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Tina Sorge v. Cavalry Portfolio Services

October 4, 2011

TINA SORGE, PLAINTIFF,
v.
CAVALRY PORTFOLIO SERVICES, LLC, A DELAWARE LIMITED LIABILITY COMPANY, CAVALRY SPV I, LLC, A DELAWARE LIMITED LIABILITY COMPANY, AND LAW OFFICE OF KEITH S. SHINDLER, LTD., D/B/A THE SHINDLER LAW FIRM, AN ILLINOIS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

Before the Court is defendants' -- Cavalry Portfolio Services, LLC, Cavalry SPV I, LLC, and the Law Office of Keith S. Shindler, d/b/a The Shindler Law Firm (collectively defendants unless context dictates otherwise) -- motion to compel arbitration and stay proceedings pending arbitration (Doc. 11). Plaintiff, Tina Sorge, objects to the motion, contending that defendants have waived their rights to arbitration by suing plaintiff in a state court action and by making an offer of judgment pursuant to Federal Rule of Civil Procedure 68 in this case. Moreover, plaintiff contends that there is nothing to support that defendants are entitled to enforce the arbitration agreement. For the reasons that follow, the Court grants the defendants' motion to compel arbitration and stay proceedings pending arbitration (Doc. 11) .

I. Background

On June 19, 2008, plaintiff entered into a disclosure statement, note, and security agreement (the "security agreement") with Citifinancial Services, Inc. ("Citifinancial"), whereby she agreed to borrow a certain amount of money from Citifinancial and pay that money back plus interest in monthly installments. Upon entering into that agreement, plaintiff also entered into an arbitration agreement which became a part of the security agreement. The arbitration agreement contained the following relevant provisions:

" ARBITRATION AGREEMENT THIS ARBITRATION AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN BORROWER AND CERTAIN OTHER PERSONS ON THE ONE HAND AND LENDER AND CERTAIN OTHER PERSONS ARE ENTITIES ON THE OTHER HAND, EXCEPT THOSE SPECIFIED BELOW, WILL BE RESOLVED BY MANDATORY, BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS (EXCEPT FOR MATTERS THAT ARE EXCLUDED FROM ARBITRATION AS SPECIFIED BELOW). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. . . . . . . . You and We agree that either You or We have an absolute right to demand that any Claim be submitted to an arbitrator in accordance with this Arbitration Agreement. If either You or We file a lawsuit, a counterclaim, or other action in court, the other party has the absolute right to demand arbitration following the filing of such action. . . . 'Claim' means any case, controversy, dispute, tort, disagreement, lawsuit, or claim now or hereafter existing between You and Us. . . .

. . . . . . . We or You may bring an action, including a summary or expedited proceeding, to compel arbitration of any Claim, and/or to stay the litigation of any Claim pending arbitration in any court having jurisdiction. Such action may be brought at any time, even if a Claim is part of a lawsuit, up until the entry of a final judgment. .

Claims Excluded from Arbitration. Neither You nor We may require the other to arbitrate the following types of matters: . . . .

* Any Claim where all parties collectively (including multiple named parties) seek monetary relief in the aggregate of $15,000.00 or less in total relief . . . . In the event that any party fails to specify the amount being sought for any relief, or any form or component of relief, the amount being sought shall, for purposes of this exclusion, be deemed to exceed $15,000.00, unless the matter remains in and subject to the jurisdiction of the small claims court.

Participating in a lawsuit or seeking enforcement of this section by a court shall not waive the right to arbitrate any other Claim. . . .

Special Acknowledgments. You understand and acknowledge by signing Your name in this Agreement that (i) a court and/or jury will not hear or decide any Claim governed by this Agreement . . . .

READ THE ABOVE ARBITRATION AGREEMENT CAREFULLY, IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN REDRESS THROUGH COURT ACTION. BY SIGNING BELOW, YOU AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT AND ACKNOWLEDGE THAT THIS DOCUMENT DID NOT CONTAIN ANY BLANK SPACES WHEN YOU SINGED IT."

Plaintiff initialed the first page of the arbitration agreement and signed the second page.

On October 14, 2008, Citifinancial filed a complaint against plaintiff in Illinois state court, specifically Madison County circuit court, alleging that plaintiff had failed to make the required monthly payments required by the security agreement. Citifinancial alleged that as of October 7, 2008, plaintiff owed $10,936.00 in principle, plus interest, legal expenses, and attorney fees. On March 6, 2009, the circuit court entered an order, granting summary judgment in favor of Citifinancial in the amount $11,175.27 plus $500.00 for attorney fees and costs.

On December 22, 2009, Citifinancial entered into a bill of sale, assignment, and assumption agreement with Cavalry SPV I, LLC, whereby the parties agreed that "[f]or value received and subject to the terms and conditions of the Purchase and Sale Agreement dated June 25, 2009, between [Cavalry SPV I, LLC] and [Citifinanical] (the 'Agreement'), [Citifinancial] does hereby transfer, sell, assign, convey, grant, bargain, set over and deliver to [Cavalry SPV I, LLC], and to [Cavlary's SPV I, LLC's] successors and assigns, all of [Citifinancial's] rights, title and interest in and to the Accounts described in Section 1.2 of the Agreement." Cavalry SPV I, ...


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