Sylvia Carson v. LendingTree LLC

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:08-md-01976-FDW Copies to all parties and the district court/agency. [998724817].. [11-1056]

Appeal: 11-1056

Document: 26

Date Filed: 11/17/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1056

SYLVIA CARSON, Case No. 3:08-cv-247,
Plaintiff – Appellant,
and
CONSTANCE SPINOZZI, Case No. 3:08cv229; ANGELA MITCHELL,
Case No. 3:08cv303; EUGENE MILLER, JR., Case No. 3:08cv2077;
MARVIN GARCIA, Case No. 3:08cv2078; AMY BERCAW, Case No.
3:08cv2079; RUSSELL WINSETT, Case No. 3:08cv2079; TY WOODS,
Case No. 08cv2079; GERALDINE BRADLEY, Case No. 3:08cv2080;
JOY PAXTON-COLLIS, Case No. 3:08cv2080; JAMES LARSON, Case
No. 3:08cv2080; MARK SWEARINGEN, Case No. 3:08cv2080; PAUL
SHAVER, Case No. 3:08cv2081; BRADLEY PLAINTIFFS, 08cv2080;
BERCAW PLAINTIFFS, 08cv2079,
Plaintiffs,
v.
LENDINGTREE LLC, a Delaware Corporation,
Defendant – Appellee,
and
NEWPORT LENDING CORPORATION; SOUTHERN CALIFORNIA MARKETING
CORPORATION; HOME LOAN CONSULTANTS INCORPORATED; CHAPMAN
CAPITAL INCORPORATED; SAGE CREDIT COMPANY; HOME LOAN CENTER
INCORPORATED,
d/b/a
LendingTree
Loans,
a
California
Corporation; NEWPORT LENDING GROUP INCORPORATED,
Defendants.

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Document: 26

Date Filed: 11/17/2011

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Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:08-md-01976-FDW)

Submitted:

October 20, 2011

Decided:

November 17, 2011

Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gary W. Jackson, Sam McGee, JACKSON & MCGEE, LLP, Charlotte,
North Carolina, for Appellant.
Sascha Henry, SHEPPARD, MULLIN,
RICHTER & HAMPTON LLP, Los Angeles, California; Robert E.
Harrington, Jonathan C. Krisko, ROBINSON, BRADSHAW & HINSON,
P.A., Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Sylvia

Carson

appeals

the

district

court’s

order

compelling arbitration and its subsequent order confirming an
arbitration award.
arbitration

Carson argues on appeal that because the

provision

was

unconscionable,

the

erred in compelling arbitration of the case.
This

court

reviews

de

novo

district

court

We affirm.
a

determination that a dispute is arbitrable.

district

court’s

Wash. Square Sec.,

Inc. v. Aune, 385 F.3d 432, 435 (4th Cir. 2004).

In conducting

its review this court must “first examine whether the parties
agreed to arbitrate the claims at issue.”

United States ex rel.

Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 380 (4th
Cir. 2008); Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d
302, 305 (4th Cir. 2001) (“While federal policy broadly favors
arbitration, the initial inquiry is whether the parties agreed
to arbitrate their dispute.”) (citation omitted).

Here, Carson

affirmatively checked the box indicating that she agreed to the
terms

of

Further,

use,
no

which

one

included

prevented

her

the
from

arbitration
perusing

the

provision.
arbitration

provision and she was at liberty to choose a different service
provider.

We

conclude

that

Carson

agreed

to

arbitrate

the

claims at issue.
Having established that Carson agreed to arbitrate her
claims, this court must next determine “whether the arbitration
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Appeal: 11-1056

Document: 26

clauses

are

525 F.3d

at

require

Date Filed: 11/17/2011

enforceable.”
381.

United

Under

invalidation

unconscionable.”

limited

of

an

for

States

ex

rel.

circumstances,

arbitration

Wilson,

“equity

agreement

may

that

is

Murray v. United Food & Commercial Workers,

289 F.3d 297, 302 (4th Cir. 2002).
proof

Page: 4 of 5

this

affirmative

Carson bears the burden of

defense.

Tillman

v.

Commercial

Credit Loans, Inc., 655 S.E.2d 362, 369 (N.C. 2008).
“An

inquiry

into

unconscionability

requires

that

a

court consider all the facts and circumstances of a particular
case, and if the provisions are then viewed as so one-sided that
the contracting party is denied any opportunity for a meaningful
Id. at 370

choice, the contract should be found unconscionable.
(internal

alterations

asserting

that

procedural

and

a

and

contract

substantive

citations
is

omitted).

unconscionable

“A
prove

must

party
both

unconscionability.

Id.

(citations

Carson

her

burden

omitted).
We
establish

that

unconscionability.

application
external

conclude

from

her

pressure.

home
She

has

She

was

computer

visited

not

the

at

met

able
her

peruse

leisure,

website

applied for LendingTree’s service for free.

to

on

her

to
the

with

no

own

and

Prior to submitting

her application, she was expressly advised to print the policies
for her records.

She affirmatively indicated that she had read,

understood, agreed to, and accepted the terms of the LendingTree
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Date Filed: 11/17/2011

Page: 5 of 5

agreement.

Further, Carson has not shown that the arbitration

costs

prohibitively

were

expensive,

or

that

the

arbitration

provision was unfairly one-sided.
On these facts, we conclude that the district court
did

not

err

arbitration.

in

granting

Accordingly,

LendingTree’s
we

affirm

motion

the

to

judgment

compel
of

the

district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before

the

court

and

argument

would

not

aid

the

decisional

process.
AFFIRMED

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