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COA: arbitration provision null and void

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The Indiana Court of Appeals has affirmed the denial of a payday loan company’s motion to compel arbitration in a lawsuit filed by a customer. The COA relied on a nearly identical case involving the same plaintiff in which another appellate panel found that since the arbitrator named in the agreement is no longer available, the arbitration provision is null and void on grounds of impossibility.

In Apex 1 Processing, Inc. v. Akeala Edwards, on Behalf of Herself and Others Similarly Situated, No. 49A05-1103-PL-85, Akeala Edwards filed a class-action lawsuit against Apex 1 Processing Inc., alleging it engaged in unfair trade practices. She got a payday loan through Apex’s company doing business as Paycheck Today, and she was charged $360 in finance charges on her $300 loan. The suit has not yet been certified as a class action.

Apex sought to compel Edwards to arbitrate her claim individually based on a provision in the loan agreement. The National Arbitration Forum was named as the arbitrator to be used, but the NAF has been ordered to not participate in any arbitration of consumer disputes after July 2009 based on a suit filed by the Minnesota attorney general.

This suit is similar to one Edwards filed against Geneva-Roth Capital Inc. An appellate panel in November found that the arbitration provision in that suit was null and void on the grounds of impossibility because NAF is not longer available to arbitrate. At the time, the issue was one of first impression in Indiana. In Geneva-Roth Capital v. Edwards, No. 49A02-1101-PL-43, the COA also found that 9 U.S.C.A. Section 5 of the Federal Arbitration Act does not oblige the trial court to appoint a substitute arbitrator.

“The language of the Apex contract, like that in the Geneva-Roth contract, provides claims ‘shall be resolved by binding . . . arbitration by and under the Code of Procedure of [NAF],’” wrote Judge Melissa May. “Thus, the identification of NAF as the arbitrator was integral to the contract, and the arbitration provision fails.”

The panel in the instant case adopted the reasoning in Geneva-Roth and affirmed the denial of Apex 1’s motion to compel arbitration.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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