Opposing a car dealer’s attempt to force a matter to arbitartion

arbitration

Opposition to the defendants attempt to force arbitration

Dear Judge   xxxxx:

Please accept the following brief in lieu of a more formal brief thereof.
This litigation arises out of the plaintiff’s alleged refinance of two separate vehicles from the defendant, CAR DEALER. (See Exhibit A: Complaint, Count 1, paragraph 1). The vehicles involved were a 2010 Nissan Pathfinder and a 2010 Nissan Sentra, two separate vehicles, two separate transactions. (See Exhibit A). The plaintiff has alleged that these two separate and distinct transactions were subject to inappropriate conduct by the defendant and the plaintiff has sustained damages in each specific transaction.
The defendant relies upon the attached arbitration clause that states:

“The Parties, customer and dealer, identified below, hereinafter collectively *** agreed to settle by arbitration any claim, dispute or controversy, including all federal and state statutory or non-statutory claims that may arise out of the sale related to the finance and purchase and re lease of the vehicle identified below.” See Exhibit B, arbitration agreement At the bottom of the Arbitration Agreement, it lists the vehicle with the last five numbers in the vehicle identification number as 12984. It is apparent, that the Arbitration Agreement identified by the defendant applies to the plaintiff’s transaction for the used 2010 Nissan Sentra, vehicle identification no. 12984. Thus, as such, even if the Court were willing to assume there is a valid Arbitration Agreement and it is enforceable, the defendant should be bound by the terms of the agreement and have to arbitrate disputes related to the Nissan Sentra.

The defendant would not be able to rely upon the Arbitration Agreement for the Nissan Sentra to compel arbitration for the 2010 Nissan Pathfinder. See exhibit C, refinance agreement for 2010 Sentra. The Supreme Court recently addressed the issue of enforceability and scope of Arbitration Agreements in Hirsch v. Amper Financial Services. (See Exhibit D), where the Court held the following

However, the preference for arbitration “is not without limits.” Garfinkel, supra, 168 N.J. at 132, 773 A.2d 665. A court must first apply “state contract-law principles … [to determine] whether a valid agreement to arbitrate exists.” Hojnowski, supra, 187 N.J. at 342, 901 A.2d 381. This preliminary question, commonly referred to as arbitrability, underscores the fundamental principle that a party must agree to submit to arbitration. Hirsch v. Amper Fin. Servs., LLC, A-9 SEPTTERM 2012, 2013 WL 4005282 (N.J. Aug. 7, 2013)
The Court held that after the finding of the existence of an arbitration clause, the Court then must evaluate whether the particular claims at issue fall within the clause of scope. A court must look to the language of the arbitration clause to establish his boundaries. Importantly, a court may not rewrite a contract to broaden the scope of arbitration. Hirsch v. Amper Fin. Servs., LLC, A-9 SEPTTERM 2012, 2013 WL 4005282 (N.J. Aug. 7, 2013)

In the current case, as mandated by New Jersey Supreme Court, the defendant dealership cannot enforce an Arbitration Agreement which is non-existent with regard to the purchase of the 2010 Nissan Pathfinder. Defendant dealership has attached an attempt to enforce an Arbitration Agreement with regard to the 2010 Nissan Sentra for which an Arbitration Agreement exists. There is no Arbitration Agreement for the 2010 Nissan Sentra and as such the defendant’s reliance upon the arbitration clause for both transactions is unwarranted and not supported with law. Thus, in the current case, the defendant’s motion to compel arbitration with regard to the purchase of the Pathfinder should be denied and the defendant’s answer should be stricken for failure to provide discovery as required under the rules. The plaintiff has filed a corresponding motion to dismiss for failure to comply with discovery.

The defendant’s motion to compel arbitration should be denied as to the transaction covered by the enclosed Arbitration Agreement because there is not a certification that said agreement was completely handed to the plaintiff at the time of the transaction. See NJSA 56:8-2.2. The plaintiff has submitted a certification in support of the application to oppose the motion to compel arbitration that he never received a copy of the Arbitration Agreement. The New Jersey Consumer provides that it is illegal and unlawful for a person not to receive a copy of the consumer contract. See N.J.S.A. 56:8-2.22. Thus, since the defendant has failed to submit appropriate certification and the plaintiff has submitted a certification that no such copy of a transaction was ever received by the plaintiff as part of refinancing of the vehicle, the defendant’s motion should be denied. The defendant is required to provide the consumer with a full and accurate copy of the document presented for signature. In the current case, the plaintiff has submitted certification that this was not done and as such the contract relied upon by the defendant is unenforceable.
In conclusion, the defendant’s motion to compel arbitration on both transactions should be denied and their answers should be stricken for failure to provide discovery.