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Respondent's Brief, Atlantic Credit & Finance V. Courtney Stacy, No. 17-0615

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Respondent's Brief, Atlantic Credit & Finance V. Courtney Stacy, No. 17-0615 , . '1', \. ~' 'y IN THE SUPREME COURT OF ApPEALS OF WEST VmGINIA DOCKET No. 17-0615 ATLANTIC CREDIT AND Appeal from an Order of the Circuit FINANCE SPECIAL Court ofWyoming County, FINANCE UNIT, LLC., Civil Action No. 16-C-21 r:::rE=-="";'!;D""""""""";:[1~""=====-===-=;;' PLAINTIFF/COUNTERCLAIM DEFENDANT BELOW, r NOV 27 201~~! PETITIONER, EDY1 hE r,iASH G.l;;SEH. ':L~RK SUPREi.,1E COURT OF ;'i-lPEALS v. ,,=====O~F-I.;~~.'r:.'-::! VT:q~G!;;;:;;,,\jA~~ COURTNEYR.STACY, DEFENDANT/COUNTERCLAIM PLAINTIFF BELOW, RESPONDENT • Brief on Behalf of the Respondent Troy N. Giatras, Esq. (WVSB# 5602) Matthew Stonestreet, Esq. (WVSB# 11398) THE GIATRAS LAW FIRM, PLLC 118 Capital St., Suite 400 Charleston, WV 25301 (304) 343-2900 Ralph C. Young, Esq. (WVSB# 4176) Steven R. Broadwater, Jr., Esq. (WVSB# 11355) HAMILTON, BURGESS, YOUNG & POLLARD, PLLC PO Box 959 Fayetteville, WV 25840 (304) 574-2727 Counselfor Respondent TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................ .iii STATEMENT OF THE CASE ...............................................................1 STATEMENT REGARDING ORAL ARGU1v1E.NT AND DECISION ................................................ ,.............5 S~~ OF ARG~NT................................................................5 ARGU1v1E.NT...... '" ..............................................'.............................6 A. Petitioner Failed to Prove the Existence of a Valid and Enforceable Agreement to Arbitrate Between the Parties ......................6 i. Petitioner Fails to Carry its Evidentiary Burden Under Rule 56 ofthe WVRC and Rule 803 ofthe WVRE to Prove the Existence of a Valid and Enforceable Contract ...............................................8 a. JodiAnderson Lacks Sufficient Personal Knowledge to Satisfy Rule 56(e) ............................................................. 10 b. The Anderson Affidavit Fails to Establish that Anderson is a "Qualified Witness" Competent to Testify to the Matters stated in his Affidavit. .........................................................11 c. Petitioner's Affidavits are Replete with Errors and Lack Trustworthiness.................................................................15 ii. Even ifPetitioner's Failure to Sufficiently carry its Burden of Proof to Establish the Existence of a Valid arid'Enforceable Contract Between Synchrony Bank and Respondent is Ignored, Arbitration Still Does Not apply Because the Synchrony Arbitration Clause is a Non-Transferable Clause ...................................................21 111. Even ifit is Assumed, Arguendo, that a Valid and Enforceable Agreement to Arbitrate Existed Between Respondent and Synchrony, and that the Arbitration Clause Could Apply to an Assignee of Synchrony, Petitioner is Nonetheless Barred from Enforcing the Alleged Arbitration Provision Because Petitioner has Failed to Prove that Such a Right to Force Arbitration was Purchased from Synchrony Bank ...................25 a. Petitioner Failed to Prove That it Purchased a Debt Owed by Mr. Stacy...................................................................26 b. Likewise, Petitioner has failed to Prove It Purchased Anything More From Synchrony Other than the Right to Collect Receivables ........................................................27 B. The Circuit Court did not Commit Reversible Error in Ruling that Petitioner Waived any Right It May Have had to Arbitrate .......................28 C. Although the Circuit Court Did Not Need to Reach the Conclusion that the Alleged Agreement Was Unconscionable, the Circuit Court's Analysis Nonetheless Fairly Applied the Law and Does Not Constitute Reversible Error .............................................................33 D. The Circuit Court's Finding that Petitioner Failed to Prove the Existence ofan Arbitration Agreement Obviated the Need to Address Petitioner's Incorrect Argument Regarding the Appllcable Law to Interpret the Contract....................................................................................36 E. Petitioner's Requests to Interpret a Contract that it Failed to Prove Does Not Constitute Reversible Error ................................................38 CONCLUSION .....................................................................................40 CERTIFICATE OF SERVICE ...............................................................41 11 27 : TABLE OF AUTHORITIES CASES Am. Gen. Fin. v. Griffin, 2013 WL 3422900, at *7 (Ohio Ct. App. July 3, 2014) .......................32 Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522,526 (2d Cir. 2011) .................................................6 Ara v. Erie Ins. Co., 387 S.E.2d 320, 323 (W. Va. 1989) .............................................38 Arnold v. United Companies Lending Corp., 204 W. Va. 229,511 S.B.2d 854 (1998) .........................................36 AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) ................................................................37 Barbagallo v. Niagra Credit Solutions, Inc., 2012 WL 6478956, at *3 (D. Md. Dec. 4,2012) .............................32 Bazemore v. Jefferson Capital Systems, LLC, 827F.3d 1325, (11 th Cir. 2016) .......................................... 18-21,25 Beall v. Morgantown & Kingwood R. Co., 118 W.Va. 289, 190 S.B. 333, 336 (1937) .....................................30 Blackburn v. Citifinancial, Inc., 2007 WL 927222 (Ohio Ct. App. Mar. 12,2007) .............................32 Bolo Corp. v. Homes & Son Constr. Co., 464 P.2d 788, 790 (Ariz. 1970) ...................................................32 Brown ex rel.-Brown v. Genesis Healthcare Corp. ("Brown I"), 724 S.E.2d 250,261 (W.Va. 2011) ...........................................34-35 Brown v. Genesis Healthcare Corp.,' 729 S.E.2d217, 228 (W. Va. 2012) (BrownII} ................................35 .. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,443 (2006) .........................................................37 111 '. Buford v. Palisades Collection, L.L. C., 552 F. Supp. 2d 800, 809 (N.D. Ill. 2008) ................................. 16,24 Bybee v. Adullah, 189 P.3d 40 (Utah 2008) ........................................................25 Cabinetree ofWise., Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388,391 (7th Cir. 1995) ...............................................30 Cain v. Midland Funding, LLC, 452 Md. 141,163,156 A.3d 807,820 (2017) ..................... :.........29 Checksmart v. Morgan, 2003 WL 125130, at *4 (Ohio Ct. App. Jan 162003)......................32 Cf Williams v. MetroPCS Wireless, Inc., No. 09-22890-CIV, 2010 WL 62605, at *10 (S.D. Fla. Jan. 5,2010).. 19,25 Citibank, N.A. v. Perry, 238 W. Va. 662, 797 S.E.2d 803 (2016).........................................33 Crawford v. Snyder, ' 228 W. Va. 304, 311-12, 719 S.E.2d 774, 781-82 (2011)................13,14 Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281, 737 S.E.2d 550 (2012) .........................................36 Earl T. Browder, Inc. v. Cnty. Court ofWebster Cnty., 143 W.Va. 406, 412, 102 S.E.2d 425, 430 (1958) .............................31 Erdman Co. V. Phoenix Land & Acquisition, L.L. c., 650 F. 3d 1115 (8th Cir. 2011) ....................................................32 Finish Line, Inc. v. Patrone, ' No. 20 13-0hio-5527 (Ohio Ct. App. Dec. 13,2013)..........................32 Fox v. Nationwide Credit, Inc., 2010 WL 3420172 (N.D. Ill. 'Aug. 25, 2010) ...............................23-25 Frankel v. Citicorp Ins. Services, Inc., 913 N.Y.S.2d 254 (App. Div. 2010) ..............................................& IV , . Gelow v. Cent. Pac. Mortg. Corp., 560 F. Supp. 2d 972, 978 (E.D. Cal. 2008) ......................................7 Green Tree Financial Corp. v. Bazzle, 539 U.S. 444,452 (2003).........................................................38 Green Tree Servicing, L.L. c., v. Hill, 307 P.3d 347 (Okla. Civ. App. 2013) ............................................32 Hoffman v. Wheeling Sav. & LoanAss'n, 133 W.Va. 694, 713 57 S.E.2d 725, 735 (1950) ..............................30 Hoskins v. C&P Tel. Co. ofW Va., 169 W. Va. 397, 400, 287 S.E.2d 513,515 (1982) ............................13 House Dev., Inc. v. Integrus Architecture, P.S., 272 P3d 289(Wash. Ct. App. 2012) .............................................32 In re Advance EMS Services, Inc., 2009 WL 401620, at *3 (Tex. App. Feb. 12,2009) .............................8 Kenyon Int 'I Emergency Services, Inc. v. Malcom, 2010 WL 2303328(S.D. Tex. June 7, 2010) .....................................32 Kirk v. Credit Acceptanc;e Corp., 829 N.W.2d 522, 533 (Wis. ct. App. 2013) ....................................33 Lawson v. Life ofthe S. Ins. Co., 648 F.3d 1166, 1170 (lith Cir. 2011) ............................................6 Levonas v. Regency Heritage NurSing &·Rehab. Ctr., L.L.C., 2013 WL 4554509 (N.l Super. Ct. Appt. Div. Aug. 29, 2013) .............32 Liberty Credit Services Assignee v. Yonker, 2013 WL 5221219, at *4 (Ohio Ct. App. Sept. 16,2013) ................17,32 Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Piece, Fenner & Smith, Inc., 626 F.3d 156, 160 (2d Cir. 2010) ...............................................32 Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201 (2012) ............................................................38 v Matute v. Main St. Acquisition Corp., 2012 WL 4513420 (S.D. Fla. Oct. 2,2012).......................................16 . McGinnis v. John C. Bonewicz, P. c., 2012 WL 604430, at *3-4 (C.D. Ill. Feb. 2, 2012)
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