Weller v. HSBC Mortgage Services, Inc.

971 F. Supp. 2d 1072, 2013 WL 4882758, 2013 U.S. Dist. LEXIS 130544
CourtDistrict Court, D. Colorado
DecidedSeptember 11, 2013
DocketCivil Case No. 13-cv-00185-REB-MJW
StatusPublished
Cited by10 cases

This text of 971 F. Supp. 2d 1072 (Weller v. HSBC Mortgage Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weller v. HSBC Mortgage Services, Inc., 971 F. Supp. 2d 1072, 2013 WL 4882758, 2013 U.S. Dist. LEXIS 130544 (D. Colo. 2013).

Opinion

ORDER RE: MOTIONS TO COMPEL ARBITRATION

BLACKBURN, District Judge.

The matters before me are (1) the Motion of Defendant HSBC Mortgage Services, Inc. To Compel Arbitration and Stay Action as to Plaintiff Jack Weller’s Claims [# 53],1 filed May 10, 2013; and (2) Defendants Assurant, Inc. and American Security Insurance Company’s Motion To Compel Arbitration and To Stay Proceedings [# 60], filed June 5, 2013.2 I grant HSBC’s motion and grant the Assu-rant defendants’ motion to compel arbitration, but deny their motion to stay the remainder of these proceedings in the interim.

I.JURISDICTION

I putatively have jurisdiction over this matter pursuant to 18 U.S.C. § 1964(a) (civil RICO) and 28 U.S.C. § 1332(d)(2) (Class Action Fairness Act).

II.STANDARD OF REVIEW

The decision whether to enforce an arbitration agreement involves a two-step inquiry. First, I must determine whether the parties agreed to arbitrate the dispute. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985); Williams v. Imhoff, 203 F.3d 758, 764 (10th Cir.2000). Second, I must consider whether any statute or policy renders the claims non-arbitrable. Mitsubishi Motors Corp., 105 S.Ct. at 3355; Williams, 203 F.3d at 764.

III.ANALYSIS

This case involves the practice of including within mortgage loan contracts a provision allowing the lender or third-party ser-vicer to “force place” insurance when the borrower fails to maintain insurance. The named plaintiffs are individuals who refinanced or purchased mortgages that are serviced by defendant HSBC Mortgage Services, Inc. (“HSBC”). Defendants As-surant, Inc. (“Assurant”), and American Security Insurance Company (“ASIC”) (collectively, “the Assurant defendants”) are insurance providers through which HSBC allegedly force places insurance and [1076]*1076to which it outsources insurance tracking, monitoring, and processing.

Plaintiffs allege that HSBC imposes excessive, unauthorized, and unnecessary flood insurance coverage on the loans it services. Of particular relevance to the instant motions to compel arbitration, plaintiff Jack Weller alleges that in December 2009, three years into the life of his loan, HSBC altered its original determination that the property did not require flood insurance. Although Weller initially purchased flood insurance on his own (under protest), he ultimately could not maintain that insurance. In January 2012, HSBC provided Weller with force-placed flood insurance. Soon thereafter, Mr. Weller contacted the Federal Emergency Management Agency (FEMA) and learned that his property was not, in fact, located in a flood hazard zone and therefore did not require flood insurance.3 Although HSBC subsequently acknowledged that Mr. Weller’s property was not required to carry flood insurance, it nevertheless refused to remove some of the charges for previously force-placed insurance.

Plaintiffs allege claims for relief against HSBC for breach of contract and breach of fiduciary duty and violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Truth in Lending Act (“TILA”), and the Colorado Consumer Protection Act (“CCPA”). The Assurant defendants are sued for unjust enrichment, aiding and abetting HSBC’s breach of fiduciary duty, and violations of RICO and TILA. Plaintiffs seek monetary, declaratory, and injunctive relief. Both defendant groups filed motions to compel Mr. Weller to arbitrate his individual claims against them.

A. MR. WELLER’S CLAIMS AGAINST HSBC

In connection with the mortgage he purchased from HSBC in November 2006, Mr. Weller executed a $200,000 Note secured by a Deed of Trust on the property as security in favor of HSBC. At the same time, Mr. Weller signed an arbitration agreement with HSBC which allows either party to demand binding arbitration of “any Claim,” defined by the agreement as follows:

“Claim” is to be given the broadest possible meaning, and shall mean any claim, dispute, or controversy, whether based upon contract, tort (intentional or otherwise), constitution, statute, common law, regulation, ordinance or equity, and whether pre-existing, present or future, including ... claims seeking relief of any type, including damages and/or injunctive, declaratory or other equitable relief, arising from or relating to Your Loan with Lender or the Loan Agreement, or any products or services offered in connection with Your Loan with Lender or the Loan Agreement, including, but not limited to, any dispute or controversy concerning, the validity or enforceability of this Arbitration Agreement, any party thereof or the entire Loan Agreement, and whether or not the Claim is subject to arbitration.

(HSBC Motion App., Exh. 3 § 1 at 1.)4 By its terms, the agreement is governed [1077]*1077by the FAA. (Id., Exh. 3 § 6 at 4.) Nevertheless, state law governs the initial inquiry whether the arbitration agreement is valid and enforceable. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995).5

Mr. Weller does not address the validity or scope of the arbitration agreement directly. Indeed, it facially appears that the arbitration agreement is valid, see Vescent, Inc. v. Prosun International, LLC, 2010 WL 4658862 at *2 (D.Colo. Nov. 9, 2010) (valid contract requires proof of “mutual assent to an exchange, between competent parties, with regard to a certain subject matter, for legal consideration”), and that Mr. Weller’s claims fall within the broad ambit of that agreement. Instead, Mr. Weller argues that the agreement is unenforceable pursuant to section 1639e(e)(3) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), Pub.L. No. 111-203, 124 Stat. 1376, codified at 15 U.S.C. § 1639c(e), and/or because it is unconscionable under Colorado state law. I examine each argument in turn.

1. APPLICABILITY OF THE DODD-FRANK ACT AMENDMENTS

The Dodd-Frank Act “imposes, among its many initiatives, the refinement and restriction of’ the FAA’s policy favoring arbitration of claims. Pezza v. Investors Capital Corp., 767 F.Supp.2d 225, 226 (D.Mass.2011) (quoting Preston v. Ferrer, 552 U.S. 346, 353, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008)).6 In particular, section 1639c(e)(3), entitled “No waiver of statutory cause of action,” provides that

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971 F. Supp. 2d 1072, 2013 WL 4882758, 2013 U.S. Dist. LEXIS 130544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weller-v-hsbc-mortgage-services-inc-cod-2013.