Salley v. Option One Mortgage Corp.

Justice BALDWIN

dissenting.

I would answer the certified question in the affirmative for two reasons.

First, the majority would have an arbitrator, rather than our Court, decide the question of unconscionability, due to its reasoning that Mr. Salley is challenging the contract as a whole, and not specifically the arbitration clause. I believe the majority is mistaken. I see Mr. Salley’s challenge as going solely to the arbitration provision within his contract with Option One. His lawsuit is based not on the illegality of *348his contract with Option One, but rather on Option One’s predatory “bait and switch” lending tactics as violations of the Truth in Lending, Usury and Unfair Trade and Consumer Protection Laws. The argument is not that the contract is invalid, but that the enforcement mechanism, i.e. the arbitration clause, is unconscionable and thus unenforceable. Thus, I do not believe that the United States Supreme Court decisions in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) control the result in this matter. Those decisions do not permit a challenge to the parties’ overall agreement in contravention of an arbitration provision. In Prima Paint, the plaintiff claimed that a consulting agreement was fraudulently induced, when one of the contracting parties falsely represented itself to be solvent and capable of meeting its contractual obligations. The United States Supreme Court found that the plaintiff was challenging the entire contract, and not just the arbitration clause. Thus, the Court concluded, the issue must be presented in the first instance to the arbitrator, based upon the parties’ agreement to arbitrate any disputes arising under the contract. In Buckeye, consumers alleged that the contracts they entered into with Buckeye check casing were illegally usurious, and the Court similarly . held that the challenge was to the contract itself, not solely to the arbitration clause it contained.

In contrast, if the challenge is only to the unconscionability of the arbitration provision, as here, our Court may, and should, consider that challenge. See Prima Paint, 388 U.S. 395 at 402, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (“if the claim is fraud in the inducement of the arbitration clause itself-an issue which goes to the making of the agreement to arbitrate-the federal court may proceed to adjudicate it.”) Here, Mr. Salley does not claim that his contract with Option One is illegal on its face, but rather challenges the one-sided nature of the arbitration provision, and the manner in which he was induced to enter into the arbitration provision. Accord Wisconsin Auto Title Loans, Inc. v. Jones, 290 Wis.2d 514, 714 *349N.W.2d 155, 159 (2006) (Because this appeal addressed only the unconscionability of the arbitration clause, not the validity of the contract as a whole, the issue is properly before a court and not an arbitrator).

I am also not persuaded by Option One’s contention that Mr. Salley’s position is “anti-arbitration.” We have a strong public policy in this state in favor of resolving disputes by arbitration, and we zealously interpret arbitration agreements as equivalent to all other contracts. This policy, though, should never extend to approving an arbitration agreement that is in any manner unconscionable, just as we would view any other unconscionable contract with disfavor.

Secondly, I find the arbitration provision in question both procedurally (unfairness in formation of the contract) and substantively (terms disproportionately favorable to the more powerful party) unconscionable. The majority seems to recognize the undisputable fact of procedural unconscionability in that Option One possessed a vastly superior sophistication, and virtually all of the bargaining power in this “take it or leave it” contract. As Mr. Salley’s Amici point out, a low-income borrower in need of a loan is extremely unlikely even to notice the existence of a lopsided arbitration agreement in the closing process, and even less likely to question such a provision, for fear that the loan would not be granted.

As for substantive unconscionability, the fact that, pursuant to the arbitration provision, Mr. Salley is required to pay arbitration fees to initiate his claims against Option One is enough to render the provision unreasonable.1 Arbitration fees are privately set, and significantly exceed fees for filing a civil action in state or federal court. Even if the arbitrator would ultimately allocate costs between the parties, a consum*350er required to initiate a claim in arbitration is still responsible to pay fees up front, which a low-income consumer in Mr. Salley’s position would find difficult. As the United States Supreme Court has noted, “the existence of large arbitration costs could preclude a litigant ... from effectively vindicating [his] federal statutory rights in the arbitral forum.” Green Tree Financial v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 522, 148 L.Ed.2d 373, 383 (2000). Here, there is no specific evidence about the costs of arbitration. Thus, at a minimum, I would propose that the district court should be required to hold an evidentiary hearing to determine whether the costs are prohibitive and thus unconscionable such as to invalidate the arbitration provision.

In addition, I would find the part of the arbitration provision that excludes creditor remedies to be substantively unconscionable. The majority quotes with approval the New Jersey Supreme Court’s finding that a similar provision may be oppressive to the borrower but is not unconscionable. Setting aside for the moment the issue of judicial foreclosure actions, creditor self-help remedies are also excluded from arbitration. This means that, for all practical purposes, all of borrower’s claims must be arbitrated, and all of lender’s claims are excluded from arbitration. This does not support lender’s notions that they support arbitration; to the contrary, Option One is availing itself of a judicial forum while blocking their borrowers from the same. Without expressing an opinion as to whether arbitration or a judicial forum is preferable, an agreement such as this is one-sided. Parties are free to contract for asymmetrical remedies, but when the stronger party imposes the forum restriction on the weaker party without accepting that forum for itself, that provision is problematic. See e.g. Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003).

In sum, I believe that our Court should follow the lead of courts such as the Wisconsin Supreme Court,2 Tennessee Supreme Court,3 West Virginia Supreme Court of Appeals4 *351and California Court of Appeal5 in finding that similar one-sided arbitration agreements are unconscionable and void.

. The majority notes that Option One agreed to pay Mr. Salley's arbitration fees, but this does not alter the fact that as written, the arbitration provision would require Mr. Salley to pay for arbitration. The Third Circuit held Mr. Salley's arguments based on prohibitive costs waived, but I am troubled by the fact that Option One’s agreement to pay costs removed any incentive for Mr. Salley to pursue that claim. Thus, I would address the issue of prohibitive costs in this Court’s unconscionability discussion.

. Wisconsin Auto Title Loans, Inc. v. Jones, supra.

. Taylor v. Butler, 142 S.W.3d 277 (Tenn.2004).

. Arnold v. United Companies Lending Corp., 204 W.Va. 229, 511 S.E.2d 854 (W.Va. 1998).

. Flores v. Transamerica HomeFirst, Inc., 93 Cal.App.4th 846, 113 Cal.Rptr.2d 376 (2001).