Kirk v. Credit Acceptance Corp.

FINE, J.

¶ 61. (dissenting). I disagree with the Majority on two main points, and would reverse. Accordingly, I respectfully dissent.

A. Arbitration.

¶ 62. As the Majority recognizes, we interpret unambiguous contracts as they read. This is the arbitration clause agreed-to by the parties:

The institution and maintenance of any action for judicial relief or exercise of self-help remedies shall not waive the right to submit any Dispute to arbitration, including any counterclaim asserted in any such action, and including those controversies or claims arising from the exercise of any such judicial relief or the exercise of self-help remedies.

(Emphasis added.) It is all-inclusive and covers "controversies or claims arising from the exercise of any such judicial relief or the exercise of self-help remedies."

¶ 63. As the Majority tells, us:

After Tommy J. Kirk defaulted on his car loan, Credit Acceptance Corporation repossessed Kirk's car and filed an action for a deficiency judgment, which the circuit court later dismissed. Kirk then filed this lawsuit against Credit Acceptance, alleging that the manner in which Credit Acceptance repossessed the car and filed the deficiency action violated the Wisconsin Consumer Act.

Majority, ¶ 1. Thus, in the language of the arbitration agreement, Kirk's claims in this lawsuit "aris[e] from *665[Credit Acceptance's] exercise of any such judicial relief [seeking the deficiency judgment] or the exercise of self-help remedies [by repossessing Kirk's car]." Accordingly, the arbitration clause governed, permitting but not requiring Credit Acceptance to seek arbitration. The fact that Credit Acceptance had originally sued Kirk, settled that lawsuit, and, pursuant to that settlement, dismissed the lawsuit, did not waive its right to rely on the arbitration clause here. Stated another way, Credit Acceptance would have had no reason to seek arbitration in the first action (where it sought the deficiency judgment) because it and Kirk settled that action.

¶ 64. Arbitration agreements within otherwise enforceable contracts are "valid, irrevocable and enforceable." Wis. Stat. § 788.01.

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract.

Ibid. Further, any lawsuit that is "referable to arbitration under an agreement in writing for such arbitration" must be stayed until after the agreed-to arbitration. Wis. Stat. § 788.02.

If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the *666parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

Ibid. As we have seen, the issues encompassed by Kirk's lawsuit against Credit Acceptance for its alleged violations of the Wisconsin Consumer Act are, by the clear language of the arbitration clause, "referable to arbitration." Accordingly, the circuit court erred as a matter of law when it denied Credit Acceptance Corporation's motion to compel arbitration. Certainly, contrary to the Majority's implication otherwise in paragraph 47, Credit Acceptance had no reason to either pursue its deficiency-judgment action or seek arbitration in connection with that action once it and Kirk settled that lawsuit. Indeed, Credit Acceptance had no dispute with Kirk until Kirk brought this lawsuit.

B. Self-help repossession.

¶ 65. As the Majority notes, Credit Acceptance's fifteen-day notices to cure complied with the Wisconsin Consumer Act. Thus, under the Act, Credit Acceptance was entitled to get the car back without first getting a replevin judgment. See Wis. Stat. § 425.205(lg); 425.206(l)(d). I do not understand the Majority to contend otherwise except that it concludes that a clause in the contract between Kirk and Credit Acceptance trumps §§ 425.205(lg); 425.206(l)(d). This is the clause:

Repossession of the Vehicle. If You default and We have received an entry of judgment for the recovery of the Vehicle, We may take (repossess) the Vehicle from You after We give You any notice the law requires. To repossess the Vehicle, We can enter Your property, or *667the property where the Vehicle is stored, so long as it is done peacefully and the law allows it.

Majority, ¶ 30. The clause's applicability is subject to two conditions. First, that Kirk "default." Second, that Credit Acceptance has "received an entry of judgment for the recovery of the Vehicle." The first pre-condition is satisfied: Kirk did default. The second pre-condition, however, is not satisfied: Credit Acceptance never got a "judgment for the recovery of the Vehicle" because it did not have to. Thus, the clause, which describes for the lay person what Credit Acceptance may do if it got a "judgment for the recovery" of the car, does not apply.1

¶ 66. Based on the foregoing, I would reverse and remand for further proceedings consistent with my analysis. Thus, I respectfully dissent.

I disagree with the Majority's assertion that "[t]he contract plainly states that Credit Acceptance can only repossess the car '[i]f You default and We have received an entry of judgment for the recovery of the Vehicle.'" Majority, ¶ 31 (italics by the Majority, underlining added). It does no such thing.