LOUISIANA - APPEAL TO COURT OF APPEAL -DEFEATING ARB EFFORT

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LOUISIANA - APPEAL TO COURT OF APPEAL -DEFEATING ARB EFFORT

Postby Administrator » Thu Oct 09, 2014 5:14 am

THIS CASE WAS WON IN THE LA. APP. 2D CIRCUIT COURT OF APPEAL


THERE WERE 4 CASES: WE WON 3 OF 4; 4TH CASE WAS APPEALED BY CREDITOR AND THE CREDITOR DISMISSED THE APPEAL AFTER CLEAR INDICATION OF THE COURT'S HOLDINGS IN 1ST 3 APPEALS.

3 CASES APPEALED BY LEGGIO
1 CASE APPEALED BY CREDITOR BANK AFTER TRIAL COURT GRANTED LEGGIO'S MOTION TO RECONSIDER/FOR NEW TRIAL AND RULED IN HIS FAVOR

ISSUES HERE ARE VERY IMPORTANT.
==========



COURT OF APPEAL, SECOND CIRCUIT

STATE OF LOUISIANA

DOCKET NO. 43,567-CA



CHASE BANK USA, N.A. APPELLEE



VERSUS



VINCENT L. LEGGIO APPELLANT


ON APPEAL FROM THE
SHREVEPORT CITY COURT IN
THE PARISH OF CADDO, STATE OF LOUISIANA
DOCKET NO. 2007R04188
HONORABLE DAVID RABB, AD HOC CITY COURT JUDGE




APPEAL BY DEFENDANT-APPELLANT,
VINCENT L. LEGGIO



ORIGINAL BRIEF ON BEHALF OF
VINCENT L. LEGGIO
APPELLANT





Submitted by:

Bodenheimer, Jones & Szwak, LLC



By: ______________________________
David A. Szwak LBR# 21157
509 Market St., Ste. 730
Mid South Tower
Shreveport, Louisiana 71101
Telephone: [318] 424-1400
FAX: [318] 221-6555
ATTORNEYS FOR VINCENT L. LEGGIO, APPELLANT


THIS IS A CIVIL CASE TABLE OF CONTENTS
Page
________________________________________________________

TABLE OF AUTHORITIES....................................... iii

STATEMENT OF THE GROUNDS ON WHICH THE JURISDICTION OF THIS
COURT IS INVOKED...................................... 1

SPECIFICATIONS OF ERROR.................................... 3

ISSUES PRESENTED FOR REVIEW................................ 4

STATEMENT OF THE CASE...................................... 4

ACTION OF THE TRIAL COURT.................................. 7

ARGUMENT:

1. The trial court erred in finding that it had no
choice but to confirm the arbitration award........... 8

2. The trial court erred in finding that the arbitral
forum could decide its own jurisdiction and whether
Appellant agreed to arbitrate over Appellant’s
objection that he never agreed to arbitrate........... 10

3. The trial court erred in refusing to review the
evidence to determine if there was a written
and signed agreement to arbitrate in evidence......... 14

4. The trial court erred in refusing to apply La.
R.S. 9:3511 and La. R.S. 51:1418, which protect
Louisiana citizens from foreign venues and
jurisdictions in consumer credit contracts............ 15

5. The trial court erred in finding that Appellee
had standing and a right to pursue collection of
the subject account................................... 17

6. The trial court erred in refusing to vacate the
arbitration award and in denying
defendant’s-Appellant’s motion for new trial.......... 19

CONCLUSION................................................. 20

CERTIFICATE................................................ 21

VERIFICATION............................................... 22




















ii.


TABLE OF AUTHORITIES

Cases Page[s]
Aguillard v. Auction Management Corp.,
908 So.2d 1
[La. 6/29/05] 16-17
Almacenes Fernandez, S.A. v. Golodetz,
148 F.2d 625, 628
[2d Cir. 1945] 14
Barker v. Trans Union LLC,
Not Reported in F.Supp.2d, 2004 WestLaw 783357
[U.S.D.C. N.D. Ill. 2004] 13
Beckman v. H&R Block Financial Advisors, Inc.,
Slip Copy, 2007 WestLaw 1288011
[U.S.D.C. Minn. 2007] 9
Bensadoun,
316 F.3d at 175 14
Boran v. Columbia Credit Services, Inc.,
Slip Copy, 2006 WestLaw 3388400
[U.S.D.C. Conn. 2006] 13-14
Brentwood Medical Associates v. United Mine Workers of America,
396 F.3d 237, 242
[3d Cir. 2005] 9
CACV of Colorado, LLC v. Acevedo,
Not Reported in A.2d, 2005 WestLaw 2981673
[Conn. Super. 2005] 6
CACV of Colorado, LLC v. Cassidy,
Not Reported in A.2d, 2005 WestLaw 2981680
[Conn. Super. 2005] 6
CACV of Colorado, LLC v. Corda,
Not Reported in A.2d, 2005 WestLaw 3664087
[Conn. Super. 2005] 6
CACV of Colorado, LLC v. McNeil,
Not Reported in A.2d, 2005 WestLaw 2981676
[Conn. Super. 2005] 6
CACV of Colorado v. Janice Robinson,
No. 505,474-C, 1st Judicial District Court,
Caddo Parish, Louisiana [Judge Scott] 12
CACV of Colorado, LLC v. Werner,
Not Reported in A.2d, 2005 WestLaw 2981677
[Conn. Super. 2005] 6
Carbajal v. Household Bank, FSB,
2003 WestLaw 22159473 *6 n.6
[U.S.D.C. N.D. Ill. 2003] 10
Carty v. Nationwide Ins Co.,
149 A.D.2d 328
[N.Y. 1st Dept. 1989] 9
Chastain v. Robinson-Humphrey Co.,
957 F.2d 851, 854-56
[11th Cir. 1992] 10
Coastal Credit Co. v. American Waste and Pollution Control Co.,
583 So.2d 553
[La. App. 3 Cir. 1991] 18-19
Collins v. Prudential Ins. Co. of America,
752 So.2d 825
[La. 2000] 20
Conagra Poultry Company v. Collingsworth,
705 So.2D 1280
[La. App. 2 Cir. 1/21/98] 14
Crump v. Bank One Corp.,
817 So.2d 1187
[La. App. 2 Cir. 2002] 3
Davis Alarms, Inc. v. Aftar, 15 Misc.3d 1142[A],
841 N.Y.S.2d 819, 2007 WestLaw 1558866
[N.Y. City Civ. Ct. 2007] 9
D.H. Holmes Co., Ltd. v. Dronet,
432 So.2d 1135
[La. App. 3 Cir. 1983] 19
Downs v. Hammett Properties, Inc.,
899 So.2d 792
[La. App. 2d Cir. 4/6/05] 18
FIA Card Services, N.A. v. Gibson,
--- So.2d ----, 2008 WestLaw 725415
[La. App. 2 Cir. 2008] 10,14,
17-18
First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985
[1995] 11
Greene v. Chase Manhattan Automotive Finance Corp.,
Not Reported in F.Supp.2d, 2003 WestLaw 22872102
[U.S.D.C. E.D. La. 2003] 11
Interocean Shiping Co. v. Nat'l Shipping & Trading Corp.,
462 F.2d 673, 676
[2d Cir. 1972] 14
LaCour's Drapery Co., Inc. v. Brunt Const., Inc.,
939 So.2d 424, 2006 WestLaw 1751899
[La. App. 1 Cir. 6-28-06] 9
Lawrence v. Household Bank [SB], N.A.,
343 F.Supp.2d 1101
[U.S.D.C. M.D. Ala. 2004] 13
Lee v. Deloitte & Touche, LLP,
2002 WestLaw 31433421 *2
[U.S.D.C. N.D. Ill. Oct. 31, 2002] 10
Maranto v. Citifinancial Retail Servs.,
2005 WestLaw 3369948, 2005 U.S.Dist.LEXIS 31352 *4
[U.S.D.C. W.D. La. 2005] 11
Marsh Farms v. Olvey,
974 So.2d 194
[La. App. 2 Cir. 2008] 9
Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 63 n. 9, 115 S.Ct. 1212, 1219 n. 9,
131 L.Ed.2d 76
[1995] 12
Matterhorn,
763 F.2d at 868 10
Michigan Family Resources, Inc. v. Service Employees,
475 F.3d 746
[6th Cir. 2007] [Mich.] 9
Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc.,
473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444
[1985] 11
Montelepre v. Waring Architects,
787 So.2d 1127
[La. App. 4th Cir. 5/16/01] 10
Painewebber Incorporated v. The Chase Manhattan Private Bank,
260 F.3d 453, 462
[5th Cir. 2001] 12
Par-Knit Mills, Inc. v. Stockbridge Fabrics Co.,
636 F.2d 51, 54
[3d Cir. 1980] 14
Posadas v. The Pool Depot, Inc.,
858 So.2d 611 [La. App. 1 Cir. 2003],
w.d., 857 So.2d 502, 2003-2125 [La. 2003] 16-17
Diana Poulson v. Trans Union LLC,
406 F.Supp.2d 744
[U.S.D.C. E.D. Tex. 2005] 13
Rainbow Investments, Inc. v. Super 8 Motels, Inc.,
973 F.Supp. 1387, 1390
[U.S.D.C. M.D. Ala. 1997] [Thompson, C.J.] 13
Richland Parish Police Jury v. Debnam,
968 So.2d 294
[La. App. 2 Cir. 10/17/07] 19
James Riley v. GMAC,
cause no. 1:01-CV-00869-WS-D
[U.S.D.C. S.D. Ala. 12/16/02] [docket entry #106] 12-13
Schaffer & Assoc., Inc. v. Demech Contractors, Ltd.,
101 F.3d 40, 43
[5th Cir. 1996] 20
Simpson v. Grimes,
849 So.2d 740 02-869 [La. App. 3 Cir. 2003],
w.d., 861 So.2d 567 [La. 2003] 17
Sphere Drake Insurance Ltd. v. All American Insurance Co.,
256 F.3d 587, 591
[7th Cir. 2001] 10
Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co.,
263 F.3d 26, 30
[2d Cir. 2001] 13
Stark,
381 F.3d at 798 9
Toppings v. Meritech Mortg. Services, Inc.,
140 F.Supp.2d 683
[U.S.D.C. S.D. W.Va. 2001] 6
Toppings v. Meritech Mortg. Services, Inc.,
DOCKET #69, #: 2:00-cv-01055
[U.S.D.C. S.D. W.Va. 9/21/01] 7
Viets v. Andersen,
2003 WestLaw 21525062 *7
[U.S.D.C. S.D. Ind. June 26, 2003] 10
Vigil v. Sears Nat. Bank,
205 F.Supp.2d 566
[U.S.D.C. E.D. La. 2002] 17
Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Univ.,
489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254,
103 L.Ed.2d 488
[1989] 12
Webb v. Investacorp, Inc.,
89 F.3d 252, 258
[5th Cir. 1996] 10-12
Whitehurst v. James Noel Flying Services,
509 So.2d 1035
[La. App. 3 Cir. 1987] 17



Statutory Law Page[s]
Louisiana Const. Art. 5, sec. 10 3
La. C.C. art. 1906 11
La. C.C. art. 1918 11
La. C.C. art. 1927 11
La. C.C. art. 1966 11
La. C.C. art. 1971 11
La. C.C. art. 3099 12
La. C.C. art. 3105[B] 12
La. C.C.P. art. 681 18
La. C.C.P. art. 2201 3
La. R.S. 9:3511 3,15-17
La. R.S. 9:4201, et seq. 14,16
La. R.S. 9:4210 9,20
La. R.S. 9:4210[A] 20
La. R.S. 9:4210[D] 20
La. R.S. 9:4211 7
La. R.S. 9:4213 7
La. R.S. 51:1418 4,15-17
9 U.S.C. §4, FAA 13
9 U.S.C. §10, FAA 20
Regulation B, 12 C.F.R. 202.1, et. seq. [ECOA] 18-19
Regulation Z, 12 C.F.R. 226.1, et. seq. 18-19













STATEMENT OF THE GROUNDS ON WHICH
THE JURISDICTION OF THIS COURT IS INVOKED

On June 1, 2007, Defendant-Appellant was named by Appellee in a Petition to Confirm an Arbitration Award for damages arising from a credit card account. Tr.T. p.4. On June 18, 2007, Appellant filed a verified Answer denying the allegations of the petition. Tr.T. pp.6-13. In an affidavit signed after being administered an oath and in the presence of a Notary who also signed as an officer, Appellant swore, inter alia, that he “never entered into any agreement to arbitrate disputes with plaintiff.” Tr.T. p.12 In that same affidavit, which was filed into the suit record with the Answer, Appellant testified that he “objected to plaintiff’s arbitration claim at the National Arbitration Forum.” Id. Repeatedly Appellant testified that he never agreed to arbitrate with plaintiff at all, never waived his rights, and did not agree to arbitrate in Minnesota, where National Arbitration Forum purported to hold an arbitration on behalf of Appellee and in which National Arbitration Forum claimed to enter an Award adverse to Appellant. Appellant likewise challenged Appellee’s right to collect any sums from him, Appellee’s standing to sue Appellant, Appellee’s compliance with arbitral restrictions by law, and Appellant raised contractual and tort defenses to the claims. Tr.T. pp.7-12. On June 29, 2007, Appellant served written discovery devices to Appellee. Tr.T. pp.14-34. Reciprocally, Appellee served Appellant with discovery, which Appellant again responded to by asserting that he never agreed to arbitrate. Tr.T. pp.35-36.
On August 13, 2007, Appellee filed a “Motion and Memorandum to Confirm Arbitration Award and to Compel Discovery.” Tr.T. pp.37-56. Appellee’s motion and memo portray Appellee’s belief that confirmation of an arbitral Award from its symbiotic partner National Arbitration Forum is merely a matter of being rubber-stamped by the court regardless of Appellant’s repeated assertion that he never agreed to arbitrate.
Though addressed in greater detail herein, the lower court set Appellee’s motion for oral argument. Tr.T. p.38. On October 24, 2007, oral argument was had on Appellee’s motion. Tr.T. pp.124-134. The lower court refused to allow Appellant to introduce any evidence or testimony to show that Appellant had not agreed to arbitrate with Appellee and Appellee was not entitled to confirm an arbitration Award where the arbitral forum lacked the power to render such an Award. Tr.T. pp.129,133-134.
The lower court was aware that when the Mann Bracken first notified Appellant of its intent to hold an arbitration in Minnesota, Appellant objected and advised Mann Bracken, Appellee, and National Arbitration Forum that he never agreed to arbitrate with Appellee. Def. EXH. 1-2; Tr.T. pp.138-142; Proffer, Sworn Statement of Leggio, 1/3/08, pp.6-9. Nonetheless, ignoring this matter, on March 28, 2007, National Arbitration Forum recited in its “Award” to Appellee that National Arbitration Forum decided its own jurisdiction and decided that an arbitration agreement did exist. Tr.T. pp.82-83. Contrary to reality, National Arbitration Forum suggested in the same Award that “No party has asserted that this Arbitration Agreement is invalid or unenforceable.” Id.
On October 24, 2007, the lower court entered Judgment in favor of Appellee and against Appellant, in the sum of $8,632.29, with judicial interest thereon and costs. Tr.T. p.93. On October 31, 2007, Appellant filed a Motion For New Trial. Tr.T. p.95-100. Trial on the motion was set for December 6, 2007, but then continued to December 19. Tr.T. pp.97,105. On December 19, 2007, the lower court again refused to allow Appellant the opportunity to offer and introduce any evidence, although Appellant was now appearing with counsel, attorney David Lefeve. Tr.T. pp.102-103,138-158. The lower court entered judgment stating that it dismissed the motion for new trial. Tr.T. p.106. A Notice of Appeal was timely filed on December 28, 2007. Tr.T. pp.108-109. On January 9, 2008, new counsel for Appellant filed a Motion and Order to Accept and File Proffer of Evidence. Tr.T. pp.112-113. That motion was granted. Id. Appellee filed a Motion to Strike the Motion and Order to Accept and File Proffer of Evidence. Tr.T. pp.114-115,119-120. The Motion to Strike was opposed by Appellant and the lower court properly denied Appellee’s Motion to Strike and permitted the proffer. Tr.T. pp.113,116-118.
This is a devolutive appeal by defendant from the lower court’s rulings confirming the arbitration award, entry of Judgment based on the award, and the denial of the motion for new trial. Supervisory jurisdiction of this Honorable Court is found in La. C.C.P. art. 2201 and LSA-Const. Art. 5, sec. 10.
Appellant requests that this Honorable Court reverse the Trial Judge's decision and judgment, vacate the arbitration award, dismiss the petition to confirm arbitration award, and remand this case for further proceedings consistent with your ruling. The Trial Court's decision in rendering judgment was erroneous and contrary to the law and uncontested evidence proffered by Appellant. Permitting Appellee’s Judgment to stand would be a grave injustice to Appellant under the evidence presented.
The lower court committed a manifest abuse in denying Appellant’s motion for a new trial and under the facts and evidence a miscarriage of justice will result unless reversed. Crump v. Bank One Corp., 817 So.2d 1187 [La. App. 2 Cir. 2002].
SPECIFICATIONS OF ERROR
1. The trial court erred in finding that it had no choice but to confirm the arbitration award.
2. The trial court erred in finding that the arbitral forum could decide its own jurisdiction and whether Appellant agreed to arbitrate over Appellant’s objection that he never agreed to arbitrate.
3. The trial court erred in refusing to review the evidence to determine if there was a written and signed agreement to arbitrate in evidence.
4. The trial court erred in refusing to apply La. R.S. 9:3511 and La. R.S. 51:1418, which protects Louisiana citizens from foreign venues and jurisdictions in consumer credit contracts.
5. The trial court erred in finding that Appellee had standing and a right to pursue collection of the subject account.
6. The trial court erred in refusing to vacate the arbitration award and in denying defendant’s-appellant’s motion for new trial.
ISSUES PRESENTED FOR REVIEW
1. Has Appellant shown that the trial court erred in finding that it had no alternative but to confirm the arbitration award?
2. Has Appellant shown that the trial court erred in finding that the arbitral forum could decide its own jurisdiction?
3. Has Appellant shown that the trial court erred in allowing the arbitral forum to ignore Appellant’s notice and proof that he never agreed to arbitrate?
4. Has Appellant shown that the trial court erred in refusing to review the evidence to determine if there was a written and signed agreement to arbitrate in evidence?
5. Has Appellant shown that the trial court erred in refusing to apply La. R.S. 9:3511 and finding that the alleged specimen contract offered by Appellee violated Louisiana law and was unenforceable [regardless that Appellant never signed or agreed to it]?
6. Has Appellant shown that the trial court erred in finding that Appellee had standing?
7. Has Appellant shown that the trial court erred in finding that Appellee had a right to pursue collection of the subject account?
8. Has Appellant shown that the trial court erred in refusing to vacate the arbitration award?
9. Has Appellant shown that the trial court erred in denying defendant’s-Appellant’s motion for new trial?
STATEMENT OF THE CASE
At all pertinent times, Appellant has been and is a Shreveport, Louisiana domiciliary. Proffer, Sworn Statement of Leggio, 1/3/08, p.3; Tr.T. pp.11,13. In June, 2005, Appellant sought and received revolving credit from Bank One, NA. Tr.T. p.143. The Bank One, NA, account went into default. Proffer, Sworn Statement of Leggio, 1/3/08, p.3. Subsequently Appellee, through a debt collection law firm called “Mann Bracken” from Georgia, claimed a right to collect on the Bank One, NA, account and demanded arbitration. Proffer, Sworn Statement of Leggio, 1/3/08, p.4. Appellant demanded proof of a written agreement to arbitrate between Appellant and Appellee. Proffer, Sworn Statement of Leggio, 1/3/08, p.4. Appellee refused to provide any such proof. Proffer, Sworn Statement of Leggio, 1/3/08, pp.4-5. Appellee provided a generic consumer credit contract [Chase Bank USA, NA] specimen document but not any document that Appellant agreed to and no document signed by Appellant. Proffer, Sworn Statement of Leggio, 1/3/08, p.5. Indeed, Appellant never signed any written document agreeing to arbitrate with Appellee or Bank One, NA. Proffer, Sworn Statement of Leggio, 1/3/08, p.5.
On February 15, 2007, immediately after being notified of Mann Bracken’s intent to foist an arbitration upon Appellant, Appellant wrote Mann Bracken and Appellee and advised both that Appellant never agreed to arbitrate. Proffers 1-3, introduced; Proffer, Sworn Statement of Leggio, 1/3/08, pp.3-9. Appellee, Mann Bracken and National Arbitration Forum [NAF] proceeded with an arbitration in the State of Minnesota despite the written objection. Proffer, Sworn Statement of Leggio, 1/3/08, pp.5-6. Appellant only received a purported Award from NAF at some point in time. Proffer, Sworn Statement of Leggio, 1/3/08, pp.6-7; Tr.T. pp.83-84.
On June 1, 2007, Appellee named Defendant-Appellant in a Petition to Confirm an Arbitration Award for damages allegedly arising from the Bank One, NA, credit card account. Tr.T. p.4; Proffer, Sworn Statement of Leggio, 1/3/08, p.7. On June 18, 2007, Appellant filed a verified Answer denying the allegations of the petition and thereafter also filed denials to the requests to admit information from Appellee. Tr.T. pp.6-13,35-36. In an affidavit signed after being administered an oath and in the presence of a Notary who also signed as an officer, Appellant swore, inter alia, that he “never entered into any agreement to arbitrate disputes with plaintiff.” Tr.T. p.12; Proffer, Sworn Statement of Leggio, 1/3/08, p.7. In that same affidavit, which was filed into the suit record with the Answer, Appellant testified that he “objected to plaintiff’s arbitration claim at the National Arbitration Forum.” Id. Repeatedly, at both hearings held by the lower court, as discussed further below, Appellant stated and testified that he never agreed to arbitrate with plaintiff at all, never waived his rights, and did not agree to arbitrate in Minnesota, where National Arbitration Forum purported to hold an arbitration on behalf of Appellee and in which National Arbitration Forum claimed to enter an Award adverse to Appellant. Appellant likewise challenged Appellee’s right to collect any sums from him, Appellee’s standing to sue Appellant, Appellee’s compliance with arbitral restrictions by law, and Appellant raised contractual and tort defenses to the claims. Tr.T. pp.7-12. On June 29, 2007, Appellant served written discovery devices to Appellee. Tr.T. 14-34. Reciprocally, Appellee served Appellant with discovery, which Appellant again responded to by asserting that he never agreed to arbitrate. Tr.T. pp.35-36.
There is a cozy and symbiotic relationship between other collectors/creditors [like CACV of Colorado, LLC, a debt collector] and National Arbitration Forum [NAF] which belies the same type of fraud perpetrated upon Appellant here. Multiple reported decisions show that CACV has attempted repeatedly to confirm inappropriate “awards” of NAF across the country and courts have rejected those efforts. CACV of Colorado, LLC v. Corda, Not Reported in A.2d, 2005 WestLaw 3664087 [Conn. Super. 2005]; CACV of Colorado, LLC v. Acevedo, Not Reported in A.2d, 2005 WestLaw 2981673 [Conn. Super. 2005]; CACV of Colorado, LLC v. McNeil, Not Reported in A.2d, 2005 WestLaw 2981676 [Conn. Super. 2005]; CACV of Colorado, LLC v. Werner, Not Reported in A.2d, 2005 WestLaw 2981677 [Conn. Super. 2005]; CACV of Colorado, LLC v. Cassidy, Not Reported in A.2d, 2005 WestLaw 2981680 [Conn. Super. 2005]. The court in Toppings v. Meritech Mortg. Services, Inc., 140 F.Supp.2d 683 [U.S.D.C. S.D. W.Va. 2001], went so far and to deny the motion to compel arbitration before NAF, after taking evidence, and permitted plaintiff to conduct discovery into the bias of NAF. On September 21, 2001, the court dismissed, upon plaintiff’s motion, the duplicative federal action and noted that the state court, in the parallel action, had determined NAF was a biased and improper forum. DOCKET #69, #: 2:00-cv-01055 [U.S.D.C. S.D. W.Va. 9/21/01].
It is further noteworthy that the purported award arose from NAF’s alleged proceeding in the State of Minnesota, not in this Parish or State. La. R.S. 9:4211. In this case, the “award” was delivered and filed by Appellee in this proceeding. La. R.S. 9:4213.
ACTION OF THE TRIAL COURT
On August 13, 2007, Appellee filed a “Motion and Memorandum to Confirm Arbitration Award and to Compel Discovery.” Tr.T. pp.37-56. Appellee’s motion and memo portray Appellee’s belief that confirmation of an arbitral Award from its symbiotic partner National Arbitration Forum is merely a matter of being rubber-stamped by the court regardless of Appellant’s repeated assertion that he never agreed to arbitrate.
Though addressed in greater detail herein, the lower court set Appellee’s motion for oral argument. Tr.T. p.38. On October 24, 2007, oral argument was had on Appellee’s motion. Tr.T. pp.124-134. The lower court refused to allow Appellant to introduce any evidence or testimony to show that Appellant had not agreed to arbitrate with Appellee and Appellee was not entitled to confirm an arbitration Award where the arbitral forum lacked the power to render such an Award. Tr.T. pp.129,133-134.
The lower court was aware that when Mann Bracken first notified Appellant of its intent to hold an arbitration in the State of Minnesota, Appellant objected and advised Mann Bracken, Appellee, and National Arbitration Forum that he never agreed to arbitrate with Appellee. Def. EXH. 1-2; Tr.T. pp.138-142. Nonetheless, ignoring this matter, on March 28, 2007, National Arbitration Forum recited in its “Award” to Appellee that National Arbitration Forum decided its own jurisdiction and decided that an arbitration agreement did exist. Tr.T. pp.82-83. Contrary to reality, National Arbitration Forum suggested in the same Award that “No party has asserted that this Arbitration Agreement is invalid or unenforceable.” Id.
On October 24, 2007, the lower court entered Judgment in favor of Appellee and against Appellant, in the sum of $8,632.29, with judicial interest thereon and costs. Tr.T. p.93. On October 31, 2007, Appellant filed a Motion For New Trial. Tr.T. p.95-100. Trial on the motion was set for December 6, 2007, but then continued to December 19. Tr.T. pp.97,105. On December 19, 2007, the lower court again refused to allow Appellant the opportunity to offer and introduce any evidence, although Appellant was now appearing with counsel, attorney David Lefeve. Tr.T. pp.102-103,138-158. The lower court entered judgment stating that it dismissed the motion for new trial. Tr.T. p.106; Proffer, Sworn Statement of Leggio, 1/3/08, p.8. A Notice of Appeal was timely filed on December 28, 2007. Tr.T. pp.108-109. On January 9, 2008, new counsel for Appellant filed a Motion and Order to Accept and File Proffer of Evidence. Tr.T. pp.112-113. That motion was granted. Id. Appellee filed a Motion to Strike the Motion and Order to Accept and File Proffer of Evidence. Tr.T. pp.114-115,119-120. The Motion to Strike was opposed by Appellant and the lower court properly denied Appellee’s Motion to Strike and permitted the proffer. Tr.T. 113,116-118.
ARGUMENT
1. The trial court erred in finding that it had no choice but to confirm the arbitration award.
Not just once but a number of times, Judge Rabb stated that he had no choice but to confirm the arbitral award. Tr.T. pp.129 [Judge Rabb: “But all I’m just here is to to confirm the arbitration award”]; 149 [“...limited in what I can do.”]; 150 [“All I can do is confirm the arbitration you know like it the arbitration award that’s what I’m limited to do”]. A review of his repeated comments showed that Judge Rabb erroneously believed that the court is a mere “rubber stamp” for any “award” and petition to confirm filed by a party. Judge Rabb also repeatedly suggested that Appellant appeal to this Honorable Court as Judge Rabb believed that his only decision had to be to confirm. Tr.T. pp.128-129,131,133-134,149. Despite Appellant’s repeatedly testimony that he never agreed to arbitrate, which was not contradicted by any competent evidence, Judge Rabb chose to simply punt to the court of appeal. Tr.T. pp.126-129,133,139-140,143,146-147. At one point, Judge Rabb suggested that Appellant remove the case to federal court. Tr.T. p.134.
Louisiana and federal law provide that an arbitration award shall be vacated in certain circumstances. Marsh Farms v. Olvey, 974 So.2d 194 [La. App. 2 Cir. 2008] [Louisiana Arbitration Act and FAA are “virtually identical”]. Under Louisiana law, “An arbitration award shall be vacated when it was procured by corruption, fraud, or undue means; or where there was evident partiality or corruption on the part of the arbitrator; or where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. La. R.S. 9:4210.” LaCour's Drapery Co., Inc. v. Brunt Const., Inc., 939 So.2d 424, 2006 WestLaw 1751899 [La. App. 1 Cir. 6-28-06].
Courts are not “limited” in their abilities and power to determine if both parties agreed to arbitrate or decide if the arbitration process and award are a mere sham or lacking in meeting standards of fairness and due process. Beckman v. H&R Block Financial Advisors, Inc., Slip Copy, 2007 WestLaw 1288011 [U.S.D.C. Minn. 2007] [“Arbitration awards, however, are not inviolate, and the court need not merely rubber stamp the arbitrators' interpretations and decisions.” Citing Stark, 381 F.3d at 798.]; Michigan Family Resources, Inc. v. Service Employees, 475 F.3d 746 [6th Cir. 2007] [Mich.]; Brentwood Medical Associates v. United Mine Workers of America, 396 F.3d 237, 242 [3d Cir. 2005]; Carty v. Nationwide Ins Co, 149 A.D.2d 328 [1st Dept 1989]; Davis Alarms, Inc. v. Aftar, 15 Misc.3d 1142[A], 841 N.Y.S.2d 819, 2007 WestLaw 1558866 [N.Y. City Civ. Ct. 2007].
This Honorable Court has recognized the unusual nature of arbitrations in connection with consumer credit contracts and, particularly, those in the creditor/collector-consumer arena. This Honorable Court, in Judge Brown’s concurring opinion, in FIA Card Services, N.A. v. Gibson, --- So.2d ----, 2008 WestLaw 725415 [FN 1] [La. App. 2 Cir. 2008], noted that “...the appellate court's function is to determine whether the arbitration proceedings have been fundamentally fair. Montelepre v. Waring Architects, 2000-0671 [La. App. 4th Cir. 5/16/01], 787 So.2d 1127.” It is also the function of the trial court.
2. The trial court erred in finding that the arbitral forum could decide its own jurisdiction and whether Appellant agreed to arbitrate over Appellant’s objection that he never agreed to arbitrate.
Judge Rabb erroneously suggested that the arbitral forum had the right to decide its own jurisdiction. Tr.T. p.150. It does not. The court’s authority and duty to determine if the parties agreed to argue is not displaced into a mere rubber-stamping conduit. Supra.
“[Q]uestions regarding the existence of an arbitration agreement are generally for the court to decide.” Sphere Drake Insurance Ltd. v. All American Insurance Co., 256 F.3d 587, 591 [7th Cir. 2001]; Matterhorn, 763 F.2d at 868; Viets v. Andersen, 2003 WestLaw 21525062 *7 [S.D. Ind. June 26, 2003]; Lee v. Deloitte & Touche, LLP, 2002 WestLaw 31433421 *2 [N.D. Ill. Oct.31, 2002]. This includes the question of whether one of the parties actually entered into the contract being offered as containing an arbitration clause. Sphere Drake, 256 F.3d at 590-91; Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 854-56 [11th Cir. 1992]; Carbajal v. Household Bank, FSB, 2003 WestLaw 22159473 *6 n.6 [N.D. Ill. 2003].
The first step is to determine whether the parties agreed to arbitrate the dispute. Webb v. Investacorp, Inc., 89 F.3d 252, 258 [5th Cir.1996]; Greene v. Chase Manhattan Automotive Finance Corp., Not Reported in F.Supp.2d, 2003 WestLaw 22872102 [U.S.D.C. E.D. La. 2003]. In this analysis, the Court must determine "whether there is a valid agreement to arbitrate between the parties" and "whether the dispute in question falls within the scope of that arbitration agreement." Id. [citing Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 [1985]]. To determine whether the parties agreed to arbitrate the dispute, "courts generally ... should apply ordinary state-law principles that govern the formation of contracts." Id. [citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 [1995]]. Depending on the language of the arbitration provision, there may be an additional threshold inquiry before the Court would reach the issue of whether the particular controversy falls within the scope of the arbitration agreement.
The threshold inquiry is whether there exists a valid agreement to arbitrate. Webb, 89 F.3d, at 258. Under Louisiana law, a contract is an agreement by two or more parties in which obligations are created, modified, or extinguished. La. C.C. art. 1906. The Louisiana Civil Code requires four elements for the confection of a valid contract: [1] the parties must possess the capacity to contract; [2] the parties must freely give their mutual consent; [3] there must be a certain and lawful object for the contract; and [4] there must be lawful cause. La. C.C. arts. 1918, 1927, 1971, 1966; Greene v. Chase Manhattan Automotive Finance Corp., Not Reported in F.Supp.2d, 2003 WestLaw 22872102 [U.S.D.C. E.D. La. 2003].
In Maranto v. Citifinancial Retail Servs., 2005 WestLaw 3369948, 2005 U.S.Dist.LEXIS 31352 *4 [U.S.D.C. W.D. La. 2005], plaintiff faced a motion to compel arbitration. Plaintiff testified that he did not agree to arbitrate with the defendant. An ID theft defrauder had created the credit account through application fraud. The court, in rejecting the arbitration demand, held that “Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. In determining whether the parties have agreed to arbitrate the dispute in question, the court must consider:[1] whether a valid agreement to arbitrate between the parties exists; and [2] whether the dispute in question falls within the scope of that arbitration agreement. Always present in the analysis is the strong federal policy favoring arbitration which requires resolution of any ambiguity in favor of arbitration. Painewebber Incorporated v. The Chase Manhattan Private Bank, 260 F.3d 453, 462 [5th Cir. 2001].”
In resolving these "gateway issues," the court is to apply ordinary state common law governing the formation of contracts. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 [1989]; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 n. 9, 115 S.Ct. 1212, 1219 n. 9, 131 L.Ed.2d 76 [1995].
In CACV of Colorado v. Janice Robinson, No. 505,474-C, 1st Judicial District Court, Caddo Parish, Louisiana, Judge Scott considered and refused a request by National Arbitration Forum to enforce an alleged arbitral award against a consumer who had not consented to arbitration. Further, the debt at issue was prescribed. Defendant showed that the NAF arbitration award could not be enforced or upheld upon a showing that it was procured by corruption, fraud or undue means. Defendant further showed that she had not agreed to submit any dispute to arbitration with NAF or the lender in connection with the alleged account. La. C.C. art. 3099. Absent lawful and proper submission and lawful arbitration proceeding, prescription is not interrupted by the filing of an
arbitration. La. C.C. art. 3105[B] [requires agreement to arbitrate and lawful proceeding]. Judge Scott refused to enforce the arbitration award and vacated it and found the alleged debt to be prescribed
In another analogous case, Discover Financial Services filed a motion to compel arbitration against an identity theft victim, James Riley, in consolidated actions captioned James Riley v. GMAC, cause no. 1:01-CV-00869-WS-D [U.S.D.C. S.D. Ala. 12/16/02]. On December 16, 2002, docket entry #106, now Chief Judge Granade entered an unreported Order denying Discover’s Motion to Compel Arbitration, and Motion to Stay Discovery. Judge Granade found that the victim did not consent to any such arbitration clause and arbitration cannot be enforced absent an agreement to arbitrate. Also see: Diana Poulson v. Trans Union LLC, 406 F.Supp.2d 744 [U.S.D.C. E.D. Tex. 2005]; Barker v. Trans Union LLC, Not Reported in F.Supp.2d, 2004 WestLaw 783357 [U.S.D.C. N.D. Ill. 2004]; Lawrence v. Household Bank [SB], N.A., 343 F.Supp.2d 1101 [U.S.D.C. M.D. Ala. 2004] [“There is an exception to the Prima Paint rule, however, for ‘cases where not merely the enforceability, but the initial formation or existence of a contract, including a disputed arbitration clause, is legitimately called into question, and must be decided by the court.’ Rainbow Investments, Inc. v. Super 8 Motels, Inc., 973 F.Supp. 1387, 1390 [M.D. Ala. 1997] [Thompson, C.J.].”].
In Boran v. Columbia Credit Services, Inc., Slip Copy, 2006 WestLaw 3388400 [U.S.D.C. Conn. 2006], the court faced a similar situation, where the consumer denied having agreed to arbitrate claims. Columbia Credit Services also used the industry-friendly National Arbitration Forum, in an effort to foist arbitration. The court held that “In the event that the making of the arbitration agreement is in issue, “the court shall proceed summarily to the trial” of that issue. Id. §4; See Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co., 263 F.3d 26, 30 [2d Cir.2001][“[i]f the making of the agreement to arbitrate is placed in issue ... the court must set the issue for trial.”] In addition, if the making of the arbitration agreement has been placed at issue, “the party alleged to be in default may ... demand a jury trial of such issue.” 9 U.S.C. §4. “[U]pon such a demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure ... or may specifically call a jury for that purpose...Before a trial on arbitrability is warranted, however, “the party putting the agreement to arbitrate in issue must present ‘some evidence’ in support of its claim.” 9 U.S.C. §4. See Interocean Shiping Co. v. Nat'l Shipping & Trading Corp., 462 F.2d 673, 676 [2d Cir.1972]; Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625, 628 [2d Cir.1945].” The Boran court made clear that “Thus, ‘[i]f there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary. Bensadoun, 316 F.3d at 175. “Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.’ Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 [3d Cir. 1980].”
There was absolutely no evidence that Appellant agreed to arbitrate claims with Appellee. Appellant properly objected to the arbitral process. Appellee was bound to seek an order compelling, which it refused to do. NAF was bound not to proceed either but NAF did so.
3. The trial court erred in refusing to review the evidence to determine if there was a written and signed agreement to arbitrate in evidence.
This Honorable Court in FIA Card Services, N.A. v. Gibson, --- So.2d ----, 2008 WestLaw 725415 [La. App. 2 Cir. 2008], recently stated: “Arbitration is a process of dispute resolution in which a neutral third party [arbitrator] renders a decision after a hearing at which both parties have an opportunity to be heard. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Conagra Poultry Company v. Collingsworth, 30,155 [La. App. 2d Cir. 1/21/98], 705 So.2d 1280....Arbitration in this state is governed by the Louisiana Arbitration Act found in La. R.S. 9:4201 et seq. La. R.S. 9:4201 provides: 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 thereof, or an agreement in writing between two 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, save upon such grounds as exist at law or in equity for the revocation of any contract. [emphasis added].” The requirement of a written contract, signed by the parties, proving the agreement to arbitrate is central to a binding right of either party to enforce a clause that has an effect of taking away a party’s rights to be heard by an individual elected or appointed who is educated in law. For reasons so clear, the credit and collection/debt buyers industry members have placed NAF’s name in form credit card agreements and other mailers claiming to be change in terms, all in an effort to lock the courthouse doors. Here there is no express or even implied agreement to arbitrate.
4. The trial court erred in refusing to apply La. R.S. 9:3511 and La. R.S. 51:1418, which protect Louisiana citizens from foreign venues and jurisdictions in consumer credit contracts.
Plaintiff has not waived the application of Louisiana law. The Chase Bank USA specimen document is not a document binding upon Appellant. Tr. T. pp.85-88. Appellant never agreed to accept and be bound by Chase’s document. Appellee presented that document as the alleged account holder agreement although Appellee knew it was not. After objection by Appellant, Appellee filed pleadings and briefs with the court citing bizarre reasons for why Appellee could not present any assignment [purportedly from Chase Bank, NA to Appellee], or the only credit application from Appellant to Bank One, NA [also constituting an account holder agreement after Bank One, NA created the account], or any other documentation between Bank One, NA and Appellant. Infra.
In Louisiana, Appellant is protected by La. R.S. 9:3511 which states: “A. Subject to the provisions of R.S. 9:3511[B], the parties to a consumer credit transaction may agree that the law of the place wherein the consumer credit transaction was entered into or the law of the residence of the buyer or debtor shall apply. For the purposes of this Chapter the residence of a buyer or debtor is the address given by him as his residence in any writing signed by him in connection with a consumer credit transaction. Until he notifies the creditor of a new or different address, the given address is presumed to be unchanged....
C. Except as otherwise provided herein, the following agreements by a consumer are invalid with respect to consumer credit transactions, or modifications thereof, to which this chapter applies: [1] by which the consumer consents to the jurisdiction of another state; and [2] that fix venue....[emphasis added.].”
Further shedding light on this statute is La. R.S. 51:1418. It provides: “A. A consumer transaction or modification of a consumer transaction is made in this state when: [1] a writing signed by the consumer and evidencing the obligation is received by the merchant in this state, or when [2] the merchant negotiates in this state personally or by mail, telephone or otherwise, for a transaction with a consumer consummated outside the state.
B. Notwithstanding any other provision of law to the contrary, this Act applies if the consumer is a resident of this state at the time of the consumer transaction and either of the conditions specified in Subsection A of this section are present.
C. The following terms of a writing executed by a consumer are invalid with respect to consumer transactions or modifications thereof: [1] that the law of another state will apply; [2] that the consumer consents to the jurisdiction of another state; or [3] any term that fixes venue. [emphasis added.].”
In Posadas v. The Pool Depot, Inc., 858 So.2d 611 [La. App. 1 Cir. 2003], w.d., 857 So.2d 502, 2003-2125 [La. 2003], abrogated only as to its adhesionary clause analysis in Aguillard v. Auction Management Corp., 908 So.2d 1 [La. 6/29/05], the concurring opinion, noted that a consumer contract purporting to require an arbitration in Texas was invalid and illegal under La. R.S. 51:1418, as it sought to fix venue. The concurring Judge also recited that “...the Louisiana Binding Arbitration Law, LSA-R.S. 9:4201, et seq., does not supercede the Louisiana Unfair Trade Practice and Consumer Protection Law.” If it is illegal for a contract to provide that the consumer consents to jurisdiction in the courts of another state, it certainly is illegal to make the consumer consent to jurisdiction before a non-judicial tribunal unaffiliated with any state.
Appellant respectfully shows that Louisiana law prohibits the fixing of venues in foreign states in consumer credit contracts. La. R.S. 9:3511 and La. R.S. 51:1418 have been largely ignored in handling the abuses of arbitration and efforts to fix the forum, venue and law to a distant place from Louisiana although the consumer is a Louisiana domiciliary. The Aguillard decision attacked the Posadas, supra, decision and Simpson v. Grimes, 849 So.2d 740 02-869 [La. App. 3 Cir. 2003], w.d., 861 So.2d 567 [La. 2003], only with respect to findings that the adhesionary nature of the arbitration clauses would not be enforced. Aguillard did not address the First and Third Circuits’ proper application of La. R.S. 9:3511 and La. R.S. 51:1418. The Whitehurst v. James Noel Flying Services, 509 So.2d 1035 [La. App. 3 Cir. 1987], decision permitted application of another states’ law in a consumer credit contract but specifically noted that the case did not involve a jurisdiction issue. In Whitehurst, fixing venue was not an issue. In Vigil v. Sears Nat. Bank, 205 F.Supp.2d 566 [U.S.D.C. E.D. La. 2002], the court found that Arizona law [choice of law] applied to a consumer credit contract and found that the “agreement is entered into in Arizona.” Thus, the federal court allowed Arizona aw to be applied and allowed venue fixing outside of Louisiana. The Vigil decision has received some criticism by other courts. To date, counsel can find no decision varying from the Posadas, supra, decision and Simpson, supra, decision which gave proper interpretation and application of La. R.S. 9:3511 and La. R.S. 51:1418.
5. The trial court erred in finding that Appellee had standing and a right to pursue collection of the subject account.
This action and the claims and defenses pre-dated this Honorable Court’s decision in FIA Card Services, N.A. v. Gibson, --- So.2d ----, 2008 WestLaw 725415 [La. App. 2 Cir. 2008], however it is uncanny that similar issues exist in each case. In FIA Card Services, N.A. v. Gibson, this court held that “Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681; Downs v. Hammett Properties, Inc., 39,568 [La. App. 2d Cir. 4/6/05], 899 So.2d 792.” Though Appellant, while pro se, did properly state as a defense that Appellee lacked a right of action and standing to file this petition, an exception of no right of action was not separately filed. Tr.T. 6. Though Appellant did not file a peremptory exception, in this case, like in FIA Card Services, Appellee here filed no competent proof of any assignment by Bank One, NA, to Chase-Appellee. There is no assignment or third party beneficiary contract [stipulation] at all. That proof is required. Coastal Credit Co. v. American Waste and Pollution Control Co., 583 So.2d 553 [La. App. 3 Cir. 1991].
It should be noted that the purported arbitration agreement [specimen] filed into the record by Appellee is a “Chase Bank USA, NA” specimen document, not even a Bank One specimen. Tr.T. p.85. Again, Appellee has no document signed by Appellant containing an arbitration clause.
Here, there is no valid assignment in the record. Coastal Credit Co. v. American Waste and Pollution Control Co., 583 So.2d 553 [La. App. 3 Cir. 1991]. How could NAF have even considered a claim by one entity to an account opened and used with a second entity, without any proof whatsoever of an assignment of rights or stipulation pour autri? Strange indeed. Appellant demanded documentation of the assignment. Appellee has suggested that “the creditor’s obligation to retain the records, information and documents...is narrow and well defined.” Tr.T. p.42. In response to Appellant’s discovery, Appellee again claimed it had no such documentation as such documentation was allegedly destroyed after 25 months. Tr.T. p.57. This entire argument and line of defense to Appellant’s request for information are ridiculous. Regulation Z and Regulation B require record retention on credit applications and adverse action results/denials for a two year period, in order to protect the lender in the event a consumer files a consumer law claim arising from such failed application, etc. These regulations do not command a lender to destroy records after two years. The suggestion that the original Bank One, NA, application and account documentation do not exist due to Reg. Z and Reg. B is a specious argument. To suggest that an alleged account assignment was destroyed is equally silly.
In an exception of no right of action, Appellant would have had the burden. Richland Parish Police Jury v. Debnam, 968 So.2d 294 [La. App. 2 Cir. 10/17/07]. However, the matter came before the trial court in connection with Appellee’s Petition to Confirm. Appellee still had the obligation to prove its own standing to pursue the claims, particularly in light of Appellant’s objection and pleading. Coastal Credit Co. v. American Waste and Pollution Control Co., 583 So.2d 553 [La. App. 3 Cir. 1991]; D.H. Holmes Co., Ltd. v. Dronet, 432 So.2d 1135 [La. App. 3 Cir. 1983]. Louisiana law is clear that Appellee bore the burden of proving its right and standing to pursue collection. Appellee has failed to meet that burden. Appellant did raise the matter in formal, written and filed pleadings.
6. The trial court erred in refusing to vacate the arbitration award and in denying defendant’s-Appellant’s motion for new trial.
Appellee’s argument that Appellant failed to timely move to vacate its arbitration award presupposed at least several things: [1] a valid arbitration agreement; [2] proper notice and opportunity to be heard; [3] fundamental fairness of the process; [4] an award by a tribunal having power to render an award; and [5] an award that could be sustained despite review by the trial court and court of appeal. Absent an agreement to arbitrate, Appellant is free to object at any time. This is akin to a judgment rendered by a court lacking personal jurisdiction. Just because a judgment is rendered does not make it valid nor does it impose duties on the named defendant to act until there is an effort to enforce that judgment in defendant’s home state and against his/her/its assets.
Under La. R.S. 9:4210, Judge Rabb was bound to vacate the award upon the uncontroverted proof that the “award” was “procured by corruption, fraud, or undue means.” La. R.S. 9:4210[A]. Further, the “arbitrators exceeded their powers...that a mutual, final, and definite award upon the subject matter submitted was not made.” La. R.S. 9:4210[D]; 9 U.S.C. §10; Collins v. Prudential Ins. Co. of America, 752 So.2d 825 [La. 2000]; Schaffer & Assoc., Inc. v. Demech Contractors, Ltd., 101 F.3d 40, 43 [5th Cir. 1996].
CONCLUSION
Appellant respectfully requests that this Honorable Court reverse the Trial Judge's decision and judgment, vacate the arbitration award, dismiss the petition to confirm arbitration award, and remand this case for further proceedings consistent with your ruling. The Trial Court's decision in rendering judgment was erroneous and contrary to the law and uncontested evidence introduced and proffered by Appellant. Permitting Appellee’s Judgment to stand would be a grave injustice to Appellant under the evidence presented.
C E R T I F I C A T E

I hereby certify that a copy of the above and foregoing Original Brief was served upon Greg Eaton and Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ______ day of __________________, 2008.


____________________________________
OF COUNSEL
V E R I F I C A T I O N

STATE OF LOUISIANA
PARISH OF CADDO

BEFORE ME, THE UNDERSIGNED NOTARY, personally came and appeared David A. Szwak, attorney for Appellant-Defendant herein, who after being sworn, did depose and state: That a copy of the above and foregoing this Original Brief was served upon Greg Eaton and Brandon Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ____ day of ___________________, 2008. Further, that he has prepared and read this Original Brief and all statements made therein are true and correct to the best of his knowledge.


________________________________
David A. Szwak

SWORN TO AND SUBSCRIBED BEFORE ME THIS THE __ DAY OF ____________, 2008.


________________________________
NOTARY PUBLIC

Counsel:
Greg Eaton
Linda Lynch
P.O. Box 3001
Baton Rouge, Louisiana 70821-3001

and

Brandon Trey Morris
509 Milam St.
Shreveport, Louisiana 71101
Counsels for Appellee

and

Trial Judge:
Honorable David Rabb, Ad Hoc Trial Judge
Shreveport City Court
P.O. Box 37066
1230 Texas St.
Shreveport, Louisiana 71133-7066
Attachments
APPEAL.CHASE.BANK.USA.v.LEGGIO.4188.FINAL.4.21.08.pdf
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David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
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Chairman, Consumer Protection Section, Louisiana State Bar Association

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Re: LOUISIANA - APPEAL TO COURT OF APPEAL -DEFEATING ARB EFF

Postby Administrator » Thu Oct 09, 2014 5:25 am

REPLY BRIEF



COURT OF APPEAL, SECOND CIRCUIT

STATE OF LOUISIANA

DOCKET NO. 43,567-CA



CHASE BANK USA, N.A. APPELLEE



VERSUS



VINCENT L. LEGGIO APPELLANT


ON APPEAL FROM THE
SHREVEPORT CITY COURT IN
THE PARISH OF CADDO, STATE OF LOUISIANA
DOCKET NO. 2007R04188
HONORABLE DAVID RABB, AD HOC CITY COURT JUDGE




APPEAL BY DEFENDANT-APPELLANT,
VINCENT L. LEGGIO



REPLY BRIEF ON BEHALF OF
VINCENT L. LEGGIO
APPELLANT





Submitted by:

Bodenheimer, Jones & Szwak, LLC



By: ______________________________
David A. Szwak LBR# 21157
509 Market St., Ste. 730
Mid South Tower
Shreveport, Louisiana 71101
Telephone: [318] 424-1400
FAX: [318] 221-6555
ATTORNEYS FOR VINCENT L. LEGGIO, APPELLANT


THIS IS A CIVIL CASE TABLE OF CONTENTS
Page
__________________________________________________________________

ARGUMENT:

1. The trial court erred in finding that it had no
choice but to confirm the arbitration award........... 8

2. The trial court erred in finding that the arbitral
forum could decide its own jurisdiction and whether
Appellant agreed to arbitrate over Appellant’s
objection that he never agreed to arbitrate........... 10

3. The trial court erred in refusing to review the
evidence to determine if there was a written
and signed agreement to arbitrate in evidence......... 14

4. The trial court erred in refusing to apply La.
R.S. 9:3511 and La. R.S. 51:1418, which protect
Louisiana citizens from foreign venues and
jurisdictions in consumer credit contracts............ 15

5. The trial court erred in finding that Appellee
had standing and a right to pursue collection of
the subject account................................... 17

6. The trial court erred in refusing to vacate the
arbitration award and in denying
defendant’s-Appellant’s motion for new trial.......... 19

CERTIFICATE................................................ 21

VERIFICATION............................................... 22




















ii.
TABLE OF AUTHORITIES

Cases Page[s]
Aguillard v. Auction Management Corp.,
908 So.2d 1
[La. 6/29/05] 16-17
Almacenes Fernandez, S.A. v. Golodetz,
148 F.2d 625, 628
[2d Cir. 1945] 14
Barker v. Trans Union LLC,
Not Reported in F.Supp.2d, 2004 WestLaw 783357
[U.S.D.C. N.D. Ill. 2004] 13
Beckman v. H&R Block Financial Advisors, Inc.,
Slip Copy, 2007 WestLaw 1288011
[U.S.D.C. Minn. 2007] 9
Bensadoun,
316 F.3d at 175 14
Boran v. Columbia Credit Services, Inc.,
Slip Copy, 2006 WestLaw 3388400
[U.S.D.C. Conn. 2006] 13-14
Brentwood Medical Associates v. United Mine Workers of America,
396 F.3d 237, 242
[3d Cir. 2005] 9
CACV of Colorado, LLC v. Acevedo,
Not Reported in A.2d, 2005 WestLaw 2981673
[Conn. Super. 2005] 6
CACV of Colorado, LLC v. Cassidy,
Not Reported in A.2d, 2005 WestLaw 2981680
[Conn. Super. 2005] 6
CACV of Colorado, LLC v. Corda,
Not Reported in A.2d, 2005 WestLaw 3664087
[Conn. Super. 2005] 6
CACV of Colorado, LLC v. McNeil,
Not Reported in A.2d, 2005 WestLaw 2981676
[Conn. Super. 2005] 6
CACV of Colorado v. Janice Robinson,
No. 505,474-C, 1st Judicial District Court,
Caddo Parish, Louisiana [Judge Scott] 12
CACV of Colorado, LLC v. Werner,
Not Reported in A.2d, 2005 WestLaw 2981677
[Conn. Super. 2005] 6
Carbajal v. Household Bank, FSB,
2003 WestLaw 22159473 *6 n.6
[U.S.D.C. N.D. Ill. 2003] 10
Carty v. Nationwide Ins Co.,
149 A.D.2d 328
[N.Y. 1st Dept. 1989] 9
Chastain v. Robinson-Humphrey Co.,
957 F.2d 851, 854-56
[11th Cir. 1992] 10
Coastal Credit Co. v. American Waste and Pollution Control Co.,
583 So.2d 553
[La. App. 3 Cir. 1991] 18-19
Collins v. Prudential Ins. Co. of America,
752 So.2d 825
[La. 2000] 20
Conagra Poultry Company v. Collingsworth,
705 So.2D 1280
[La. App. 2 Cir. 1/21/98] 14
Crump v. Bank One Corp.,
817 So.2d 1187
[La. App. 2 Cir. 2002] 3
Davis Alarms, Inc. v. Aftar, 15 Misc.3d 1142[A],
841 N.Y.S.2d 819, 2007 WestLaw 1558866
[N.Y. City Civ. Ct. 2007] 9
D.H. Holmes Co., Ltd. v. Dronet,
432 So.2d 1135
[La. App. 3 Cir. 1983] 19
Downs v. Hammett Properties, Inc.,
899 So.2d 792
[La. App. 2d Cir. 4/6/05] 18
FIA Card Services, N.A. v. Gibson,
--- So.2d ----, 2008 WestLaw 725415
[La. App. 2 Cir. 2008] 10,14,
17-18
First Options of Chicago, Inc. v. Kaplan,
514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985
[1995] 11
Greene v. Chase Manhattan Automotive Finance Corp.,
Not Reported in F.Supp.2d, 2003 WestLaw 22872102
[U.S.D.C. E.D. La. 2003] 11
Interocean Shiping Co. v. Nat'l Shipping & Trading Corp.,
462 F.2d 673, 676
[2d Cir. 1972] 14
LaCour's Drapery Co., Inc. v. Brunt Const., Inc.,
939 So.2d 424, 2006 WestLaw 1751899
[La. App. 1 Cir. 6-28-06] 9
Lawrence v. Household Bank [SB], N.A.,
343 F.Supp.2d 1101
[U.S.D.C. M.D. Ala. 2004] 13
Lee v. Deloitte & Touche, LLP,
2002 WestLaw 31433421 *2
[U.S.D.C. N.D. Ill. Oct. 31, 2002] 10
Maranto v. Citifinancial Retail Servs.,
2005 WestLaw 3369948, 2005 U.S.Dist.LEXIS 31352 *4
[U.S.D.C. W.D. La. 2005] 11
Marsh Farms v. Olvey,
974 So.2d 194
[La. App. 2 Cir. 2008] 9
Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 63 n. 9, 115 S.Ct. 1212, 1219 n. 9,
131 L.Ed.2d 76
[1995] 12
Matterhorn,
763 F.2d at 868 10
Michigan Family Resources, Inc. v. Service Employees,
475 F.3d 746
[6th Cir. 2007] [Mich.] 9
Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc.,
473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444
[1985] 11
Montelepre v. Waring Architects,
787 So.2d 1127
[La. App. 4th Cir. 5/16/01] 10
Painewebber Incorporated v. The Chase Manhattan Private Bank,
260 F.3d 453, 462
[5th Cir. 2001] 12
Par-Knit Mills, Inc. v. Stockbridge Fabrics Co.,
636 F.2d 51, 54
[3d Cir. 1980] 14
Posadas v. The Pool Depot, Inc.,
858 So.2d 611 [La. App. 1 Cir. 2003],
w.d., 857 So.2d 502, 2003-2125 [La. 2003] 16-17
Diana Poulson v. Trans Union LLC,
406 F.Supp.2d 744
[U.S.D.C. E.D. Tex. 2005] 13
Rainbow Investments, Inc. v. Super 8 Motels, Inc.,
973 F.Supp. 1387, 1390
[U.S.D.C. M.D. Ala. 1997] [Thompson, C.J.] 13
Richland Parish Police Jury v. Debnam,
968 So.2d 294
[La. App. 2 Cir. 10/17/07] 19
James Riley v. GMAC,
cause no. 1:01-CV-00869-WS-D
[U.S.D.C. S.D. Ala. 12/16/02] [docket entry #106] 12-13
Schaffer & Assoc., Inc. v. Demech Contractors, Ltd.,
101 F.3d 40, 43
[5th Cir. 1996] 20
Simpson v. Grimes,
849 So.2d 740 02-869 [La. App. 3 Cir. 2003],
w.d., 861 So.2d 567 [La. 2003] 17
Sphere Drake Insurance Ltd. v. All American Insurance Co.,
256 F.3d 587, 591
[7th Cir. 2001] 10
Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co.,
263 F.3d 26, 30
[2d Cir. 2001] 13
Stark,
381 F.3d at 798 9
Toppings v. Meritech Mortg. Services, Inc.,
140 F.Supp.2d 683
[U.S.D.C. S.D. W.Va. 2001] 6
Toppings v. Meritech Mortg. Services, Inc.,
DOCKET #69, #: 2:00-cv-01055
[U.S.D.C. S.D. W.Va. 9/21/01] 7
Viets v. Andersen,
2003 WestLaw 21525062 *7
[U.S.D.C. S.D. Ind. June 26, 2003] 10
Vigil v. Sears Nat. Bank,
205 F.Supp.2d 566
[U.S.D.C. E.D. La. 2002] 17
Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Univ.,
489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254,
103 L.Ed.2d 488
[1989] 12
Webb v. Investacorp, Inc.,
89 F.3d 252, 258
[5th Cir. 1996] 10-12
Whitehurst v. James Noel Flying Services,
509 So.2d 1035
[La. App. 3 Cir. 1987] 17



Statutory Law Page[s]
Louisiana Const. Art. 5, sec. 10 3
La. C.C. art. 1906 11
La. C.C. art. 1918 11
La. C.C. art. 1927 11
La. C.C. art. 1966 11
La. C.C. art. 1971 11
La. C.C. art. 3099 12
La. C.C. art. 3105[B] 12
La. C.C.P. art. 681 18
La. C.C.P. art. 2201 3
La. R.S. 9:3511 3,15-17
La. R.S. 9:4201, et seq. 14,16
La. R.S. 9:4210 9,20
La. R.S. 9:4210[A] 20
La. R.S. 9:4210[D] 20
La. R.S. 9:4211 7
La. R.S. 9:4213 7
La. R.S. 51:1418 4,15-17
9 U.S.C. §4, FAA 13
9 U.S.C. §10, FAA 20
Regulation B, 12 C.F.R. 202.1, et. seq. [ECOA] 18-19
Regulation Z, 12 C.F.R. 226.1, et. seq. 18-19














1. De Novo Review is the Standard
A Court of Appeal reviews de novo the grant or denial of motion to compel arbitration. Morrison v. Amway Corp., 517 F.3d 248 [5th Cir. (Tex.) 2/6/2008] [addressing as well the lack of an agreement to arbitrate]. Federal policy favoring arbitration does not apply to determination of whether there is valid agreement to arbitrate between parties. Id.
2. There is No Split in Authority Between Gougisha and Aguillard [or any of the Other Cases Listed by Appellee]
Appellee seeks to suggest that Gougisha is aberrant and caused a split in the appellate jurisprudence in this State. That is simply not true. Further, here the issue is not adhesion. Leggio repeatedly said in letters, phone calls, pleadings and briefs filed, and, through counsel at oral argument, that he did not agree to arbitrate and had no such contract with appellee. Aguillard does not split with the authority cited by appellant in his original brief and, in fact, does not differ with any point in Gougisha.
3. The Ninety [90] Day Limitation Does Not Apply
Appellee asserted that the only issue is whether the trial court was mandated to confirm the improper arbitration award. A review of Appellee’s brief made clear that it believes that Appellant is precluded from raising his lack of agreement to arbitrate except in the limited 90 day window following the arbitration award. This issue was squarely dealt with by the full court of the Louisiana Fifth Circuit in NCO Portfolio Management, Inc. v. Bertram Gougisha, c/w FIA Card Services, N.A. v. Dorothy E. Chouest c/w MBNA America Bank, N.A. v. Nicole E. Burdett, --- So.2d ----, 2008 WestLaw 1970319 (La. App. 5 Cir. 4/29/08), (Nos. 07-CA-604 c/w 07-CA-882 c/w 07-CA-884). In a 6-2 decision, the full court held that the 90 day limitation does not apply to a consumer who asserts that he or she did not agree to arbitrate. Appellee asserted that the arbitral forum can ignore such a dispute and can forge forward to establish its own jurisdiction and proceed to render an award. Appellee also asserted that the trial court is merely a rubber-stamp for the arbitral forum and is “mandated” to confirm the award.
4. Leggio Was Denied an Opportunity to Submit Evidence at the Confirmation Proceeding
A motion to confirm, just like a motion to vacate/correct, an arbitration award is not a rubber-stamping formality. It is plainly an evidentiary proceeding which afforded Appellant an opportunity to be heard, which Leggio was denied. Similarly, appellee lacked proper evidence in its submission. Routinely, appellee files motions/petitions to confirm which lack any evidence and, at the evidentiary hearing, fails to introduce any evidence to support the alleged award. Instead, appellee relies upon the award itself as some form of self-authenticating evidence, which it is not. In Gruber v. CACV of Colorado, LLC, Not Reported in S.W.3d, 2008 WestLaw 867459 [Tex. App.- Dallas 4/2/2008], the court, in reversing another debt collector’s similar confirmation proceeding style, held: “However, a court may not take the pleadings to be true absent testimony, other proof, or admissions by the other party. See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ). The court taking judicial notice of the contents of its file does not elevate those averments into proof. See Tex. Dep't of Pub. Safety v. Claudio, 133 S.W.3d 630, 633 (Tex.App.-Corpus Christi 2002, no pet.) (judicial notice of pleadings legally insufficient evidence to support element of expunction); Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 651 (Tex.App.-Corpus Christi 2002, no pet.) (same). Nor are documents attached to pleadings evidence. Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.-San Antonio 2004, no pet.). Simply attaching a document to a pleading does not make the document admissible as evidence, dispense with proper foundational evidentiary requirements, or relieve a litigant of complying with other admissibility requirements. Id.” Louisiana law is the same on all of these points.
It is only after appellee made its prima facie case that Leggio was required to defend against the arbitral award. In this case, appellee failed in its duties. Despite a lack of proper proof to confirm the award, Leggio’s counsel repeatedly advised the trial court that Leggio did not ever agree to arbitrate. Appellee did not once offer anything to contradict that plea. Instead, the trial court accepted appellee’s local counsel’s argument that the confirmation hearing is simply a rubber-stamp and no evidence or testimony could be submitted by Leggio-appellant.
The Gruber court noted that, in Ridgill Bros. v. Dupree, 85 S.W. 1166, 1167 (Tex. Civ. App. 1905, no pet.), the court held that after plaintiff applied for and proved rendition of an award then the burden shifted to the defendant to establish facts that would relieve him from award's effect. The Gruber decision made clear that the process requires evidence, not mere submission of the award.
Leggio was denied important federal and state constitutional due process by the trial court’s refusal to afford Leggio the right to be heard and to submit evidence and testimony to show that he never agreed to arbitrate.
It is important to note that the internet-printed alleged version of the credit card contract filed in the record and printed on Eaton Law Firm stationary is not the contract that existed between appellee and appellant. Appellant was clear that he never agreed to arbitrate. Appellant’s denial of an agreement to arbitrate was not some after-thought but was heralded from his first notice of the purported arbitration proceeding. Leggio has repeatedly and consistently denied that he ever agreed to arbitrate with appellee. Appellee continues to by cheeky by subtly suggesting that appellant has only recently raised this fact. Appellee is simply wrong. Thus, regardless of what “contract” appellee filed, it is not the correct one. Appellee cannot produce the contract that appellant did sign because, if they did, it contains no arbitration agreement.
5. Bank of Louisiana v. Berry is Inapposite and Use of a Credit Card Does Not Create an Agreement to Arbitrate
Appellee cited Bank of Louisiana v. Berry, and a series of similar decisions, to suggest that a signature on a sales receipt creates an enforceable contract. The problem with Appellee’s citation is that Berry dealt with an authorized user of a credit account who used the charge card extensively then claimed a lack of legal liability for the account as Berry was not the account holder, ie., the person who applied for the account and Berry was not a person who ever agreed to pay the balances on the account. The court found that by signing the charge receipts, which contained language of acceptance of liability for the charges made on each receipt, bound Berry to pay for the charges made by Berry regardless of the fact that Berry was not the account holder on that account. Logically, if a credit account is created by one person but used by another, the second person should be bound to pay for the charges made by that person pursuant to basic contract law. The court should note that Berry had nothing to do with an arbitration clause. Indeed, Berry could not have been bound by an arbitration clause which he was never provided nor knew of. The account holder could be subject to an arbitration agreement but only if it existed in the credit card contract he received and agreed to and his agreement was expressed by acceptance of that term. Appellee confuses the legally liability to pay with the idea that an arbitration clause is the equivalent. It is not. The arbitration clause is special language having nothing to do with legal liability for charges.
In reality, Appellee danced around the fact that it has no written contract with Leggio where Leggio agreed to arbitrate. Further, there has been no evidence of any possible oral contract to arbitrate. Appellee wants to convince this Honorable Court that Leggio should be bound by non-existent and fictional additional terms of a credit card agreement. Appellee goes so far as to cite basic credit card contract language and cases where credit card banks reckless issued credit on “verbal” requests. Appellee cites cases where a “signature” was not required to bind a consumer to liability for later charges and charge receipt language. However, appellee did not advise this court that none of those cases extend to binding alleged special terms or alleged arbitration clauses to consumers in those verbal contract scenarios. Not once has such a proposition been accepted by a court.
Appellee also suggested that failure to pay a credit card balance somehow created an agreement to arbitrate. That suggestion was tied to the premise of “use” and surely appellee does not seriously contend that non-payment somehow triggers an agreement to arbitrate.
The lack of a written, signed arbitration agreement is a serious mistake by appellee, if that is what appellee wanted to bargain for. In Lawrence v. Household Bank [SB], N.A., 343 F.Supp.2d 1101 [U.S.D.C. M.D. Ala. 2004], the court stated: There is an exception to the Prima Paint rule, however, for "cases where not merely the enforceability, but the initial formation or existence of a contract, including a disputed arbitration clause, is legitimately called into question, and must be decided by the court." Rainbow Investments, Inc. v. Super 8 Motels, Inc., 973 F.Supp. 1387, 1390 [U.S.D.C. M.D. Ala. 1997] [Thompson, C.J.]. Cases in which there is no signed contract and in which one party denies the existence of an agreement fall into this category. The result is inescapable for appellee, who has repeatedly filed such actions in Louisiana and elsewhere. Failure to properly file collection suits and, instead, filing arbitration cases is not what appellee should have been doing.
In this case, who is demanding arbitration? Appellee is. Whose responsibility should it be to insure that proof of an agreement to arbitrate exists and can be proven? Appellee’s duty, not appellant’s duty. Simply saying that the arbitrator can decide its own jurisdiction is non-sensical.
6. An Arbitrator Cannot Decide if There is an Agreement to Arbitrate and No One Can Contract to Have an Arbitrator Decide What is Delegated to the Court System by Law
Appellee repeatedly said, in brief, that an agreement to arbitrate existed. Saying it over and over does not make that true. Appellee then springs past that mis-statement to claim that the non-existent arbitration agreement allowed the arbitrator to decide its own jurisdiction and powers. Aside from having ignored the lack of an arbitration agreement, appellee then cited an unreported Connecticut state court case claiming that the decision is authority to allow NAF to decide its own powers and whether there was an agreement to arbitrate. Appellant has adequately and previously addressed the fact that the arbitrate cannot determine whether an agreement to arbitrate exists. Such a lofty reach by appellee shows the utter desperation that appellee and the arbitration/credit/collection industry has to foist arbitration regardless of the lack of authority to do so.
7. Appellee’s Cassandra-Like Prediction is Silly
No one believes that the credit card industry will melt down over the Gougisha decision. Appellee’s excerpt from its planned writ application in Gougisha launched a series of doomsday predictions for the arbitration industry and credit card industry [and maybe debt collectors too]. Appellee claimed that Gougisha will “threaten the future of arbitrations” and have “national impact.” Let’s hope so but it might be wishful thinking that Gougisha said more than it did. The fact is that credit card companies have caused their own problem and now seek to streamline and avoid judicial scrutiny through the use of puppet arbitral entities and “awards” which are not based on any evidence and which occur in remote forums where the consumers cannot defend themselves. Each time that courts have stepped in to stop or limit the arbitration abuse, the arbitration/credit/collection industry whines louder with Cassandra-like predictions than the collective consumer body they violate. The same thing occurred when courts enforced the FTC Holder Rule. 16 CFR 433, et. seq.; Scott v. Mayflower Home Imp. Corp., 363 N.J.Super. 145, 831 A.2d 564 [N.J. Super. L. 2001]. Appellee speaks of a “chilling effect” that will overtake courts in rubber-stamping arbitral awards. Again, let’s hope so. The arbitration process is solely controlled by the industry and it caters so. It is time to fix what has run amok. When industry and its arbitrators attempt to enforce arbitration clauses against identity theft victims and others who plainly did not agree to arbitrate, the cart is already in the ditch and the train is off the track.
Appellee repeatedly stated that Gougisha “invalidates all credit card agreements as adhesionary,” and “eliminates all credit card agreements,” and “eliminates” collection of credit card debts, and starts an “economic crisis.” Appellees’ practice of saying these things over and over again in brief does not make these remarks true. These inflammatory statements further the silly rant by appellee. The crisis is not caused by arbitration but due to improvident lending and extension practices. The arbitration problem is that it is conducted in secret and by biased, hand-picked and industry people. The consumer will not win in that environment regardless of the merits of the defense or the cause of action in reconvention.







Dumais v. Am. Golf Corp., 299 F.3d 1216, 1219 (10th Cir.2002) [‘We join other circuits in holding that an arbitration agreement allowing one party the unfettered right to alter the arbitration agreement's existence or its scope is illusory.’); Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306, 315-16 (6th Cir.2000) [arbitration agreement was ‘fatally indefinite’ and illusory because employer ‘reserved the right to alter applicable rules and procedures without any obligation to notify, much less receive consent from,’ other parties) ... Snow v. BE & K Constr. Co., 126 F.Supp.2d 5, 14-15 (D. Maine 2001) (citations omitted) (arbitration agreement illusory because employer ‘reserve[d] the right to modify or discontinue [the arbitration] program at any time’; ‘Defendant, who crafted the language of the booklet, was trying to “have its cake and eat it too.” Defendant wished to bind its employees to the terms of the booklet, while carving out an escape route that would enable the company to avoid the terms of the booklet if it later realized the booklet's terms no longer served its interests.’); Trumbull v. Century Mktg. Corp., 12 F.Supp.2d 683, 686 (N.D. Ohio 1998) (no binding arbitration agreement because ‘the plaintiff would be bound by all the terms of the handbook while defendant could simply revoke any term (including the arbitration clause) whenever it desired. Without mutuality of obligation, a contract cannot be enforced.’)....” Id.




3. Judicial Determination that an Agreement to Arbitrate Exists
The Gougisha court stated: “In interpreting the FAA, the United States Supreme Court has held that a party cannot be compelled to submit a dispute to arbitration if he has not agreed to do so. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). The court explained: “The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the [contract] does in fact create such a duty.” Id. at 649, 106 S.Ct. at 1419, quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547, 84 S.Ct. 909, 912-913, 11 L.Ed.2d 898 (1964).



SPECIFICATIONS OF ERROR
1. The trial court erred in finding that it had no choice but to confirm the arbitration award.
1. The trial court erred in finding that the arbitral forum could decide its own jurisdiction and whether Appellant agreed to arbitrate over Appellant’s objection that he never agreed to arbitrate.
2. The trial court erred in refusing to review the evidence to determine if there was a written and signed agreement to arbitrate in evidence.
3. The trial court erred in refusing to apply La. R.S. 9:3511 and La. R.S. 51:1418, which protects Louisiana citizens from foreign venues and jurisdictions in consumer credit contracts.
4. The trial court erred in finding that Appellee had standing and a right to pursue collection of the subject account.
5. The trial court erred in refusing to vacate the arbitration award and in denying defendant’s-appellant’s motion for new trial.
ISSUES PRESENTED FOR REVIEW
1. Has Appellant shown that the trial court erred in finding that it had no alternative but to confirm the arbitration award?
2. Has Appellant shown that the trial court erred in finding that the arbitral forum could decide its own jurisdiction?
3. Has Appellant shown that the trial court erred in allowing the arbitral forum to ignore Appellant’s notice and proof that he never agreed to arbitrate?
4. Has Appellant shown that the trial court erred in refusing to review the evidence to determine if there was a written and signed agreement to arbitrate in evidence?
5. Has Appellant shown that the trial court erred in refusing to apply La. R.S. 9:3511 and finding that the alleged specimen contract offered by Appellee violated Louisiana law and was unenforceable [regardless that Appellant never signed or agreed to it]?
6. Has Appellant shown that the trial court erred in finding that Appellee had standing?
7. Has Appellant shown that the trial court erred in finding that Appellee had a right to pursue collection of the subject account?
8. Has Appellant shown that the trial court erred in refusing to vacate the arbitration award?
9. Has Appellant shown that the trial court erred in denying defendant’s-Appellant’s motion for new trial?
STATEMENT OF THE CASE
At all pertinent times, Appellant has been and is a Shreveport, Louisiana domiciliary. Proffer, Sworn Statement of Leggio, 1/3/08, p.3; Tr.T. pp.11,13. In June, 2005, Appellant sought and received revolving credit from Bank One, NA. Tr.T. p.143. The Bank One, NA, account went into default. Proffer, Sworn Statement of Leggio, 1/3/08, p.3. Subsequently Appellee, through a debt collection law firm called “Mann Bracken” from Georgia, claimed a right to collect on the Bank One, NA, account and demanded arbitration. Proffer, Sworn Statement of Leggio, 1/3/08, p.4. Appellant demanded proof of a written agreement to arbitrate between Appellant and Appellee. Proffer, Sworn Statement of Leggio, 1/3/08, p.4. Appellee refused to provide any such proof. Proffer, Sworn Statement of Leggio, 1/3/08, pp.4-5. Appellee provided a generic consumer credit contract [Chase Bank USA, NA] specimen document but not any document that Appellant agreed to and no document signed by Appellant. Proffer, Sworn Statement of Leggio, 1/3/08, p.5. Indeed, Appellant never signed any written document agreeing to arbitrate with Appellee or Bank One, NA. Proffer, Sworn Statement of Leggio, 1/3/08, p.5.
On February 15, 2007, immediately after being notified of Mann Bracken’s intent to foist an arbitration upon Appellant, Appellant wrote Mann Bracken and Appellee and advised both that Appellant never agreed to arbitrate. Proffers 1-3, introduced; Proffer, Sworn Statement of Leggio, 1/3/08, pp.3-9. Appellee, Mann Bracken and National Arbitration Forum [NAF] proceeded with an arbitration in the State of Minnesota despite the written objection. Proffer, Sworn Statement of Leggio, 1/3/08, pp.5-6. Appellant only received a purported Award from NAF at some point in time. Proffer, Sworn Statement of Leggio, 1/3/08, pp.6-7; Tr.T. pp.83-84.
On June 1, 2007, Appellee named Defendant-Appellant in a Petition to Confirm an Arbitration Award for damages allegedly arising from the Bank One, NA, credit card account. Tr.T. p.4; Proffer, Sworn Statement of Leggio, 1/3/08, p.7. On June 18, 2007, Appellant filed a verified Answer denying the allegations of the petition and thereafter also filed denials to the requests to admit information from Appellee. Tr.T. pp.6-13,35-36. In an affidavit signed after being administered an oath and in the presence of a Notary who also signed as an officer, Appellant swore, inter alia, that he “never entered into any agreement to arbitrate disputes with plaintiff.” Tr.T. p.12; Proffer, Sworn Statement of Leggio, 1/3/08, p.7. In that same affidavit, which was filed into the suit record with the Answer, Appellant testified that he “objected to plaintiff’s arbitration claim at the National Arbitration Forum.” Id. Repeatedly, at both hearings held by the lower court, as discussed further below, Appellant stated and testified that he never agreed to arbitrate with plaintiff at all, never waived his rights, and did not agree to arbitrate in Minnesota, where National Arbitration Forum purported to hold an arbitration on behalf of Appellee and in which National Arbitration Forum claimed to enter an Award adverse to Appellant. Appellant likewise challenged Appellee’s right to collect any sums from him, Appellee’s standing to sue Appellant, Appellee’s compliance with arbitral restrictions by law, and Appellant raised contractual and tort defenses to the claims. Tr.T. pp.7-12. On June 29, 2007, Appellant served written discovery devices to Appellee. Tr.T. 14-34. Reciprocally, Appellee served Appellant with discovery, which Appellant again responded to by asserting that he never agreed to arbitrate. Tr.T. pp.35-36.
There is a cozy and symbiotic relationship between other collectors/creditors [like CACV of Colorado, LLC, a debt collector] and National Arbitration Forum [NAF] which belies the same type of fraud perpetrated upon Appellant here. Multiple reported decisions show that CACV has attempted repeatedly to confirm inappropriate “awards” of NAF across the country and courts have rejected those efforts. CACV of Colorado, LLC v. Corda, Not Reported in A.2d, 2005 WestLaw 3664087 [Conn. Super. 2005]; CACV of Colorado, LLC v. Acevedo, Not Reported in A.2d, 2005 WestLaw 2981673 [Conn. Super. 2005]; CACV of Colorado, LLC v. McNeil, Not Reported in A.2d, 2005 WestLaw 2981676 [Conn. Super. 2005]; CACV of Colorado, LLC v. Werner, Not Reported in A.2d, 2005 WestLaw 2981677 [Conn. Super. 2005]; CACV of Colorado, LLC v. Cassidy, Not Reported in A.2d, 2005 WestLaw 2981680 [Conn. Super. 2005]. The court in Toppings v. Meritech Mortg. Services, Inc., 140 F.Supp.2d 683 [U.S.D.C. S.D. W.Va. 2001], went so far and to deny the motion to compel arbitration before NAF, after taking evidence, and permitted plaintiff to conduct discovery into the bias of NAF. On September 21, 2001, the court dismissed, upon plaintiff’s motion, the duplicative federal action and noted that the state court, in the parallel action, had determined NAF was a biased and improper forum. DOCKET #69, #: 2:00-cv-01055 [U.S.D.C. S.D. W.Va. 9/21/01].
It is further noteworthy that the purported award arose from NAF’s alleged proceeding in the State of Minnesota, not in this Parish or State. La. R.S. 9:4211. In this case, the “award” was delivered and filed by Appellee in this proceeding. La. R.S. 9:4213.
ACTION OF THE TRIAL COURT
On August 13, 2007, Appellee filed a “Motion and Memorandum to Confirm Arbitration Award and to Compel Discovery.” Tr.T. pp.37-56. Appellee’s motion and memo portray Appellee’s belief that confirmation of an arbitral Award from its symbiotic partner National Arbitration Forum is merely a matter of being rubber-stamped by the court regardless of Appellant’s repeated assertion that he never agreed to arbitrate.
Though addressed in greater detail herein, the lower court set Appellee’s motion for oral argument. Tr.T. p.38. On October 24, 2007, oral argument was had on Appellee’s motion. Tr.T. pp.124-134. The lower court refused to allow Appellant to introduce any evidence or testimony to show that Appellant had not agreed to arbitrate with Appellee and Appellee was not entitled to confirm an arbitration Award where the arbitral forum lacked the power to render such an Award. Tr.T. pp.129,133-134.
The lower court was aware that when Mann Bracken first notified Appellant of its intent to hold an arbitration in the State of Minnesota, Appellant objected and advised Mann Bracken, Appellee, and National Arbitration Forum that he never agreed to arbitrate with Appellee. Def. EXH. 1-2; Tr.T. pp.138-142. Nonetheless, ignoring this matter, on March 28, 2007, National Arbitration Forum recited in its “Award” to Appellee that National Arbitration Forum decided its own jurisdiction and decided that an arbitration agreement did exist. Tr.T. pp.82-83. Contrary to reality, National Arbitration Forum suggested in the same Award that “No party has asserted that this Arbitration Agreement is invalid or unenforceable.” Id.
On October 24, 2007, the lower court entered Judgment in favor of Appellee and against Appellant, in the sum of $8,632.29, with judicial interest thereon and costs. Tr.T. p.93. On October 31, 2007, Appellant filed a Motion For New Trial. Tr.T. p.95-100. Trial on the motion was set for December 6, 2007, but then continued to December 19. Tr.T. pp.97,105. On December 19, 2007, the lower court again refused to allow Appellant the opportunity to offer and introduce any evidence, although Appellant was now appearing with counsel, attorney David Lefeve. Tr.T. pp.102-103,138-158. The lower court entered judgment stating that it dismissed the motion for new trial. Tr.T. p.106; Proffer, Sworn Statement of Leggio, 1/3/08, p.8. A Notice of Appeal was timely filed on December 28, 2007. Tr.T. pp.108-109. On January 9, 2008, new counsel for Appellant filed a Motion and Order to Accept and File Proffer of Evidence. Tr.T. pp.112-113. That motion was granted. Id. Appellee filed a Motion to Strike the Motion and Order to Accept and File Proffer of Evidence. Tr.T. pp.114-115,119-120. The Motion to Strike was opposed by Appellant and the lower court properly denied Appellee’s Motion to Strike and permitted the proffer. Tr.T. 113,116-118.
ARGUMENT
1. The trial court erred in finding that it had no choice but to confirm the arbitration award.
Not just once but a number of times, Judge Rabb stated that he had no choice but to confirm the arbitral award. Tr.T. pp.129 [Judge Rabb: “But all I’m just here is to to confirm the arbitration award”]; 149 [“...limited in what I can do.”]; 150 [“All I can do is confirm the arbitration you know like it the arbitration award that’s what I’m limited to do”]. A review of his repeated comments showed that Judge Rabb erroneously believed that the court is a mere “rubber stamp” for any “award” and petition to confirm filed by a party. Judge Rabb also repeatedly suggested that Appellant appeal to this Honorable Court as Judge Rabb believed that his only decision had to be to confirm. Tr.T. pp.128-129,131,133-134,149. Despite Appellant’s repeatedly testimony that he never agreed to arbitrate, which was not contradicted by any competent evidence, Judge Rabb chose to simply punt to the court of appeal. Tr.T. pp.126-129,133,139-140,143,146-147. At one point, Judge Rabb suggested that Appellant remove the case to federal court. Tr.T. p.134.
Louisiana and federal law provide that an arbitration award shall be vacated in certain circumstances. Marsh Farms v. Olvey, 974 So.2d 194 [La. App. 2 Cir. 2008] [Louisiana Arbitration Act and FAA are “virtually identical”]. Under Louisiana law, “An arbitration award shall be vacated when it was procured by corruption, fraud, or undue means; or where there was evident partiality or corruption on the part of the arbitrator; or where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. La. R.S. 9:4210.” LaCour's Drapery Co., Inc. v. Brunt Const., Inc., 939 So.2d 424, 2006 WestLaw 1751899 [La. App. 1 Cir. 6-28-06].
Courts are not “limited” in their abilities and power to determine if both parties agreed to arbitrate or decide if the arbitration process and award are a mere sham or lacking in meeting standards of fairness and due process. Beckman v. H&R Block Financial Advisors, Inc., Slip Copy, 2007 WestLaw 1288011 [U.S.D.C. Minn. 2007] [“Arbitration awards, however, are not inviolate, and the court need not merely rubber stamp the arbitrators' interpretations and decisions.” Citing Stark, 381 F.3d at 798.]; Michigan Family Resources, Inc. v. Service Employees, 475 F.3d 746 [6th Cir. 2007] [Mich.]; Brentwood Medical Associates v. United Mine Workers of America, 396 F.3d 237, 242 [3d Cir. 2005]; Carty v. Nationwide Ins Co, 149 A.D.2d 328 [1st Dept 1989]; Davis Alarms, Inc. v. Aftar, 15 Misc.3d 1142[A], 841 N.Y.S.2d 819, 2007 WestLaw 1558866 [N.Y. City Civ. Ct. 2007].
This Honorable Court has recognized the unusual nature of arbitrations in connection with consumer credit contracts and, particularly, those in the creditor/collector-consumer arena. This Honorable Court, in Judge Brown’s concurring opinion, in FIA Card Services, N.A. v. Gibson, --- So.2d ----, 2008 WestLaw 725415 [FN 1] [La. App. 2 Cir. 2008], noted that “...the appellate court's function is to determine whether the arbitration proceedings have been fundamentally fair. Montelepre v. Waring Architects, 2000-0671 [La. App. 4th Cir. 5/16/01], 787 So.2d 1127.” It is also the function of the trial court.
2. The trial court erred in finding that the arbitral forum could decide its own jurisdiction and whether Appellant agreed to arbitrate over Appellant’s objection that he never agreed to arbitrate.
Judge Rabb erroneously suggested that the arbitral forum had the right to decide its own jurisdiction. Tr.T. p.150. It does not. The court’s authority and duty to determine if the parties agreed to argue is not displaced into a mere rubber-stamping conduit. Supra.
“[Q]uestions regarding the existence of an arbitration agreement are generally for the court to decide.” Sphere Drake Insurance Ltd. v. All American Insurance Co., 256 F.3d 587, 591 [7th Cir. 2001]; Matterhorn, 763 F.2d at 868; Viets v. Andersen, 2003 WestLaw 21525062 *7 [S.D. Ind. June 26, 2003]; Lee v. Deloitte & Touche, LLP, 2002 WestLaw 31433421 *2 [N.D. Ill. Oct.31, 2002]. This includes the question of whether one of the parties actually entered into the contract being offered as containing an arbitration clause. Sphere Drake, 256 F.3d at 590-91; Chastain v. Robinson-Humphrey Co., 957 F.2d 851, 854-56 [11th Cir. 1992]; Carbajal v. Household Bank, FSB, 2003 WestLaw 22159473 *6 n.6 [N.D. Ill. 2003].
The first step is to determine whether the parties agreed to arbitrate the dispute. Webb v. Investacorp, Inc., 89 F.3d 252, 258 [5th Cir.1996]; Greene v. Chase Manhattan Automotive Finance Corp., Not Reported in F.Supp.2d, 2003 WestLaw 22872102 [U.S.D.C. E.D. La. 2003]. In this analysis, the Court must determine "whether there is a valid agreement to arbitrate between the parties" and "whether the dispute in question falls within the scope of that arbitration agreement." Id. [citing Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 [1985]]. To determine whether the parties agreed to arbitrate the dispute, "courts generally ... should apply ordinary state-law principles that govern the formation of contracts." Id. [citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 [1995]]. Depending on the language of the arbitration provision, there may be an additional threshold inquiry before the Court would reach the issue of whether the particular controversy falls within the scope of the arbitration agreement.
The threshold inquiry is whether there exists a valid agreement to arbitrate. Webb, 89 F.3d, at 258. Under Louisiana law, a contract is an agreement by two or more parties in which obligations are created, modified, or extinguished. La. C.C. art. 1906. The Louisiana Civil Code requires four elements for the confection of a valid contract: [1] the parties must possess the capacity to contract; [2] the parties must freely give their mutual consent; [3] there must be a certain and lawful object for the contract; and [4] there must be lawful cause. La. C.C. arts. 1918, 1927, 1971, 1966; Greene v. Chase Manhattan Automotive Finance Corp., Not Reported in F.Supp.2d, 2003 WestLaw 22872102 [U.S.D.C. E.D. La. 2003].
In Maranto v. Citifinancial Retail Servs., 2005 WestLaw 3369948, 2005 U.S.Dist.LEXIS 31352 *4 [U.S.D.C. W.D. La. 2005], plaintiff faced a motion to compel arbitration. Plaintiff testified that he did not agree to arbitrate with the defendant. An ID theft defrauder had created the credit account through application fraud. The court, in rejecting the arbitration demand, held that “Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. In determining whether the parties have agreed to arbitrate the dispute in question, the court must consider:[1] whether a valid agreement to arbitrate between the parties exists; and [2] whether the dispute in question falls within the scope of that arbitration agreement. Always present in the analysis is the strong federal policy favoring arbitration which requires resolution of any ambiguity in favor of arbitration. Painewebber Incorporated v. The Chase Manhattan Private Bank, 260 F.3d 453, 462 [5th Cir. 2001].”
In resolving these "gateway issues," the court is to apply ordinary state common law governing the formation of contracts. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 1254, 103 L.Ed.2d 488 [1989]; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 n. 9, 115 S.Ct. 1212, 1219 n. 9, 131 L.Ed.2d 76 [1995].
In CACV of Colorado v. Janice Robinson, No. 505,474-C, 1st Judicial District Court, Caddo Parish, Louisiana, Judge Scott considered and refused a request by National Arbitration Forum to enforce an alleged arbitral award against a consumer who had not consented to arbitration. Further, the debt at issue was prescribed. Defendant showed that the NAF arbitration award could not be enforced or upheld upon a showing that it was procured by corruption, fraud or undue means. Defendant further showed that she had not agreed to submit any dispute to arbitration with NAF or the lender in connection with the alleged account. La. C.C. art. 3099. Absent lawful and proper submission and lawful arbitration proceeding, prescription is not interrupted by the filing of an
arbitration. La. C.C. art. 3105[B] [requires agreement to arbitrate and lawful proceeding]. Judge Scott refused to enforce the arbitration award and vacated it and found the alleged debt to be prescribed
In another analogous case, Discover Financial Services filed a motion to compel arbitration against an identity theft victim, James Riley, in consolidated actions captioned James Riley v. GMAC, cause no. 1:01-CV-00869-WS-D [U.S.D.C. S.D. Ala. 12/16/02]. On December 16, 2002, docket entry #106, now Chief Judge Granade entered an unreported Order denying Discover’s Motion to Compel Arbitration, and Motion to Stay Discovery. Judge Granade found that the victim did not consent to any such arbitration clause and arbitration cannot be enforced absent an agreement to arbitrate. Also see: Diana Poulson v. Trans Union LLC, 406 F.Supp.2d 744 [U.S.D.C. E.D. Tex. 2005]; Barker v. Trans Union LLC, Not Reported in F.Supp.2d, 2004 WestLaw 783357 [U.S.D.C. N.D. Ill. 2004]; Lawrence v. Household Bank [SB], N.A., 343 F.Supp.2d 1101 [U.S.D.C. M.D. Ala. 2004] [“There is an exception to the Prima Paint rule, however, for ‘cases where not merely the enforceability, but the initial formation or existence of a contract, including a disputed arbitration clause, is legitimately called into question, and must be decided by the court.’ Rainbow Investments, Inc. v. Super 8 Motels, Inc., 973 F.Supp. 1387, 1390 [M.D. Ala. 1997] [Thompson, C.J.].”].
In Boran v. Columbia Credit Services, Inc., Slip Copy, 2006 WestLaw 3388400 [U.S.D.C. Conn. 2006], the court faced a similar situation, where the consumer denied having agreed to arbitrate claims. Columbia Credit Services also used the industry-friendly National Arbitration Forum, in an effort to foist arbitration. The court held that “In the event that the making of the arbitration agreement is in issue, “the court shall proceed summarily to the trial” of that issue. Id. §4; See Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co., 263 F.3d 26, 30 [2d Cir.2001][“[i]f the making of the agreement to arbitrate is placed in issue ... the court must set the issue for trial.”] In addition, if the making of the arbitration agreement has been placed at issue, “the party alleged to be in default may ... demand a jury trial of such issue.” 9 U.S.C. §4. “[U]pon such a demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure ... or may specifically call a jury for that purpose...Before a trial on arbitrability is warranted, however, “the party putting the agreement to arbitrate in issue must present ‘some evidence’ in support of its claim.” 9 U.S.C. §4. See Interocean Shiping Co. v. Nat'l Shipping & Trading Corp., 462 F.2d 673, 676 [2d Cir.1972]; Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625, 628 [2d Cir.1945].” The Boran court made clear that “Thus, ‘[i]f there is an issue of fact as to the making of the agreement for arbitration, then a trial is necessary. Bensadoun, 316 F.3d at 175. “Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement.’ Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 [3d Cir. 1980].”
There was absolutely no evidence that Appellant agreed to arbitrate claims with Appellee. Appellant properly objected to the arbitral process. Appellee was bound to seek an order compelling, which it refused to do. NAF was bound not to proceed either but NAF did so.
3. The trial court erred in refusing to review the evidence to determine if there was a written and signed agreement to arbitrate in evidence.
This Honorable Court in FIA Card Services, N.A. v. Gibson, --- So.2d ----, 2008 WestLaw 725415 [La. App. 2 Cir. 2008], recently stated: “Arbitration is a process of dispute resolution in which a neutral third party [arbitrator] renders a decision after a hearing at which both parties have an opportunity to be heard. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Conagra Poultry Company v. Collingsworth, 30,155 [La. App. 2d Cir. 1/21/98], 705 So.2d 1280....Arbitration in this state is governed by the Louisiana Arbitration Act found in La. R.S. 9:4201 et seq. La. R.S. 9:4201 provides: 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 thereof, or an agreement in writing between two 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, save upon such grounds as exist at law or in equity for the revocation of any contract. [emphasis added].” The requirement of a written contract, signed by the parties, proving the agreement to arbitrate is central to a binding right of either party to enforce a clause that has an effect of taking away a party’s rights to be heard by an individual elected or appointed who is educated in law. For reasons so clear, the credit and collection/debt buyers industry members have placed NAF’s name in form credit card agreements and other mailers claiming to be change in terms, all in an effort to lock the courthouse doors. Here there is no express or even implied agreement to arbitrate.
4. The trial court erred in refusing to apply La. R.S. 9:3511 and La. R.S. 51:1418, which protect Louisiana citizens from foreign venues and jurisdictions in consumer credit contracts.
Plaintiff has not waived the application of Louisiana law. The Chase Bank USA specimen document is not a document binding upon Appellant. Tr. T. pp.85-88. Appellant never agreed to accept and be bound by Chase’s document. Appellee presented that document as the alleged account holder agreement although Appellee knew it was not. After objection by Appellant, Appellee filed pleadings and briefs with the court citing bizarre reasons for why Appellee could not present any assignment [purportedly from Chase Bank, NA to Appellee], or the only credit application from Appellant to Bank One, NA [also constituting an account holder agreement after Bank One, NA created the account], or any other documentation between Bank One, NA and Appellant. Infra.
In Louisiana, Appellant is protected by La. R.S. 9:3511 which states: “A. Subject to the provisions of R.S. 9:3511[B], the parties to a consumer credit transaction may agree that the law of the place wherein the consumer credit transaction was entered into or the law of the residence of the buyer or debtor shall apply. For the purposes of this Chapter the residence of a buyer or debtor is the address given by him as his residence in any writing signed by him in connection with a consumer credit transaction. Until he notifies the creditor of a new or different address, the given address is presumed to be unchanged....
C. Except as otherwise provided herein, the following agreements by a consumer are invalid with respect to consumer credit transactions, or modifications thereof, to which this chapter applies: [1] by which the consumer consents to the jurisdiction of another state; and [2] that fix venue....[emphasis added.].”
Further shedding light on this statute is La. R.S. 51:1418. It provides: “A. A consumer transaction or modification of a consumer transaction is made in this state when: [1] a writing signed by the consumer and evidencing the obligation is received by the merchant in this state, or when [2] the merchant negotiates in this state personally or by mail, telephone or otherwise, for a transaction with a consumer consummated outside the state.
B. Notwithstanding any other provision of law to the contrary, this Act applies if the consumer is a resident of this state at the time of the consumer transaction and either of the conditions specified in Subsection A of this section are present.
C. The following terms of a writing executed by a consumer are invalid with respect to consumer transactions or modifications thereof: [1] that the law of another state will apply; [2] that the consumer consents to the jurisdiction of another state; or [3] any term that fixes venue. [emphasis added.].”
In Posadas v. The Pool Depot, Inc., 858 So.2d 611 [La. App. 1 Cir. 2003], w.d., 857 So.2d 502, 2003-2125 [La. 2003], abrogated only as to its adhesionary clause analysis in Aguillard v. Auction Management Corp., 908 So.2d 1 [La. 6/29/05], the concurring opinion, noted that a consumer contract purporting to require an arbitration in Texas was invalid and illegal under La. R.S. 51:1418, as it sought to fix venue. The concurring Judge also recited that “...the Louisiana Binding Arbitration Law, LSA-R.S. 9:4201, et seq., does not supercede the Louisiana Unfair Trade Practice and Consumer Protection Law.” If it is illegal for a contract to provide that the consumer consents to jurisdiction in the courts of another state, it certainly is illegal to make the consumer consent to jurisdiction before a non-judicial tribunal unaffiliated with any state.
Appellant respectfully shows that Louisiana law prohibits the fixing of venues in foreign states in consumer credit contracts. La. R.S. 9:3511 and La. R.S. 51:1418 have been largely ignored in handling the abuses of arbitration and efforts to fix the forum, venue and law to a distant place from Louisiana although the consumer is a Louisiana domiciliary. The Aguillard decision attacked the Posadas, supra, decision and Simpson v. Grimes, 849 So.2d 740 02-869 [La. App. 3 Cir. 2003], w.d., 861 So.2d 567 [La. 2003], only with respect to findings that the adhesionary nature of the arbitration clauses would not be enforced. Aguillard did not address the First and Third Circuits’ proper application of La. R.S. 9:3511 and La. R.S. 51:1418. The Whitehurst v. James Noel Flying Services, 509 So.2d 1035 [La. App. 3 Cir. 1987], decision permitted application of another states’ law in a consumer credit contract but specifically noted that the case did not involve a jurisdiction issue. In Whitehurst, fixing venue was not an issue. In Vigil v. Sears Nat. Bank, 205 F.Supp.2d 566 [U.S.D.C. E.D. La. 2002], the court found that Arizona law [choice of law] applied to a consumer credit contract and found that the “agreement is entered into in Arizona.” Thus, the federal court allowed Arizona aw to be applied and allowed venue fixing outside of Louisiana. The Vigil decision has received some criticism by other courts. To date, counsel can find no decision varying from the Posadas, supra, decision and Simpson, supra, decision which gave proper interpretation and application of La. R.S. 9:3511 and La. R.S. 51:1418.
5. The trial court erred in finding that Appellee had standing and a right to pursue collection of the subject account.
This action and the claims and defenses pre-dated this Honorable Court’s decision in FIA Card Services, N.A. v. Gibson, --- So.2d ----, 2008 WestLaw 725415 [La. App. 2 Cir. 2008], however it is uncanny that similar issues exist in each case. In FIA Card Services, N.A. v. Gibson, this court held that “Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681; Downs v. Hammett Properties, Inc., 39,568 [La. App. 2d Cir. 4/6/05], 899 So.2d 792.” Though Appellant, while pro se, did properly state as a defense that Appellee lacked a right of action and standing to file this petition, an exception of no right of action was not separately filed. Tr.T. 6. Though Appellant did not file a peremptory exception, in this case, like in FIA Card Services, Appellee here filed no competent proof of any assignment by Bank One, NA, to Chase-Appellee. There is no assignment or third party beneficiary contract [stipulation] at all. That proof is required. Coastal Credit Co. v. American Waste and Pollution Control Co., 583 So.2d 553 [La. App. 3 Cir. 1991].
It should be noted that the purported arbitration agreement [specimen] filed into the record by Appellee is a “Chase Bank USA, NA” specimen document, not even a Bank One specimen. Tr.T. p.85. Again, Appellee has no document signed by Appellant containing an arbitration clause.
Here, there is no valid assignment in the record. Coastal Credit Co. v. American Waste and Pollution Control Co., 583 So.2d 553 [La. App. 3 Cir. 1991]. How could NAF have even considered a claim by one entity to an account opened and used with a second entity, without any proof whatsoever of an assignment of rights or stipulation pour autri? Strange indeed. Appellant demanded documentation of the assignment. Appellee has suggested that “the creditor’s obligation to retain the records, information and documents...is narrow and well defined.” Tr.T. p.42. In response to Appellant’s discovery, Appellee again claimed it had no such documentation as such documentation was allegedly destroyed after 25 months. Tr.T. p.57. This entire argument and line of defense to Appellant’s request for information are ridiculous. Regulation Z and Regulation B require record retention on credit applications and adverse action results/denials for a two year period, in order to protect the lender in the event a consumer files a consumer law claim arising from such failed application, etc. These regulations do not command a lender to destroy records after two years. The suggestion that the original Bank One, NA, application and account documentation do not exist due to Reg. Z and Reg. B is a specious argument. To suggest that an alleged account assignment was destroyed is equally silly.
In an exception of no right of action, Appellant would have had the burden. Richland Parish Police Jury v. Debnam, 968 So.2d 294 [La. App. 2 Cir. 10/17/07]. However, the matter came before the trial court in connection with Appellee’s Petition to Confirm. Appellee still had the obligation to prove its own standing to pursue the claims, particularly in light of Appellant’s objection and pleading. Coastal Credit Co. v. American Waste and Pollution Control Co., 583 So.2d 553 [La. App. 3 Cir. 1991]; D.H. Holmes Co., Ltd. v. Dronet, 432 So.2d 1135 [La. App. 3 Cir. 1983]. Louisiana law is clear that Appellee bore the burden of proving its right and standing to pursue collection. Appellee has failed to meet that burden. Appellant did raise the matter in formal, written and filed pleadings.
6. The trial court erred in refusing to vacate the arbitration award and in denying defendant’s-Appellant’s motion for new trial.
Appellee’s argument that Appellant failed to timely move to vacate its arbitration award presupposed at least several things: [1] a valid arbitration agreement; [2] proper notice and opportunity to be heard; [3] fundamental fairness of the process; [4] an award by a tribunal having power to render an award; and [5] an award that could be sustained despite review by the trial court and court of appeal. Absent an agreement to arbitrate, Appellant is free to object at any time. This is akin to a judgment rendered by a court lacking personal jurisdiction. Just because a judgment is rendered does not make it valid nor does it impose duties on the named defendant to act until there is an effort to enforce that judgment in defendant’s home state and against his/her/its assets.
Under La. R.S. 9:4210, Judge Rabb was bound to vacate the award upon the uncontroverted proof that the “award” was “procured by corruption, fraud, or undue means.” La. R.S. 9:4210[A]. Further, the “arbitrators exceeded their powers...that a mutual, final, and definite award upon the subject matter submitted was not made.” La. R.S. 9:4210[D]; 9 U.S.C. §10; Collins v. Prudential Ins. Co. of America, 752 So.2d 825 [La. 2000]; Schaffer & Assoc., Inc. v. Demech Contractors, Ltd., 101 F.3d 40, 43 [5th Cir. 1996].
CONCLUSION
Appellant respectfully requests that this Honorable Court reverse the Trial Judge's decision and judgment, vacate the arbitration award, dismiss the petition to confirm arbitration award, and remand this case for further proceedings consistent with your ruling. The Trial Court's decision in rendering judgment was erroneous and contrary to the law and uncontested evidence introduced and proffered by Appellant. Permitting Appellee’s Judgment to stand would be a grave injustice to Appellant under the evidence presented.
C E R T I F I C A T E

I hereby certify that a copy of the above and foregoing Original Brief was served upon Greg Eaton and Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ______ day of __________________, 2008.


____________________________________
OF COUNSEL
V E R I F I C A T I O N

STATE OF LOUISIANA
PARISH OF CADDO

BEFORE ME, THE UNDERSIGNED NOTARY, personally came and appeared David A. Szwak, attorney for Appellant-Defendant herein, who after being sworn, did depose and state: That a copy of the above and foregoing this Original Brief was served upon Greg Eaton and Brandon Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ____ day of ___________________, 2008. Further, that he has prepared and read this Original Brief and all statements made therein are true and correct to the best of his knowledge.


________________________________
David A. Szwak

SWORN TO AND SUBSCRIBED BEFORE ME THIS THE __ DAY OF ____________, 2008.


________________________________
NOTARY PUBLIC

Counsel:
Greg Eaton
Linda Lynch
P.O. Box 3001
Baton Rouge, Louisiana 70821-3001

and

Brandon Trey Morris
509 Milam St.
Shreveport, Louisiana 71101
Counsels for Appellee

and

Trial Judge:
Honorable David Rabb, Ad Hoc Trial Judge
Shreveport City Court
P.O. Box 37066
1230 Texas St.
Shreveport, Louisiana 71133-7066
Attachments
APPEAL.REPLY.CHASE.BANK.USA.v.LEGGIO.4188.FINAL.4.21.08.pdf
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David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
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Chairman, Consumer Protection Section, Louisiana State Bar Association

Administrator
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Re: LOUISIANA - APPEAL TO COURT OF APPEAL -DEFEATING ARB EFF

Postby Administrator » Thu Oct 09, 2014 5:32 am

SUPPLEMENTAL MEMO/BRIEF


COURT OF APPEAL, SECOND CIRCUIT
STATE OF LOUISIANA
DOCKET NO. 43,567-CA


CHASE BANK USA, N.A. APPELLEE

VERSUS

VINCENT L. LEGGIO APPELLANT

ON APPEAL FROM THE
SHREVEPORT CITY COURT IN
THE PARISH OF CADDO, STATE OF LOUISIANA
DOCKET NO. 2007R04188
HONORABLE DAVID RABB, AD HOC CITY COURT JUDGE

APPEAL BY DEFENDANT-APPELLANT,
VINCENT L. LEGGIO

MOTION AND ORDER TO ALLOW SUPPLEMENT MEMORANDUM,
ON BEHALF OF VINCENT L. LEGGIO, APPELLANT
NOW INTO COURT, through undersigned counsel, comes DEFENDANT-APPELLANT, VINCENT L. LEGGIO, who respectfully requests that this Honorable Court permit appellant to supplement his original brief with one additional authority which was just rendered by the Louisiana Fifth Circuit Court of Appeal, as follows:
1.
Good cause exists to permit this filing. On April 29, 2008, the Louisiana Fifth Circuit Court of Appeal, on en banc hearing, rendered its opinion in NCO Portfolio Management, Inc. v. Bertram Gougisha, no. 07-CA-604 c/w Fia Card Services, NA v. Dorothy E. Chouest, no. 07-CA-882, c/w MBNA America Bank, NA v. Nicole E. Burdett, no. 07-CA-884. See attached exhibit. The Gougisha, et al, decision addressed many of the issues addressed by Leggio in this appeal.
WHEREFORE APPELLANT PRAYS that this motion be granted and that the attached supplemental brief and authority be filed and considered by the Panel of this Honorable Court.

Submitted by:

Bodenheimer, Jones & Szwak, LLC


By: _________________________
David A. Szwak LBR# 21157
509 Market St., Ste. 730
United Mercantile Bank Bldg
Shreveport, Louisiana
71101
[318] 424-1400
FAX: 221-6555
ATTORNEYS FOR VINCENT L. LEGGIO, APPELLANT
THIS IS A CIVIL CASE
C E R T I F I C A T E
I hereby certify that a copy of the above and foregoing Original Brief was served upon Greg Eaton and Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ______ day of __________________, 2008.

_________________________________
OF COUNSEL
V E R I F I C A T I O N

STATE OF LOUISIANA
PARISH OF CADDO

BEFORE ME, THE UNDERSIGNED NOTARY, personally came and appeared David A. Szwak, attorney for Appellant-Defendant herein, who after being sworn, did depose and state: That a copy of the above and foregoing motion and supplemental brief was served upon Greg Eaton and Brandon Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ____ day of ___________________, 2008. Further, that he has prepared and read this motion and brief and all statements made therein are true and correct to the best of his knowledge.

_____________________________
David A. Szwak

SWORN TO AND SUBSCRIBED BEFORE ME THIS THE __ DAY OF ____________, 2008.

________________________________
NOTARY PUBLIC

Counsel:
Greg Eaton
Linda Lynch
P.O. Box 3001
Baton Rouge, Louisiana 70821-3001

and

Brandon Trey Morris
509 Milam St.
Shreveport, Louisiana 71101
Counsels for Appellee

and

Trial Judge:
Honorable David Rabb, Ad Hoc Trial Judge
Shreveport City Court
1244 Texas St.
Shreveport, Louisiana 71101


COURT OF APPEAL, SECOND CIRCUIT
STATE OF LOUISIANA
DOCKET NO. 43,567-CA


CHASE BANK USA, N.A. APPELLEE

VERSUS

VINCENT L. LEGGIO APPELLANT

ON APPEAL FROM THE
SHREVEPORT CITY COURT IN
THE PARISH OF CADDO, STATE OF LOUISIANA
DOCKET NO. 2007R04188
HONORABLE DAVID RABB, AD HOC CITY COURT JUDGE

APPEAL BY DEFENDANT-APPELLANT,
VINCENT L. LEGGIO

SUPPLEMENT MEMORANDUM,
ON BEHALF OF VINCENT L. LEGGIO, APPELLANT
MAY IT PLEASE THE COURT:
NOW INTO COURT, through undersigned counsel, comes DEFENDANT-APPELLANT, VINCENT L. LEGGIO, who respectfully seeks to supplement his original brief with one additional authority which was just rendered by the Louisiana Fifth Circuit Court of Appeal, as follows:
As argued in this appeal, arbitration has become the single largest abuse to consumers. On April 29, 2008, the Louisiana Fifth Circuit Court of Appeal, on en banc hearing, rendered its opinion in NCO Portfolio Management, Inc. v. Bertram Gougisha, no. 07-CA-604 c/w Fia Card Services, NA v. Dorothy E. Chouest, no. 07-CA-882, c/w MBNA America Bank, NA v. Nicole E. Burdett, no. 07-CA-884. See attached exhibit. The Gougisha, et al, decision addressed many of the issues addressed by Leggio in this appeal and involved the same attorneys, although undersigned was an Amicus counsel in Gougisha, et al.
The Fifth Circuit consolidated the Gougisha, et al, appeals due to the parties and issues raised. The court reversed the lower court in Gougisha and declined to confirm the purported arbitral award at issue. The court affirmed the Chouest and Burdett decisions by the lower courts where those trial courts declined to confirm the purported arbitral awards. Thus, in all three cases, the Fifth Circuit declined to confirm the arbitral “awards.”
The Fifth Circuit noted that the issues it was called upon to address were “res nova,” in Louisiana. The Fifth Circuit held, inter alia, that movant must files a valid contract to arbitrate with language complying with section 9 of the FAA. Id. at pp.5-6. The Fifth Circuit held that the proof of the right to arbitrate must be filed with the court, citing section 13 of the FAA. Id. at p.6. The court noted that “...a court must independently determine whether there is a valid agreement to arbitrate. [emphasis added].” Id.
The Fifth Circuit also held that a consumer is not barred from raising a defense to the arbitration proceeding merely because ninety [90] days passed from the date of the purported award. Id. at p.7. The ninety [90] day time limitation under the FAA for moving to vacate or modify and correct the arbitral award does not apply to the consumer’s right to contest that there was no valid, written contract to arbitrate. Id. Citing the First Circuit Court of Appeals, the Louisiana court noted that there must be “evidence” of the “existence of a valid contract to arbitrate...” Id. There was no indication in the FAA of waiver of the consumer’s defense for failure to raise it within ninety [90] days. Id.
Some collectors/attorneys are seeking to confirm arbitral awards absent valid, admissible [or in some instance, “any”] evidence of an agreement to arbitrate and consider the confirmation petition as requiring the trial court to rubber-stamp the purported arbitral awards. These collectors/attorneys pretend that the court is precluded from reviewing the “arbitrator’s decision” that an agreement to arbitrate exists. Id. at p.8. The Fifth Circuit held that such a determination is subject to review by the court and the plaintiff “...must prove that the procedure has been agreed to by the parties.” Id. at p.9. The court laid out plaintiff’s burden of proof. Id. at p.10. Notably, the court stated that “[S]imply supplying the trial court with a difficult to read, and in some cases illegible, form that purports to evidence an agreement to arbitrate with no supporting evidence is insufficient. [emphasis added].” Id. [and at fn.3]. That would include bogus affidavits made without personal knowledge as to the agreement to arbitrate. There must be evidence “linking” the terms/contract to the card holders. Id.
The Gougisha, et al, decision was reached by an eight [8] Judge Panel of the Louisiana Fifth Circuit, with only two dissenting judges.
Submitted by:

Bodenheimer, Jones & Szwak, LLC


By: _________________________
David A. Szwak LBR# 21157
509 Market St., Ste. 730
United Mercantile Bank Bldg
Shreveport, Louisiana
71101
[318] 424-1400
FAX: 221-6555
ATTORNEYS FOR VINCENT L. LEGGIO, APPELLANT
THIS IS A CIVIL CASE

C E R T I F I C A T E
I hereby certify that a copy of the above and foregoing Original Brief was served upon Greg Eaton and Trey Morris, counsels for appellee, and upon Honorable David Rabb, Ad Hoc Trial Judge, Shreveport City Court, Caddo Parish, Louisiana, by first class mail properly addressed and postage pre-paid on this the ______ day of __________________, 2008.

_________________________________
OF COUNSEL COURT OF APPEAL, SECOND CIRCUIT
STATE OF LOUISIANA
DOCKET NO. 43,567-CA


CHASE BANK USA, N.A. APPELLEE

VERSUS

VINCENT L. LEGGIO APPELLANT

ON APPEAL FROM THE
SHREVEPORT CITY COURT IN
THE PARISH OF CADDO, STATE OF LOUISIANA
DOCKET NO. 2007R04188
HONORABLE DAVID RABB, AD HOC CITY COURT JUDGE

APPEAL BY DEFENDANT-APPELLANT,
VINCENT L. LEGGIO

ORDER TO ALLOW SUPPLEMENT MEMORANDUM,
ON BEHALF OF VINCENT L. LEGGIO, APPELLANT
CONSIDERING APPELLANT’S MOTION AND ATTACHMENT:

IT IS HEREBY ORDERED THAT Appellant’s motion is GRANTED and the clerk of court is directed to file and distribute Appellant’s Supplemental Memorandum and attached new case law for consideration by the Panel of this court which hears this appeal.
Shreveport, Louisiana, this the ____ day of _______________, 2008.

_____________________________
JUDGE
SECOND CIRCUIT COURT OF APPEAL
Attachments
APPEAL.CHASE.BANK.USA.v.LEGGIO.4188.MOTION.SUPPLEM.MEMO.5.5.08.pdf
(65.54 KiB) Downloaded 75 times
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association


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