Weldon v. Asset Acceptance, LLC

BROWN, Judge,

dissenting.

I respectfully dissent. The majority holds that Weldon waived his argument that the FAA’s three-month time limit does not prevent a party from challenging the validity of the award at any time. The majority then addresses Weldon’s argument, waiver notwithstanding, and concludes that “the arbitrator properly assumed jurisdiction over the arbitration proceedings.” Op. at 1187. I disagree with the majority’s conclusions that Weldon waived his argument regarding jurisdiction and that Weldon assented to the terms of the credit agreement.

In Weldon’s appellant’s brief, he did not explicitly argue that the FAA’s three-month time limit did not prevent him from challenging the validity of the award at any time, but he repeatedly attacked the arbitrator’s jurisdiction. See Appellant’s Brief at 8, 14, 15, 23. I view Weldon’s argument in his reply brief regarding the FAA’s three-month time limit as being a response to Asset Acceptance’s argument in its appellee’s brief that Weldon waived any claim he may have had to vacate the arbitration award because he failed to timely file his motion to vacate. See Ap-pellee’s Brief at 10-11. Thus, I would hold that Weldon did not waive his argument by raising it for the first time in his reply brief, as appellee asserts.

Weldon argues that 9 U.S.C. § 12, which governs the three-month deadline for filing a notice of a motion to vacate, does not prevent him from challenging the validity of the arbitration award at any time. I find MCI Telecommunications Corp. v. Exalon Industries, Inc., 138 F.3d 426 (1st Cir.1998), instructive. In that case, Exalon Industries, Inc. (“Exalon”) failed to respond to a notice of arbitration, and the arbitrator entered an award for MCI Telecommunications Corp. (“MCI”). Id. at 428. MCI filed an action to enforce the arbitration award in district court. Id. Exalon responded by denying the existence of a valid arbitration award and arguing that no written agreement existed between the parties binding them to arbitrate the controversy. Id. The court held that, under the FAA, “determining whether there is a written agreement to arbitrate the controversy in question is a first and crucial step in any enforcement proceeding before a district court.” Id. at 429. The court concluded that “as a general matter, [9 U.S.C. § 12] ... and the other enforcement provisions of the FAA, do not come into play unless there is a written agreement to arbitrate.” Id. at 430. The court also concluded:

A party that contends that it is not bound by an agreement to arbitrate can therefore simply abstain from participation in the proceedings, and raise the inexistence of a written contractual agreement to arbitrate as a defense to a proceeding seeking confirmation of the arbitration award, without the limita*1188tions contained in [9 U.S.C. § 12], which are only applicable to those bound by a written agreement to arbitrate. Of course, if a court later determines that an arbitration agreement was in effect, and that the non-appearing party was bound by its conditions, the FAA would then fully come into operation, including the time limitations of [9 U.S.C. § 12],

Id. Based upon MCI Telecommunications Corp., I would conclude that 9 U.S.C. § 12 does not come into play if there is no agreement to arbitrate, and that Weldon can argue that there was no agreement to arbitrate. See also Danner v. MBNA America Bank, N.A., 369 Ark. 435, 255 S.W.3d 863, 868 (2007) (holding that 9 U.S.C. § 12 does not come into play unless there is a written agreement to arbitrate).5

The majority concludes that Weldon’s assent to the arbitration agreement was implied from his conduct when he used his MBNA credit card repeatedly. However, the record reveals that Weldon made his last purchase and payment in 1999, which was two years before the date appearing on the credit card terms containing the agreement to arbitrate on which Asset Acceptance relies. (Appellant’s Appendix at 142) Asset Acceptance does not designate evidence that indicates that Weldon used his credit card after November 1999. Thus, I would conclude that the 2001 arbitration agreement is inapplicable to the instant claim. See, e.g., Harlow v. Parkevich, 868 N.E.2d 822, 828 (Ind.Ct.App.2007) (holding that disputes that occurred before a letter containing an alternative dispute resolution (“ADR”) agreement was sent were not covered by the letter or its ADR provision); Mislenkov v. Accurate Metal Detinning, Inc., 743 N.E.2d 286, 291 (Ind.Ct.App.2001) (“We are bound to resolve doubts in favor of arbitration, but Accurate Metal’s claims of pre-agreement wrongdoing do not reasonably fit within the specific language the parties used in the agreement.”). Consequently, I would reverse the trial court’s grant of summary judgment in favor of Asset Acceptance.

. In drawing this conclusion, I am mindful of DeLorto v. United Parcel Service, Inc., 401 F.Supp. 408 (D.C.Mass.1975), which cited Hill v. Aro Corp., 13 Ohio Misc. 19, 275 F.Supp. 482 (N.D.Ohio 1967). In DeLorto, the court held:

Plaintiff seeks to avoid the effect of the lapse of time by asserting that the arbitrator did not have jurisdiction of the dispute and that, therefore, the time bar does not apply. This contention has been disposed of adversely to plaintiff by a ruling handed down in Hill v. Aro Corp., 275 F.Supp. 482, 385-87[sic] (N.D.Ohio, 1967), where the court ruled in substance that the expiration of the three month period provided for by the federal statute is an absolute bar to the commencement of litigation, and the fact that plaintiff premised his case as an attack on the jurisdiction of the arbitrator to make the award is immaterial.
401 F.Supp. at 409. However, it does not appear that the existence of an agreement to arbitrate was an issue in DeLorto, and in Hill v. Aro Corp. the issue was whether the parties had specified the county for arbitration in their arbitration agreement as required by state law. 275 F.Supp. at 486-487. Thus, as in DeLorto, there was not the issue of a lack of agreement to arbitrate making these cases distinguishable.