s Cross Appeal
 21

{¶ 53} In its cross appeal, Ocwen claims that the trial court erred when it refused to

compel arbitration of the Wilkenses’ third-party claims against it because they are

inextricably intertwined. We agree.

{¶ 54} A signatory to an arbitration agreement cannot avoid arbitration with a

nonsignatory “‘when the issues the nonsignatory is seeking to resolve in arbitration are

intertwined with the agreement’” that the signatory signed. I Sports, 157 Ohio App.3d

593 at ¶24, quoting Thomson-CSF, S.A. v. Am. Arbitration Assn., 64 F.3d 773 (2d

Circ.1995). The signatory will be estopped from attempting to avoid arbitration because

their claims against the nonsignatory “are integrally related to the contract containing the

arbitration clause.” Id. at ¶ 24-25.

{¶ 55} Here, the Wilkenses’ third-party claims against Ocwen are integrally related

to their counterclaims against U.S. Bank — which are based on the contract containing

the arbitration clause. Indeed, the Wilkenses’ claims are nearly identical to the claims

they brought against U.S. Bank. Further, the claims arise out of the same set of facts

involving an alleged settlement agreement in a prior foreclosure action that U.S. Bank

brought against the Wilkenses (over an alleged default on a loan that John Wilkens

entered into in December 2002 — the contract containing the arbitration clause).

{¶ 56} The Wilkenses further argue that Ocwen waived its right to arbitrate

because it waited more than three and one-half years to seek arbitration. This court set

forth the law on waiver of right to arbitrate by inconsistent acts inWilkens I, which we
 22

will not repeat here. But considering that law and the strong presumption in favor of

arbitration, we conclude that Ocwen did not waive its right to arbitrate. See Wilkens I at

¶ 27-31. U.S. Bank filed the foreclosure action against the Wilkenses in August 2007.

After obtaining leave from the trial court, U.S. Bank moved to compel arbitration, also

requesting the court to stay the proceedings against Ocwen. The trial court originally

denied U.S. Bank’s motion in April 2008, and U.S. Bank appealed. After this court

remanded the case to the trial court in Wilkens I, Ocwen timely filed its motion to compel

arbitration within the deadline set by the trial court. Thus, for much of the three and

one-half years, the case was pending on appeal.

{¶ 57} Accordingly, Ocwen’s sole assignment of error is sustained.

{¶ 58} Judgment affirmed in part, reversed in part, and remanded to the lower

court for further proceedings consistent with this opinion.

It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE
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COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR