United States District Court, S.D. West Virginia, Huntington Division
JEFFERY WARE, individually and in his capacity as Administrator of the Estate of LAURANNA WARE, Plaintiff,
SANTANDER CONSUMER USA, INC., a Texas corporation, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is Defendant Santander Consumer USA
Inc.'s Motion for Partial Summary Judgment (ECF No. 62),
and a Motion to File Surreply by Plaintiff Jeffrey Ware,
Individually and in his capacity as Administrator of the
Estate of Lauranna Ware. ECF No. 89. For reasons appearing
before the Court, the Court GRANTS
Plaintiff's motion and, for the following reasons, the
Court GRANTS, IN PART, Defendant's
FACTUAL AND PROCEDUREAL BACKGROUND
action was filed by Plaintiff and his mother Lauranna Ware on
April 9, 2015. In the Complaint, Plaintiff asserts he and
his mother obtained a $19, 000 loan to purchase a vehicle
around September 2007 from Citifinancal Auto Credit, Inc.
(Citifinancial). Defendant later acquired the loan and the
servicing rights from Citifinancial in or around 2010. In the
Complaint, Plaintiff claims, inter alia, that
Defendant repeatedly charged illegal late fees in excess of
$15.00 and charged fees within the ten-day statutory grace
Defendant filed a Motion to Dismiss or to Compel Arbitration
pursuant to 9 U.S.C. § 3. ECF No. 7. In its motion,
Defendant asserted Plaintiff was bound by an arbitration
provision contained in a Modification Agreement for the loan.
However, this Court denied Defendant's motion on December
10, 2015, finding Defendant failed to establish the parties
ever entered into the Modification Agreement. Ware v.
Santander Consumer USA, Inc., Civ. Act. No. 3:15-4285,
2015 WL 8492762 (Dec. 10, 2015).
current motion, Defendant now argues the original loan
documents contained an enforceable arbitration agreement.
Defendant concedes, however, that the documents containing
the arbitration provision cannot be found by either party.
Nevertheless, Defendant argues it can prove through extrinsic
evidence that the original loan documents contained an
arbitration provision. In support, Defendant attached a
Declaration of James Hart. ECF No. 62-10.
Declaration, Mr. Hart states he has worked for Defendant
since 2010 and currently serves as the Senior Vice President
of Call Center Operations. Prior to that time, he was
employed by Citifinancial, and he worked as its Director of
Operations. Based upon his experience, Mr. Hart asserts he is
familiar with Citifinancial's records and practices
during the time Plaintiff originated his loan. He further
states that, based upon his personal knowledge and review of
Defendant's business records relating to Plaintiff's
loan and other loans made in West Virginia, it was
Citifinancial's regular practice to use “Form
Contracts” containing Note and Security Agreements. Mr.
Hart contends that the Form Contracts given to consumers
contained “substantially identical arbitration
provisions, class action waivers, and choice of law
provisions selecting either Texas or Nevada law.”
Decl. of James Hart, at ¶ 8.
upon his experience and review of the documents related to
Plaintiff's loan, Mr. Hart asserts Plaintiff and his
mother “would have had to execute a Form Contract as
part of the process for obtaining their loan, and that the
Form Contract would have included an arbitration provision,
class action waiver, and Nevada choice of law
provision.” Id. at ¶12. According to Mr.
Hart, Plaintiff's Form Contract would have contained the
following arbitration provision:
ARBITRATION: This arbitration provision significantly affects
your rights in any claim or dispute with us. Please read this
arbitration provision carefully, before signing and
negotiation your Check.
Either you or we may choose to have any dispute between you
and us, except as provided below, decided by arbitration. If
arbitration is chosen, you and we will each give up the right
to a trial by the court and/or a jury trial. If arbitration
is chosen, you may not serve as a class representative or
participate as a class member in any class action against any
party entitled to compel arbitration under this provision.
Any claim or dispute, except as provided below, whether in
contract, tort or otherwise (including, without limitation,
interpretation and the scope of this provision, the
arbitrability of any issue and matters relating to the
consummation, servicing, collection or enforcement of this
loan) between you and us or our employees, agents, successors
or assigns which arise out of or relate to this loan or any
resulting transaction or relationship including any such
relationship with third parties who do not sign the Check
shall, at your or our election (or the election of any such
third party) be resolved by neutral binding arbitration and
not by court action. Any claim or dispute is to be arbitrated
on an individual basis and not as a class action and you
expressly waive rights you may have to arbitrate a class
action. The Federal Arbitration Act governs this arbitration
. . . This Arbitration provision is binding upon and inures
to the benefit of our respective heirs, successors and
Id. at ¶13 (ellipsis in Mr. Hart's
an executed copy of the Note and Security Agreement cannot be
located in Plaintiff's case, Defendant attached a letter
it sent to Plaintiff and his mother congratulating them on
being approved for their auto loan. The letter details the
amount of the loan, the term of the loan, and the interest
rate. Ltr. from Citifinancial to Lauranna and Jeffery
Ware (June 29, 2007), ECF No. 62-2. The letter also
specifically provides that a borrower's
“endorsement of the Check indicates agreement with the
Note and Security Agreement included herein. . . . [and the]
Check will not be activated until all of the Conditions for
Approval set forth in this package have been met and
verified. . . . Citifinancial Auto will only activate one
Check, subject to the terms and conditions stated.”
Id. In addition, Defendant submitted a copy of the
Check used to pay for the vehicle. The front of the Check
specifically states, in part, that “[b]y endorsing,
using, or accepting the proceeds of this Check, I, the
Borrower(s) . . . agrees to the terms of the Note &
Security Agreement (including . . . the Arbitration
Provision)[.]” Check, ECF No. 62-3.
Immediately beside this language, appears the signatures of
Plaintiff and his mother. Id. Defendant also
attached to its motion the Security Agreement for State
Specific Titling Requirements, which Plaintiff and his mother
both signed. This document ...