United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE UNITED STATES SENIOR DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Compel Arbitration (Doc. 5). Plaintiff has responded (Doc. 7)
and following an Order calling for supplemental briefing
(Doc. 8) the parties have submitted supplemental briefs
(Docs. 12, 15). The matter is therefore ripe for review.
events caused damage to Plaintiff Bernard Kissinger's
residence in April 2017. (Doc. 1-1 at 3). Plaintiff
contracted with Defendant Perfect Choice Exteriors, LLC, to
repair the siding and roofing of his home by means of the
Siding Contract. (Doc. 1-1 at 3). Plaintiff alleges an
agent of Defendant Perfect Choice represented to him that
Defendant Perfect Choice would be able to convince
Plaintiff's insurance company to cover siding for a side
of the house and a moisture barrier for the roof not included
in the amount the insurance company approved to repair the
damage initially. (Doc. 1-1 at 3-4). The work was completed
in July 2018. (Doc. 1-1 at 4). According to Plaintiff, the
total cost was $25, 980.00, of which he paid $7, 000.00
initially, $10, 500.00 on August 20, 2018, and $2, 000 on
August 29, 2018, leaving a balance of $6, 480.00 which he was
unable to pay. (Doc. 1-1 at 4). His insurance did not aid in
the increased payments.
Complaint alleges Defendant Perfect Choice contacted
Plaintiff on September 10, 2018, and informed him it needed
further time to deal with his insurance. (Doc. 1-1 at 4-5).
Defendant Perfect Choice then allegedly presented Plaintiff
with the Home Improvement Installment Contract, telling him
he needed to sign the contract to give Defendant Perfect
Choice sixty more days to negotiate with the insurance
company; Plaintiff alleges he was not informed it was a loan
document. (Doc. 1-1 at 5). The completed Home Improvement
Installment Contract states Plaintiff had purchased $8, 480
of goods and services, and had paid a down payment of $2, 000
with $6, 480.00 outstanding. (Doc. 6-1 at 7). He was provided
this amount on credit, but would pay it back in installments,
with an additional 16.99%, for a total of $8, 973.60 in
addition to the already paid $2, 000. (Doc. 6-1 at 7). It
further states the work would occur between September 15,
2018 and September 18, 2019, with a delivery of goods on
September 10, 2018. (Doc. 6-1 at 7). All finance charges
would be waived if full payment was made within 90 days.
(Doc. 6-1 at 8). The Home Improvement Installment Contract
contains an arbitration clause. (Doc. 6-1 at 10).
amounts in the Home Improvement Installment Contract-a total
of $8, 480 with $2, 000 as a down payment-bear some relation
to the amounts remaining on the Siding Contract; after August
20, 2018, Plaintiff had $8, 480 remaining in payments and he
paid $2, 000 on August 29, 2018, according to his
allegations. But the amounts are also reflected in the
Roofing Contract, which purports to have been executed on
August 23, 2018, for the installation of window trim. (Doc.
6-1 at 5). The Roofing Contract purports to be for $8, 480
total with $2, 000 due as a down payment, although that
number purports to be a 40% down payment, with 30% due on the
date work starts and the final 30% due on the date work is
completed; on both lines, $6, 480 is written. (Doc. 6-1 at
March 6, 2019, Plaintiff filed this action in state court
alleging causes of action under the Illinois Consumer Fraud
Act, 815 ILCS 505/1 et seq., fraud, and the
Racketeer Influenced Corrupt Organizations Act, 18 U.S.C.
§ 1961 et seq. (Doc. 1-1 at 1-10). Defendant
Mariner Finance then removed the action to this Court. (Doc.
Federal Arbitration Act requires arbitration agreements be
placed “on an equal footing with other contracts”
and enforced “according to their terms”;
nonetheless, they may be invalidated by generally applicable
contract defenses. Rent-A-Center, W., Inc. v.
Jackson, 561 U.S. 63, 67 (2010); 9 U.S.C. § 2. A
party seeking to enforce an arbitration clause may request a
stay of an action pending arbitration and an order compelling
arbitration. 9 U.S.C. §§ 3-4.
division of labor between courts and arbitrators is a
perennial question in cases involving arbitration
clauses.” Janiga v. Questar Capital Corp., 615
F.3d 735, 741 (7th Cir. 2010). Courts evaluate only the
limited question of whether the arbitration agreement is
valid, while a challenge to the whole of the contract is for
the arbitrator to decide. Id. However, “the
court must decide whether a contract exists before it decides
whether to stay an action and order arbitration.”
Id. at 742. “If there is no contract there is
to be no forced arbitration.” Gibson v.
Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130
(7th Cir. 1997). State law governing the formation of
contracts is binding with regard to the question of contract
raises two issues with enforcing the arbitration clause.
First, Plaintiff argues the contract containing an
arbitration clause is not enforceable for lack of
consideration. Second, he intimates there are issues with the
signature and initials on the Home Improvement Installment
Contract and suggests Defendant Mariner Finance must meet the
burden of showing Plaintiff signed and initialed it.
Lack of Consideration
Plaintiff's view, the alleged benefit to Plaintiff was
the home improvement, which had been completed prior to the
signing of the Home Improvement Installment Contract. (Doc. 7
at 3). But his argument implicates issues for ...