Cottonwood Financial, Ltd. v. Estes

2012 WI App 12, 810 N.W.2d 852, 339 Wis. 2d 472, 2012 WL 265716, 2012 Wisc. App. LEXIS 73
Wisconsin Supreme Court·Decided January 31, 2012·No. No. 2009AP760·Published·Cited by 4 cases

Opinion

PETERSON, J.

¶ 1. Darcie Estes appeals a judgment and an order confirming an arbitration award and an order compelling arbitration. Estes argues that the arbitration agreement was unconscionable and, therefore, unenforceable. In an opinion dated May 25, 2010, we concluded that the arbitration agreement was substantively unconscionable because it required Estes to waive her ability to proceed as part of a class. We therefore reversed and remanded for evidentiary findings on whether the agreement was also procedurally unconscionable.

¶ 2. In October 2011, the supreme court granted review, vacated our decision, and remanded for reconsideration in light of the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion, 563 U.S. _, 131 S. Ct. 1740 (2011). In Concepcion, 131 S. Ct. at 1746, 1753, the Supreme Court held that a state law that "classif[ied] most collective-arbitration waivers in consumer contracts as unconscionable[,]" and thus unenforceable, was preempted by the Federal Arbitration Act (FAA). In light of Concepcion, the classwide arbitration waiver in Estes's arbitration agreement is enforceable and is not substantively unconscionable. We [478]*478also reject Estes's arguments that the arbitration agreement is substantively unconscionable in several other ways. Accordingly, we affirm the circuit court's judgment and order confirming the arbitration award and order compelling arbitration.

BACKGROUND

¶ 3. Estes took out a number of loans from Cottonwood Financial, LTD's The Cash Store, a payday lender. Each loan agreement contained an arbitration provision which stated that, with the exception of small claims matters, all disputes between the parties would be resolved by binding arbitration. Estes ultimately defaulted on the loans, and Cottonwood filed a small claims action to recover the outstanding balance. Estes counterclaimed, alleging violations of the Wisconsin Consumer Act, and as a result the case was converted to a large claims action.

¶ 4. Cottonwood then moved for an order staying the circuit court proceedings and compelling arbitration. The circuit court granted Cottonwood's motion, rejecting Estes's argument that the arbitration provision was unconscionable. The court later entered a judgment and order confirming an arbitration award against Estes, and Estes appealed.

DISCUSSION

¶ 5. "Unconscionability is an amorphous concept that evades precise definition." Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, ¶ 31, 290 Wis. 2d 514, 714 N.W.2d 155. It is a determination to be made in light of a variety of factors not easily unifiable into a [479]*479formula. Id. The underlying principle is one of prevention of oppression or unfair surprise and not of disturbance of allocation of risks because of superior bargaining power. Id., ¶ 32. "Unconscionability has often been described as the absence of meaningful choice on the part of one of the parties, together with contract terms that are unreasonably favorable to the other party." Id.

¶ 6. The unconscionability analysis is as follows:

A determination of unconscionability requires a mixture of both procedural and substantive unconscionability that is analyzed on a case-by-case basis. The more substantive unconscionability present, the less procedural unconscionability is required, and vice versa. A court will weigh all the elements of unconscionability and may conclude unconscionability exists because of the combined quantum of procedural and substantive unconscionability....
Determining whether procedural unconscionability exists requires examining factors that bear upon the formation of the contract.... The factors to be considered include, but are not limited to, age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms would have been permitted by the drafting party, and whether there were alternative providers of the subject matter of the contract.
Substantive unconscionability addresses the fairness and reasonableness of the contract provision subject to challenge....
No single, precise definition of substantive unconscionability can be articulated. Substantive unconscionability refers to whether the terms of a contract are [480]*480unreasonably favorable to the more powerful party. The analysis of substantive unconscionability requires looking at the contract terms and determining whether the terms are "commercially reasonable," that is, whether the terms lie outside the limits of what is reasonable or acceptable.

Id., ¶¶ 33-36 (footnotes omitted).

¶ 7. Whether, under a given set of facts, a contract provision is unconscionable is a question of law that a reviewing court determines independently of the circuit court. Id., ¶ 25. Here, because the circuit court concluded the arbitration provision was not substantively unconscionable, it did not address procedural unconscionability. See Aul v. Golden Rule Ins. Co., 2007 WI App 165, ¶ 26, 304 Wis. 2d 227, 737 N.W.2d 24 (both components of unconscionability required to render a contract provision unenforceable). Likewise, if we agree there was no substantive unconscionability we may affirm without addressing procedural unconscionability.

¶ 8. Estes argues the loan agreements' arbitration provision is substantively unconscionable because it precludes her from proceeding as a member of a class. The arbitration provision states:

You are waiving your right to serve as a representative, as a private attorney general, or in any other representative capacity, and/or to participate as a member of a class of claimants, in any lawsuit filed against us ... . [A]ll disputes including any representative claims against us . .. shall be resolved by binding arbitration only on an individual basis with you. Therefore, the arbitrator shall not conduct class arbitration; that is, the arbitrator shall not allow you to serve as a repre[481]*481sentative, as a private attorney general, or in any other representative capacity for others in the arbitration.

(Capitalization and bolding omitted; formatting altered). Estes contends this provision is substantively unconscionable because it violates the Wisconsin Consumer Act. See Wis. Stat. § 421.106(1) (stating that "a customer may not waive or agree to forego rights or benefits under" the Consumer Act); Wis. Stat. § 426.110(1) (recognizing a consumer's right to "bring a civil action on behalf of himself or herself and all persons similarly situated").1

¶ 9. The United States Supreme Court addressed a similar issue in Concepcion, 131 S. Ct. 1740. There, the Court considered "whether the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures." Id. at 1744.

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Cottonwood Financial, Ltd. v. Estes, 2012 WI App 12, 810 N.W.2d 852, 339 Wis. 2d 472, 2012 WL 265716, 2012 Wisc. App. LEXIS 73 (Wis. 2012).

2012 WI App 12 (Cottonwood Financial, Ltd. v. Estes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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