Nationstar Mortgage v. Adam and Bethany West, 785 S.E.2d 634

Lead Opinion

LOUGHRY, Justice:

The petitioner, Nationstar Mortgage, LLC (“Nationstar”), seeks to reverse the January 13, 2015, order of the Circuit Court of Putnam County, denying its motion to compel arbitration. The underlying case involves allegations of predatory lending practices and abusive and unlawful debt collection in connection with a mortgage loan Nationstar issued to the respondents, Adam and Bethany West (the “Wests”). Ruling on the petitioner’s motion to compel arbitration, the circuit court concluded that the arbitration provision is both proeedurally and substantively unconscionable. Upon our review of this matter, we find that the circuit court erred in deciding that the arbitration agreement is unenforceable. Accordingly, we reverse and remand this matter for referral to arbitration.

I. Factual and Procedural Background

On July 25, 2003, the Wests entered into a loan agreement with Nationstar for the principal amount of $76,500. As part of the mortgage loan, transaction, the Wests both signed a contractual rider entitled “Arbitration Agreement,” Pursuant to the agreement, either party could choose to have a dispute resolved by binding arbitration, administered by the American Arbitration Association (“AAA”) under the commercial arbitration rules then in effect. In all capital letters, located immediately above the signatory lines on the one-page rider was the following disclaimer:

BY SIGNING BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS ARBITRATION AGREEMENT. YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP THE RIGHTS TO SEEK REMEDIES IN COURT INCLUDING THE RIGHT TO A JURY TRIAL; YOUR ABILITY TO COMPEL OTHER PARTIES TO PRODUCE DOCUMENTS OR TO BE EXAMINED IS MORE LIMITED IN ARBITRATION THAN IN A LAWSUIT; AND, YOUR RIGHTS TO APPEAL OR CHANGE AN ARBITRATION AWARD ARE VERY LIMITED.

On May 2, 2013, the Wests filed a complaint in the Circuit Court of Putnam County against the petitioner and Mark Greenlee¹ arising from the origination and servicing of the mortgage loan issued by Nationstar.² Nationstar removed the civil action to the United States District Court for the Southern District of West Virginia based on diversity jurisdiction. Purportedly to destroy diversity, the Wests filed an amended complaint in which they replaced the allegations previously asserted against Mark Greenlee with similar averments against Jeffrey Moore.³ The Wests filed a motion, which was granted by order entered on October 21, 2013, to remand the case to state court,

On August 1, 2014, Nationstar filed a Motion to Compel Arbitration. The Wests filed a second amended complaint on October 13, 2014, asserting two additional counts predicated on the alleged unconscionability of the arbitration rider.⁴ At a hearing on the petitioner’s Motion to Compel Arbitration on November 21, 2014, the Wests submitted a self-executed affidavit stating that they could not afford “substantial arbitration costs.”⁵ During the hearing, the Wests informed the circuit court of their willingness to submit to arbitration provided that Nationstar would agree to the use of the AAA consumer rules of arbitration. The petitioner declined to agree to altered rules because the AAA consumer rules provide they are not designed for disputes involving real estate transactions and the subject arbitration rider expressly calls for use of the AAA commercial rules.⁶

By final order entered on January 13, 2015, the circuit court denied Nationstar’s motion to compel arbitration. Citing the Wests’ lack of sophistication in financial matters and the absence of an “opt out” provision⁷ by which the borrowers could reject the arbitration clause and still obtain the loan funds, the circuit court found that the arbitration agreement was procedurally unconscionable.¹ Secondarily, the circuit court ruled that the agreement was substantively unconscionable, looking to the one-sided nature of the promises exchanged⁸ as well as the “oppressive costs associated with arbitration,” . It is from this ruling that Nationstar seeks irelief. . .

. II. Standard of Review

As this Court recently held in syllabus point one of Credit Acceptance Corporation v. Front, 231 W.Va. 518, 745 S.E.2d 556 (2013), “[a]n order denying a motion to compel arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral order doctrine.” We review a trial court’s denial of a motion to compel arbitration for an abuse of discretion and to determine whether the trial court’s findings are supported by substantial evidence. In eases, such as this, where the challenge to the arbitration clause is based on unconscion-ability,'the issue presented is a question of law controlled by contract principles. As with all questions of law, our review of the trial court’s conclusion is plenary. See Brown ex rel. Brown v. Genesis Healthcare Corp. (“Brown I”), 228 W.Va. 646, 680, 724 S.E.2d 250, 284 (2011), rev’d on other grounds sub nom. Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012); Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). We proceed to determine whether the circuit court committed error in refusing to refer the underlying matter to arbitration.⁹

III. Discussion

Maintaining that the arbitration agreement is enforceable, Nationstar argues that the arbitration rider is neither procedurally nor substantively unconscionable. As further evidence of the trial court’s error, Nationstar cites to the circuit court’s failure to recognize the presumptive validity of the enforceability of the arbitration agreement.¹⁰ Nationstar contends the circuit court wrongly imposed a burden on it to demonstrate the agreement was specifically bargained for and that the Wests had the ability to reject arbitration.

We examine the issue of uncon-scionability pursuant to the approach set forth in Broum I. “Under West Virginia law, we analyze unconscionability in terms of two components parts: procedural unconsciona-bility and substantive unconscionability.” 228 W.Va. at 681, 724 S.E.2d at 285. To conclude that a contractual term is unenforceable on grounds of unconscionability requires a finding that the provision in issue “is both procedurally and substantively unconscionable.” Id. at 658, 724 S.E.2d at 262, syl. pt. 20, in part. And, as we observed in Broum I, “[t]he burden of proving that a contract term is unconscionable rests with the party attacking the contract.” Id. at 680, 724 S.E.2d at 284.

A. Procedural Unconscionability

Addressing the elements of what constitutes procedural unconscionability, we stated in syllabus seventeen of Brown I:

Procedural unconscionability is concerned with inequities, improprieties, or unfairness in the bargaining process and formation of the contract. Procedural un-conseionability involves a variety of inadequacies that results in the lack of a real and voluntary meeting of the minds of the parties, considering all the circumstances surrounding the transaction. These inadequacies, include, but are not limited to, the age, literacy, or lack of sophistication of a party; hidden or unduly complex contract terms; the adhesive nature of the contract; and the manner and setting in which the contract was formed, including whether each party had a reasonable opportunity to understand the terms of the contract.

228 W.Va. at 657, 724 S.E.2d at 261.

In ruling on the issue of procedural uncon-scionability, the trial court focused on the lack of “evidence in the record that the arbitration provision was specifically bargained for or that Plaintiffs [Wests] had the ability to opt-out of resolving potential disputes through arbitration.” Viewing Nationstar as more experienced in financial matters, the trial court concluded that the “Plaintiffs were simply not in a position to fully understand the fact that they were relinquishing the right to utilize the court system in signing the arbitration agreement.”

Upon distillation, the Wests’ challenge to the arbitration rider is grounded in the adhesive nature of the contract. While quick to acknowledge that “a contract of adhesion is not, in-and-of-itself, unconscionable,” the Wests assert that an “imbalance in bargaining power, unfair surprise, and absence of meaningful choice” all combined to render this particular mortgage contract unconscionable. Unfairly reducing Nationstar’s response to this issue as an agreement that deserves enforcement based solely on its endorsement,¹¹ the Wests contend that “Na-tionstar has presented no meaningful basis to reverse the circuit court’s Order.” We disagree.

In full recognition of the realities of consummating standardized business transactions¹² and the attendant unworkability of individualized bargaining¹³ this Court has stated: “[T]here are adhesion contracts that deserve to be enforced and others that do not[.]” State ex rel. AT & T Mobility v. Wilson, 226 W.Va. 572, 578, 703 S.E.2d 543, 549 (2010). In rejecting a procedural uncon-scionability challenge predicated on the “take-it-or leave-it” basis of an adhesion contract, a federal district court recently remarked:

Courts around the country have recognized that the need for pre-printed form contracts is a stark reality of today’s mass-production/consumer culture. Despite even severe disparities in bargaining power, these agreements are most often enforced, at least as long as they comport with the reasonable expectations of the parties. A contrary rule would slow commerce to a crawl.

In re Managed Care Litig., No. 00-1334-MD, 2009 WL 855963, at *5 (S.D.Fla.2009) (internal citations omitted).

As we discussed in State ex rel. Dunlap v. Berger, 211 W.Va. 549, 567 S.E.2d 265 (2002), contracts of adhesion are routinely executed without the signatory’s full reading or comprehension of the specified terms:

Customers do not in fact ordinarily understand or even read the standard terms. They trust to the good faith of the party using the form and to the tacit representation that like terms are being accepted regularly by others similarly situated. But they understand that they are assenting to the terms not read or not understood, subject to such limitations as the law may impose.

Id. at 558, 567 S.E.2d at 274 (quoting Restatement (Second) of Contracts § 221 cmt. b [1981]). In reviewing an adhesion contract to determine whether principles of fairness compel us to decide against the contract’s enforcement, we examine whether “ ‘it imposes terms beyond the reasonable expectations of an ordinary person, or oppressive or unconscionable terms.’ ” Brown I, 228 W.Va. at 683, 724 S.E.2d at 287 (citation omitted); see also State ex rel. Richmond American Homes v. Sanders, 228 W.Va. 125, 135, 717 S.E.2d 909, 918-19 (2011) (explaining that unconscionability analysis requires inquiry into fairness of contract as whole based on facts and circumstances of particular case, observing that “contractual provisions may be unconscionable in some situations but not in others”).

The grounds upon which the Wests rely to assert procedural uneonscionability are an alleged imbalance in bargaining power, unfair surprise, and absence of meaningful choice. Because contracts of adhesion are by definition typically prepared by a party with more power, we do not view that factor as persuasive in itself. See Williams v. Jo-Carroll Energy, Inc., 382 Ill.App.3d 781, 321 Ill.Dec. 844, 890 N.E.2d 566, 571 (2008) (“[J]ust because a contract is prepared by a party in a superior bargaining position, without allowing the other party to negotiate any terms, does not mean that an included arbitration clause is unconscionable.”). On the issue of the Wests’ lack of financial sophistication, we have only the trial court’s conclusory finding to that effect. See State ex rel. Ocwen Loan Servicing, LLC v. Webster, 232 W.Va. 341, 358, 752 S.E.2d 372, 389 (2013) (rejecting procedural uneonscionability challenge to an arbitration agreement based, in part, on failure of record to support trial court’s finding that mortgage loan borrowers “lacked sophistication and financial knowledge to a degree that rendered the contract unenforceable”). And, given the placement of the arbitration language-immediately above their signature lines and in all capital letters, we find the averment of unfair surprise to be similarly unpersuasive. See id. (considering location of terms “conspicuously above the signature line in all caps” advising mortgage loan borrowers of right to reject arbitration agreement in finding no procedural uneonscionability); accord In re Managed Care Litig., 2009 WL 855963 at *5 (rejecting procedural uneonscionability challenge that arbitration provision was hidden where its inclusion “just above the signature line- in bold and all caps” “was placed in one of the most conspicuous spots on the Agreement”); see also Purcell Tire & Rubber Co. v. Exec. Beechcraft, Inc., 59 S.W.3d 505, 509 (Mo.2001) (“The liability limitation' here does not violate public policy, because it is clear, unambiguous, unmistakable, and conspicuously located directly above the signature.”).

In ruling on this issue of procedural uneonscionability, the trial court found significant that the arbitration rider lacked an “opt out” provision that would have permitted the Wests to reject arbitration and still obtain the housing loan. In support of its ruling, the trial court looked to this Court’s decision in Ocwen Loan Servicing. See 232 W.Va. at 358, 752 S.E.2d at 389. While this- Court considered the “opt out” provision in Ocwen Loan Servicing as one fact that weighed against procedural uneon-scionability in that case, we did not suggest that the absence of such a provision is determinative. See id. To the extent the circuit court placed improper weight on Nationstár’s failure to include an “opt out” provisions in the subject arbitration rider, the lower court’s analysis was misguided. To clarify, the omission of an “opt out” provision in an agreement that permits the signatories to reject arbitration is just one of multiple factors to consider in evaluating a claim of procedural uneonscionability. As a result, the omission of an “opt out” provision is not in itself sufficient evidence that an arbitration agreement is grossly unfair and thus unenforceable on grounds of procedural un-conseionability. See Sanders, 228 W.Va. at 138, 717 S.E.2d at 922 (identifying lack of “opt out” provision as one factor trial court considered in affirming finding that adhesion contract was unconscionable); Syl. Pt. 9, Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 737 S.E.2d 550 (2012) (“A court in its equity powers is charged with the discretion to determine, on a case-by-case basis, whether a contract provision is so harsh and overly unfair that it should not be enforced under the doctrine of uneonscionability.”); AT & T Mobility, 226 W.Va. at 578, 703 S.E.2d at 549 (“[E]very case in which the issue of an unconscionable adhesion contract is raised must be examined on the basis of the language of that particular contract in conjunction with the specific facts surrounding the dispute.”).

Nationstar argues that the trial court wrongly imposed a burden on it to prove that the parties had specifically bargained for the inclusion of the arbitration clause. As this Court held in Dan Ryan, the enforceability of an arbitration clause does not require separate consideration when the contract as a whole is supported by adequate consideration. See 230 W.Va. at 283, 737 S.E.2d at 552, syl. pt. 6. Subsequently, in Kirby v. Lion Enterprises, Inc,, 233 W.Va. 159, 756 S.E.2d 493 (2014), we stated: “Applying the law enunciated in Dan Ryan, so long as the construction contract in its entirety is well supported by an offer, acceptance and sufficient consideration, there is no requirement that the arbitration clause be independently ‘bargained for’ in order for a contract to be formed.” Id. at 165, 756 S.E.2d at 499. Under established law,.Na-tionstar’s inability to produce evidence that the arbitration rider was separately and specifically bargained should not have been utilized by the trial court as a basis for concluding that the agreement was procedurally unconscionable.

The trial court placed significance on its conclusion that the Wests did not fully appreciate their relinquishment of the right to utilize the court system. While they aver that “[t]he closing of our loan was conducted in a hurried manner, with the entire process lasting approximately fifteen to twenty minutes,” the Wests do. not complain that they were denied the right to read the agreement or that they lacked the capacity to understand the arbitration clause. They do not assert they were coerced into signing- the document. Neither do they contend they requested, and were denied, the opportunity to take further time to read and review the loan documents or to have a third, party review them on their behalf. It has long been the rule that “ ‘[a] party to a contract has a duty to read the instrument.’ Syllabus point 5, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986).” Syl. Pt. 4, American States Ins. Co. v. Surbaugh, 231 W.Va. 288, 745 S.E.2d 179 (2013); see also Grayiel v. Appalachian Energy Partners, 230 W.Va. 91, 101, 736 S.E.2d 91, 101 (2012) (rejecting claim of grossly inadequate bargaining power where signatory “had ample time to seek counsel’s' advice before signing, there is no allegation that he was pressured into signing, and he signed oh his own free will”). The fact that the Wests may have signed a document without reading it first does not excuse them from the binding effect of the agreements contained in the executed document. See G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 411 A.2d 31, 34 (1979) (recognizing that when “a person of mature years who can read and write signs or accepts a formal written contract affecting his pecuniary interests, it'is his duty to read it, and notice of its contents will be imputed to him if he negligently fails to do so”).

Upon this Court’s review of the record in this case, the grounds relied upon by the trial court to find this particular adhesion contract procedurally unconscionable are not sustainable. ■ While the bargaining power between the parties may have been unequal, it was not.grossly unequal. See Grayiel, 230 W.Va. at 101, 736 S.E.2d at 101. Furthermore, the inclusion of an arbitration provision within a mortgage loan agreement does not strike this Court as “ ‘beyond the reasonable expectations of an ordinary person, or [as an] oppressive or unconscionable term[ ].’ ”¹⁴ Brown I, 228 W.Va. at 683, 724 S.E.2d at 287 (citation omitted). Nothing about the circumstances of the closing, which frankly comports with the quotidianus reality of real estate closings—hurried document execution with minimal comprehension by .the signatories—suggests that the agreement is unenforceable-based.on principles of unfairness. Accordingly, we conclude that the Wests did not meet their burden of proving that the subject contract is procedurally unconscionable. See Brown I, 228 W.Va. at 680,724 S.E.2d at 284.

B. Substantive Unconscionability

As grounds for finding the arbitration •clause substantively unconscionable, the trial court determined that the agreement lacked “mutual, reciprocal obligations among the parties” and further relied upon “the oppressive costs associated with arbitration.” As this Court explained in Brown I, the focus of substantive uneonscionability is on the nature of the contractual provisions rather than on the circumstances surrounding the contract’s formation:

Substantive uneonscionability involves unfairness in the contract itself and whether a contract term is one-sided and will have an overly harsh effect on the disadvantaged party. The factors to be weighed in assessing substantive uncon-scionability vary with the content of the agreement. Generally, courts should consider the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and public policy concerns.

228 W.Va. at 658, 724 S.E.2d at 262, syl. pt. 19.

In deciding that the arbitration agreement lacked sufficient mutuality to be enforceable, the trial court cited Nationstar’s right to use the courts to effect a foreclosure, to obtain possession of the property subject to its credit interest, to seek injunctive relief or appointment of a receiver, and to pursue any claim based upon default. These exceptions, in the trial court’s opinion, rendered the agreement “unduly favorable to Nationstar.” In viewing mutuality as a sine qua non to enforcement of the arbitration agreement, the circuit court overlooked this Court’s admonition in Dan Ryan “that a one-sided contract provision may not be unconscionable under the facts of all cases.” 230 W.Va. at 290, 737 S.E.2d at 559. With clear emphasis, we stated: “ ‘The concept of unconscionability must be applied in a flexible manner, taking into consideration all of the facts and circumstances of a particular case.’ ” Id. (quoting Brown I, 228 W.Va. at 657, 724 S.E.2d at 261, syl. pt. 12, in part).

Contracts such as the mortgage loan at issue are uniquely recognized to allow lenders to carve out unilateral exceptions to arbitration. As we discussed in Ocwen Loan Servicing, numerous courts have found that a financial institution’s right to protect its security interest combined with the need for compliance with statutory foreclosure procedures explains a lack of mutuality in certain loan agreements. See 232 W.Va. at 365, 752 S.E.2d at 396. We cited with approval the reasoning employed in Miller v. Equifirst Corp., No. 2:00-0335, 2006 WL 2571634 (S.D.W.Va. Sept. 5, 2006): ‘“The exception for proceedings related to foreclosure is one that is not only common in arbitration agreements but quite necessary in order to effectuate foreclosure and a retaking of the subject property by lawful processes, where needed, without breach of the peace.’ ” 232 W.Va. at 365, 752 S.E.2d at 396 (quoting Miller at *11). Further authority upon which wé relied in Ocwen Loan Servicing included Torrance v. Aames Funding Corp., 242 F.Supp.2d 862 (D.Or.2002). Noting that the excepted claims authorized for judicial resolution related to the lender’s security interest, the court observed in Torrance that such claims “are heavily regulated by statute, allowing for streamlined procedures and effective protections for both sides.” Id. at 872. Accordingly, the appellate court opined: “It does not strike this court as unreasonable, much less oppressive, to forego arbitration of such claims.” Id.; see also Lackey v. Green Tree Fin. Corp., 330 S.C. 388, 498 S.E.2d 898, 905 (App.1998) (upholding arbitration clause that permitted lender to use judicial relief to enforce security agreement pertaining to manufactured home and observing that “[sjecured transactions allow lenders to take greater risks because their ability to protect a loan is enhanced by the legal right to recover and sell the collateral in the event of default”).

Given a financial lender’s need to utilize statutory procedures for purposes of effecting foreclosure and receivership, the fact that Nationstar is not required to arbitrate all of its claims that may arise under the credit transaction does not render the arbitration agreement unconscionable. This Court has made it clear that, rather than full bilaterality, only a modicum of bilaterality is required to avoid a determination of uncon-scionability. See Sanders, 228 W.Va. at 137, 717 S.E.2d at 921; see generally Dan Ryan, 230 W.Va. at 288-89, 737 S.E.2d at 557-58 (discussing lack of mutuality requirement under modem contract law). Without question, agreements related to mortgage loans that involve a lender’s right to protect its security interest may require the use of the court system to enforce that, security interest. Consistent with the rationale cogently articulated in Ocwen Loan Servicing, the provision of an exception to arbitration for disputes rooted in the need to effect a foreclosure or to protect a security interest does not ipso facto create an overly one-sided contract that is unreasonable or unfair.

The other basis relied upon by the circuit court in finding the arbitration clause substantively unconscionable was its reference to “the oppressive costs associated with arbitration.” Nationstar correctly observes that the Wests have never stated that they are unable to afford to pay any arbitration fees or costs. Instead, they state that they “cannot afford substantial arbitration costs.” Similarly, the circuit court has provided this Court with no factual basis for its conclusion that the costs of arbitration are “oppressive.”

At this point, the costs to be borne by the Wests as a result of arbitration are wholly speculative. See Dunlap, 211 W.Va. at 551, 567 S.E.2d at 267, syl. pt. 4, in part (holding that party challenging costs as unreasonably burdensome has burdeh to prove “costs likely to be imposed”); Heller v. TriEnergy, Inc., No. 5:12-CV-45, 2012 WL 2740870, at NS (ND.W.Va. July 9, 2012) (finding that conclusory allegation of unreasonable costs of arbitration absent evidence of such costs “is inadequate to show the costs likely to be imposed”); Millas v. Morgan Stanley & Co., No. 08-CV-0573, 2008 WL 5095917, at *5 (S.D.Ill. Dec. 1, 2008) (rejecting “generic allegation of unfairness in the costs involved in arbitration” and recognizing that “‘party must provide some individualized evidence to show that she is likely to face prohibitive costs ... and that she is financially incapable of meeting those costs’ ”) (citation omitted). Under the agreement, Nationstar is responsible for the first $250 of arbitration and the arbitrator is charged, with deciding who is ultimately responsible for paying the fees associated with the arbitration.¹⁵ The Wests maintain that the filing fees under AAA are determined by the amount of recovery that is being sought and submit they could have to pay an initial filing fee of between $3,250 to $7,000.¹⁶

Upon our review of the record in this case, the basis for the trial court’s decision that the arbitration agreement is substantively unconscionable is both legally and factually improper. The circuit court relied on a non-existent requirement of complete mutuality of obligations in finding the agreement unenforceable on grounds of substantive unconscionability. In determining that the costs of arbitration were necessarily oppressive, the circuit court relied upon a record devoid of evidence that the Wests could not pay the costs of arbitration. An unadorned averment, couched hypothetically, that they could not “afford substantial arbitration costs” is not sufficient to meet their burden of demonstrating that such costs would be unreasonably burdensome. See Dunlap, 211 W.Va. at 551, 567 S.E.2d at 267, syl. pt. 4. Accordingly, we determine that the Wests did not demonstrate that the arbitration agreement is substantively unconscionable.

IV. Conclusion

Based on the foregoing, the decision of the Circuit Court of Putnam County is reversed, and this matter is remanded for entry of an order referring the underlying case to arbitration.

Reversed and remanded.

Justice WORKMAN dissents and reserves the right to file a dissenting opinion.

Notes

1 . Mr. Greenlee, a West Virginia resident, was named as a defendant because he was the alleged appraiser for the subject mortgage loan.

2 . In their complaint, the Wests alleged predatory lending, unconscionable contract, and fraud as to Nationstar. Regarding Mr. Greenlee, they asserted dishonesty, misrepresentation, and breach of professional standards.

3 . Mr. Moore, a licensed real estate appraiser and a West Virginia resident, was named as a defen- • dant based on his alleged appraisal of the property for which the Wests obtained a mortgage loan from Nationstar, Because the filings related to removal are not included in the appendix record, this Court has no basis upon which to address Nationstar's contention with regard to diversity jurisdiction.

4 . One count set forth allegations of an "Unconscionable Delegation Provision Within the Arbitration Clause” and the other asserted an "Unconscionable Arbitration Clause."

5 . No advance notice had been provided to Na-tionstar regarding the affidavit or its contents.

6 . The AAA consumer rules were purportedly not in effect at the time the arbitration rider was executed by the Wests.

7 . See State ex rel. Ocwen Loan Servicing, LLC v. Webster, 232 W.Va. 341, 752 S.E.2d 372 (2013) (recognizing existence of "opt out” provision as factor which supported finding that arbitration contract was not unconscionable).

8 . Under the arbitration agreement,, Nationstar had the right to proceed in court with respect to foreclosure, to obtain, prejudgment injunctive relief, appointment of a receiver, and claims related to damages arising from the Wests default of the loan terms.

9 . The trial court claimed its authority to consider whether the arbitration provision was enforceable arose from the specific challenge to the delegation provision as unconscionable. While the Wests did aver unconscionability of the delegation clause in their second amended complaint, there is no specific delegation clause in the contract at issue. Thus, the trial court’s authority to address the enforceability of the arbitration clause arose not from the challenge to the delegation clause but from the additional ■ allegation raised by the Wests in the second amended complaint that the arbitration clause itself was unconscionable. See generally Brown I, 228 W.Va. at 675, 724 S.E.2d at 279; see also State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 254, 692 S.E.2d 293, 297 (2010) (discussing authority of court, under severability doctrine, to address contractual-based challenges to arbitration clause such as fraud, duress, or unconscionability).

10 . As the Wests observe, Nationstar misapprehends the nature of the presumption. While there has long been a presumption that the parties intended to resolve matters through arbitration where an arbitration clause is included in an agreement, that presumption is subject to challenge based on fraud, duress, unconscionability, or other valid contractual defenses. See Syl. Pt. 3, Board of Educ. v. W. Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977); Syl. Pt. 9, Brown I, 228 W.Va. 646, 724 S.E.2d 250.

11 . In actuality, Nationstar merely framed tlje issue in this "case as "whether a duly signed arbitration agreement ... [could] be avoided by inferences of illegitimacy that are devoid of factual support and seek to undermine and reverse the presumptive legitimacy of arbitration agreements themselves.”

12 . As we observed in Brown I, " '[t]here is nothing inherently wrong with a contract of adhesion. Most of the transactions of daily life involve such contracts that are drafted by one party and presented on a take it or leave it basis. They simplify standard transactions^]’ ” 228 W.Va. at 682, 724 S.E.2d at 286 (quoting John D. Calamari, Joseph M. Perillo, Hornbook on Contracts, § 9.43 (6th ed.2009)); see also State ex rel. Dunlap v. Berger, 211 W.Va. 549, 557, 567 S.E.2d 265, 273 (2002) (stating that " 'a rule automatically invalidating adhesion contracts would be completely unworkable’ ”) (citation omitted).

13 .See Brown I, 228 W.Va. at 682, 724 S.E.2d at 286 (" 'One of the purposes of standardization is to eliminate bargaining over details of individual transactions_’”) (quoting Restatement. (Second) of Contracts § 211 cmt. b [1981]).

14 . With the enactment of the Dodd-Frank Act on July 22, 2010, mandatory arbitration clauses can no longer be included in residential home loans. Because that legislation is not retroactive, it has no effect on the matter before us. See Ocwen Loan Servicing, 232 W.Va. at 355, 752 S.E.2d at 386.

15 . Nationstar submits that it is possible that the Wests might not be responsible for any arbitration fees. Nationstar has agreed to arbitrate outside the AAA and.submits that this would signficantly reduce any costs or fees associated with arbitration. To date, the Wests have refused to proceed in a non-AAA forum, stating they will only submit to arbitration if Nationstar agrees to use the consumer rules of arbitration. Under the consumer rules, the Wests assert they would only be required to pay a $200 filing fee and the remaining costs of arbitration would be borne by Nationstar.

16 . The Wests claim that the circuit court made its determination of oppressive costs based "on a record replete with evidence of the high costs of commercial arbitration.” Our review of the record submitted in this case revealed only one statement regarding costs and that was a reference by counsel to a filing fee of $4,350.

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Dissenting Opinion

WORKMAN, Justice,

dissenting.

In reversing the well-reasoned decision of the circuit court, the majority destroys consumer rights through its overly harsh analysis of the Wests’ unconscionability contract defense. The real question in this case is whether the Wests met their burden under Green Tree Financial Corp.-Alabama v. Randolph 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000), to demonstrate that they face such “high costs” if compelled to arbitrate their claims against Nationstar that they are effectively precluded from vindicating their rights in the arbitral forum. Id. at 90, 121 S.Ct. 513. The record is clear that the Wests have met them burden of showing the likelihood of incurring such costs, and I would invalidate the arbitration agreement as “prohibitively expensive.” Id. at 92, 121 S.Ct.-513. I therefore respectfully dissent.

This case presents just another example of the' troubling issues surrounding arbitration clauses inserted into form contracts in consumer transactions by powerful out-of-state corporations.¹ As Justice Ginsburg recently commented, the precedent of the United States Supreme Court has “predictably resulted in the deprivation of consumers’ rights to seek redress for losses, and, turning the coin, they have insulated powerful economic interests from liability for violations of consumer-protection laws.” DIRECTV, Inc. v. Imburgia, — U.S. —, 136 S.Ct. 463, 477, 193 L.Ed.2d 365 (2015) (Ginsburg, J., dissenting); see e.g„ Judith Resnick, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. 2804, 2804 (2015) (“Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so— rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights.”). Because “consumers lack bargaining power to change the terms of consumer adhesion contracts ex ante, ‘[t]he providers [have] won the power to impose a mandatory, no-opt-out system in their own private “courts” designed to preclude aggregate litigation.’ ” DIRECTV, 136 S.Ct. at 477 (Ginsburg, J., dissenting) (quoting Resnik, Fairness in Numbers: A Comment on AT & T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harv. L. Rev. 78, 133 (2011)).

Although the Supreme Court has stressed that federal policy under the Federal Arbitration Act, 9 United States Code § 2 (West 2016), favors the enforcement of valid arbitration agreements,² the Supreme Court has been equally clear that a party can be forced into arbitration only if he or she has in fact entered into a valid, enforceable contract waiving his or her right to a judicial forum. AT&T Tech, Inc. v. Commc’n Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Whether the parties actually agreed to arbitrate is determined under ordinary state-law contract principles. Penn v. Ryan’s Family Steak Houses, Inc., 269 F.3d 753, 768-59 (7th Cir.2001). An arbitration clause may be declared unenforceable upon the same grounds at law ox-equity for the revocation of any contract. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). Therefore, a traditional unconsciona-bility contract defense still exists because the FAA’s saving clause permits it. Id.

Consistent with these principles, this Court still has the authority to find an arbitration clause invalid due to unconscionability. “[W]e analyze unconscionability in terms of two component parts: procedural uncon-scionability and substantive unconscionability.” Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 681, 724 S.E.2d 250, 285 (2011) {“Brown I”). Substantive unconscionability goes to the specific terms of the contract and procedural unconscionability concerns the formation of the agreement. While the presence of both procedural and substantive problems is necessary for an ultimate finding of unconscionability, such a finding may be appropriate when a contract presents pronounced substantive unfairness and a minimal degree of procedural unfairness, or vice versa. To be unenforceable, a contract term must—“at least in some small measure”—be both proeedurally and substantively unconscionable. Id, at Syl. Pt. 20; Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 289, 737 S.E.2d 550, 558 (2012).

The United States Court of Appeals for the Fourth Circuit explained the particular characteristics of both procedural and substantive unconscionability in Carlson v. General Motors Corp., 883 F.2d 287 (4th Cir.1989):

Substantive ' unconscionability involves those one-sided terms of a contract from which a party seeks relief (for instance, “I have the right to cut off one of your child’s fingers for each day you are in default”), while procedural unconscionability deals with the process of making a contract— “bargaining naughtiness” (for instance, “Just sign here; the small print on the back is only our standard form”). Each of these branches of unconscionability has common-law cousins; procedural uncon-scionability looks much like fraud or duress in contract formation, and substantive unconscionability reminds us of contracts or clauses contrary to public policy or illegal.

Id. at 296 n. 12 (quoting James J, White & Robert S. Summers, Uniform Commercial Code § 4-3, at 186 (3d ed.1988)).

Our substantive/procedural analysis is more of a sliding scale than a true dichotomy. The more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to establish un-conseionability. Syl.Pt. 9, Brown v. Genesis Healthcare Corp., 229 W.Va. 382, 729 S.E.2d 217 (2012) (Brown II). See Lonegrass, Finding Room for Fairness in Formalism-the Sliding Scale Approach to Uneonsciona-biliby, 44 Loy, U. -Chi.. L.J. 1, 12 (“[T]he sliding scale approach does not require that procedural and substantive unconscionability each be present in any particular degree; rather, a relatively large quantum of one type of unconscionability can offset a relatively small quantum of the other. Thus, under the sliding scale approach, the two prongs are viewed in tandem, permitting the court to 'make a finding of unconscionability if the overall weight of the facts and circumstances favors intervention.”) (footnotes omitted); Cordova v. World Fin. Corp. of N.M., 146 N.M. 256, 208 P.3d 901, 908 (2009) (“The more substantively oppressive a contract term, the less procedural unconscionability may be required for a court to conclude the offending term is unenforceable.”).

As discussed below, taken together, the oppressive and one-sided substantive provisions of the arbitration clause at issue in the instant case and the inequality of bargaining power between the parties render the arbitration clause in the Wests’ loan agreement unconscionable. Therefore, the circuit court appropriately applied traditional tools of our State contract law when it held the arbitration clause was unenforceable.

A. The Arbitration Clause is Procedurally Unconscionable

There can be no reasonable disagreement that the contract between the Wests and Nationstar was a contract of adhesion at the time of formation, but the majority is correct in determining that our analysis does not end here. “[T]he times in which consumer contracts were anything other than adhesive are long past.”³ Concepcion, 563 U.S. at 346-47, 131 S.Ct. 1740. While adhesion can be a factor when arguing uneonscionability, the mere lack of a meaningful choice and negotiation between the parties will not, standing alone, establish uneonscionability.⁴

The majority goes on to address the elements of procedural uneonscionability pursuant to Brown 7.⁵ While I agree that the omission of an “opt out” provision is not in itself sufficient to establish procedural uneon-seionability, the Brown I factors, taken as a whole, weigh in favor of procedural uncon-scionability in this case.

It is clear that the Wests had no reasonable opportunity to understand the terms of the contract they were signing. They had no opportunity to review the arbitration rider prior to the closing; the arbitration rider was contained in a stack of papers prepared by and provided by Nationstar; and the Wests were unaware they signed an arbitration agreement. Furthermore, the documents Nationstar provided to the Wests did not contain information about the American Arbitration Association (AAA) rules and protocols that governed commercial arbitration or the costs associated with filing a claim.⁶

Finally, the bargaining power between Na-tionstar and the Wests was unquestionably unequal in that the Wests are relatively unsophisticated consumers contracting with corporate defendants who drafted the arbitration clause and included it as boilerplate language in the loan agreement. Simply put, there was no “ ‘real and voluntary meeting of the minds’ of the parties at the time that the contract was executed.” Brown I, 228 W.Va. at 681, 724 S.E.2d at 285.

Further, the arbitration provision is substantively unconscionable because of the prohibitive costs the Wests would incur in filing an action for commercial arbitration. When these costs are coupled with the total lack of mutuality, the sliding scale is tipped heavily in favor of complete uneonscionability. See 1 E. Allan Farnsworth, Farnsworth on Contracts § 4.28, at 585 (3d ed. 2004) (“A court will weigh all elements of both substantive and procedural uneonscionability and may conclude that the contract is unconscionable because of the overall imbalance.”).

B. The Arbitration Clause is Substantively Unconscionable

The Wests contend they are facing paying more than $5,750 (and possibly well over $14,700) to arbitrate their claims against Na-tionstar under the AAA Commercial Rules and Mediation Procedures. It is difficult to ascertain the precise costs of the proceedings because one or three arbitrators may be appointed to hear the matter.⁷ In addition, the AAA may require the parties to deposit in advance of the hearing such sums as it deems necessary to cover the expense of the arbitration. AAA Comm. R. 56(a). Following the hearing, the Wests could incur thousands more in shared expenses for the arbitrator and other costs.⁸ The prospect of incurring these onerous costs and fees effectively precludes the Wests’ opportunity to vindicate their consumer rights.

In the landmark case of Green Tree, the United States Supreme Court directly addressed the question of whether arbitration fees potentially incurred by consumers could invalidate an arbitration clause. In Green Tree, a mobile home buyer brought a class-action suit against the lender for alleged Truth in Lending Act (“TILA”) and Equal Credit Opportunity Act (“ECOA”) violations in the loan agreement, which required that all disputes arising from or related to the contract were to be resolved by binding arbitration. 531 U.S. at 83, 121 S.Ct. 513. The Supreme Court reversed the Eleventh Circuit’s holding that the arbitration agreement’s silence as to the filing fees, arbitrators’ costs, and other arbitration expenses had rendered the arbitration provision unenforceable because it exposed the buyer to potentially steep arbitration costs. Id. at 84, 121 S.Ct. 513. Acknowledging that the Green Tree parties had provided no detail of the expected arbitration fees and costs, the Supreme Court observed that while “the existence of large arbitration costs could preclude a litigant” of limited resources from effectively pursuing his or her claims in an arbitral forum, “[t]he ‘risk’ that [the buyer] will be saddled -with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement.” Id. at 92, 121 S.Ct. 513. Essentially, Green Tree placed upon the party asserting the prohibitive expense the burden of showing the likelihood of incurring such costs. See Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir.2001) (“[A]ppropriate inquiry is one that evaluates whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation, ie., 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”); Burden v. Check Into Cash, LLC, 267 F.3d 483, 492 (6th Cir.2001) (finding Green Tree requires party resisting arbitration to show likelihood of prohibitive expenses).

Consistent with Green Tree, the court in Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 655 S.E.2d 362 (2008), found an arbitration clause substantively unconscionable because the collective effect of its provisions would have precluded the plaintiffs from “ ‘vindicating [their] ... rights in the arbitral forum.’” Id. at 371 (quoting Green Tree, 531 U.S. at 90, 121 S.Ct. 513). In Tillman, the court was persuaded by the prohibitively high costs the borrowers would face to bring their claims in the commercial arbitration setting.

In terms of ability to pay, the evidence of plaintiffs’ limited financial means is uncontested. Plaintiffs live paycheck to paycheck and usually have very little money left in their bank accounts after paying their monthly bills. The arbitration clause specifies that AAA will administer any arbitration between the parties to the loan agreement, and evidence in the record indicates that the average daily rate of AAA arbitrator compensation in North Carolina is $1,225.00. According to the arbitration clause, when an arbitration lasts more than eight hours, the loser will be charged with costs. Moreover, the clause provides for a de novo appeal before a panel of three arbitrators, and again, the loser pays the costs. For example, at the average rate, a two-day appeal would cost the losing party $7,350.00 in arbitrator fees. Plaintiffs simply do not have the resources to risk facing these kinds of fees.

Id. at 371; but see Torrence v. Nationwide Budget Fin., 232 N.C.App. 306, 753 S.E.2d 802, 812 (2014) (recognizing Tillman’s substantive unconscionability analysis is undermined by “[b]oth Concepcion and Italian Colors⁹ [which] hold that a class action waiver does not render an arbitration agreement unconscionable.”).

In the instant case, the Wests do not have the financial resources to risk losing sky-high commercial arbitration fees in them fight to save their home. The majority belittles the Wests’ legitimate concerns as “wholly speculative.” However, it would be more judicious for this Court to reject NationstaPs argument—that simply because the arbitrator might order it to pay the costs of arbitration, the clause can be rescued—as wholly speculative.

The circuit court correctly determined that the threat of oppressive costs rendered the arbitration clause unconscionable and, therefore, unenforceable. Consequently, I would affirm the circuit court’s ruling.

1 , See Melissa T. Lonegrass, Finding Room for Fairness in Formalism-the Sliding Scale Approach to Unconscionability, 44 Loy. U. Chi. L.J, 1, 3 (2012) ("Standard forms are ubiquitous, but hardly innocuous. In fact, form contracts are rife with the potential for abuse, Their nature and universality permit drafters to impose any number of onerous terms on unwary consumers, including arbitration agreements, class action waivers, liquidated damages provisions, warranty disclaimers, exculpatory clauses, and choice-of-law provisions. Form contracts even empower drafters to shift risks at will, often without warning, through unilateral change-of-terms clauses—an increasingly common favorite of credit card issuers, banks, utility companies, and a host of other merchants and service providers. Although essential to the American economy, form contracts expose consumers to a parade of one-sided, risk- and rights-shifting provisions.") (footnotes omitted).

2 . “[D]ue regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.” Volt Inf. Sciences, Inc. v. Bd. of Tr. of Leland Stanford Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

3 . "Experts have long acknowledged that consumers do not read form contracts before signing them,' and have recently come to better understand the" more fundamental; and sobering, truths about standard contracts: consumers who actually read consumer contracts do not understand them, either because they lack the requisite legal training, or worse, basic literacy skills.” Lonegrass, supra at 3-4 (footnotes omitted).

4 . Admittedly, the United States Supreme Court in Concepcion "did not automatically entitle defendants to arbitration, but it did make it easier for defendants to enforce their contract provisions.” Megan Barnett, There Is Stilt Hope for the Little Guy: Uneonscionability Is Still A Defense Against Arbitration Clauses Despite AT & T Mobility v. Concepcion, 33 Whittier L. Rev. 651, 664 (2012).

5 . In syllabus point seventeen of Brown I, we held:

Procedural uneonscionability is concerned with inequities, improprieties, or unfairness in the bargaining process and formation of the contract. Procedural uneonscionability involves a variety of inadequacies that results in the lack of a real and voluntary meeting of the minds of the parties, considering all the circumstances surrounding the transaction. These inadequacies include, but are not limited to, the age, literacy, or lack of sophistication of a party; hidden or unduly complex contract terms; the adhesive nature of the contract; and the manner and setting in which the contract was formed, including whether each party had a reasonable opportunity to understand the terms of the contract. 228 W.Va. 646, 724 S.E.2d 250.

6 . I recognize that "even the most diligent consumer who on his or her own initiative obtains the rules from the AAA and reads them would have a most difficult time accurately assessing his or her exposure.” DeVito v. Autos Direct Online, Inc., 37 N.E.3d 194, 202-03 (Ohio 2015). A review of the 2013 amendments to the AAA’s rules reflects a set of elaborate rules and procedures for commercial arbitration (the "Commercial Arbitration Rules and Mediation Procedures”), and a separate set of more streamline rules and procedures for consumer disputes (the "Consumer Arbitration Rules”).

7 . See AAA Comm. R. 16(a) ("If the arbitration agreement does not specify the number of arbitrators, the dispute shall be heard and determined by one arbitrator, unless the AAA, in its discretion, directs that three arbitrators be appointed. A party may request three arbitrators in the Demand or Answer, which request the AAA will consider in exercising its discretion regarding the number of arbitrators appointed to the dispute.").

8 . See AAA Comm. R. 54 ("The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the arbitration, including required travel and other expenses of the arbitrator, AAA representatives, and any witness and the cost of any proof produced at the direct request of the arbitrator, shall be borne equally by the parties, unless they agree otherwise or unless the arbitrator in the award assesses such expenses or any part thereof against any specified party or parties.”).

9 . American Express Co. v. Italian Colors Rest., — U.S. —, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013).

Case Details

Case Name: Nationstar Mortgage v. Adam and Bethany West

Court Name: West Virginia Supreme Court

Date Published: Apr 7, 2016

Citations: 785 S.E.2d 634; 2016 W. Va. LEXIS 202; 2016 WL 1692357; 237 W. Va. 84; 15-0128

Docket Number: 15-0128

Court Abbreviation: W. Va.