Higher Ground Worship Center, Inc. v. ARKS, Inc. et al

Filing 23

MEMORANDUM DECISION AND ORDER denying 9 Motion to Compel Arbitration; denying as moot 15 Motion to Strike. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

HIGHER GROUND WORSHIP
CENTER, INC.,
Plaintiff,

Case No. 1:11-cv-00077-BLW
MEMORANDUM DECISION AND
ORDER

v.
ARKS, INC., a North Carolina
Corporation; HG LEASE HOLDCO,
LLC, A Delaware limited liability
company, successor in interest to BTM5,
LLC, a Delaware limited liability
company; ROBERT KNOWLES, an
individual; BL SPECIAL MANAGER,
LLC, a Texas limited liability company;
DOES 1-20,
Defendants.

INTRODUCTION
The Court has before it a motion to stay and compel arbitration (Dkt. 9) and a
motion to strike (Dkt. 15) filed by Defendants HG Lease Holdco, LLC1 and BL Special

1

HG Lease Holdco, LLC contends it was formerly known as BTM5, LLC.

MEMORANDUM DECISION AND ORDER - 1

Manager, LLC. For the reasons set forth below, the Court will deny the motion to
compel arbitration because it finds that the arbitration clause was both procedurally and
substantively unconscionable and therefore unenforceable.
BACKGROUND
This case involves a commercial lease with option to purchase. In August 2007,
Plaintiff Higher Ground Worship Center and Defendant BTM5 entered into a “Build to
Minister Lease/Purchase Agreement.” Another defendant in this case, Robert Knowles,
created BTM5, as well as another entity, Defendant Arks, Inc., for the purpose of
assisting churches and Christian organizations in the construction or expansion of their
facilities. Arks describes itself in materials it distributed to church ministries as a
“Church Consulting Company” that aims to provide an “unparalleled package of services
to assist churches in their new building projects.” Through its “Build to Minister
Lease/Purchase Program,” Ark offered “turn-key financing and construction loan solution
for churches that need to build and have the ability to service a reasonable loan, but can’t
get traditional financing.”
Plaintiff Higher Ground alleges that Arks induced it to enter into a lease and
purchase agreement by offering unique financing and promising “that it would build an
‘affordable church’ that would appraise at a value significantly higher than it would cost
the church to exercise its purchase option.” Pl’s Opp’n at 3, Dkt. 13. According to
Higher Ground, Arks estimated that the purchase option would be “24-45% under market
value,” giving the ministries “instant equity” in their church. The lease and purchase

MEMORANDUM DECISION AND ORDER - 2

agreement designated Arks' affiliate, BTM5, to serve as the contracting party on behalf of
Arks.
Higher Ground alleges that the representations Arks and BTM5 made were false.
It asserts claims against Arks, BTM5, Knowles, HG Lease, and BL Special Manager for
(1) violations of the Consumer Protection Act; (2) fraud; (3) declaratory judgment that
the lease and purchase agreement is null and void; (4) breach of contract; (5) breach of
the covenant of good faith and fair dealing; and (6) breach of fiduciary duty.
Defendants HG Lease and BL Special Manager maintain that these claims are
subject to an arbitration clause in the lease and purchase agreement, which reads as
follows:
Lessor foresees no difficulty arising from the business agreement as
outlined in this Agreement or in working with the Lessee, but in an effort to
be prudent, addresses the issue herein:
The parties to this Agreement are Christians and believe that the Bible
commands them to make every effort to live at peace and to resolve
disputes with each other in private or within the Christian church (see
Matthew 18:15-20; 1 Corinthians 6:1-8). Therefore, the parties agree that
any claim or dispute arising from or related to this Agreement, with the
exception of non-payment of rent, shall be settled by biblically-based
mediation and, if necessary, binding arbitration. In the event of such
dispute, both parties would agree upon a Christian conciliator or
conciliators who would mediate the dispute in accordance with the Rules of
Procedure for Christian Conciliation o fthe Institute for Christian
Conciliation, a division of Peacemaker Ministries (complete text of Rules is
available at www.Peacemaker.net). The parties understand that these
methods shall be the sole remedy for any controversy or claim arising out
of this Agreement and expressly waive their right to file a lawsuit in any
civil court against one another for such disputes, except to enforce an
arbitration provision.

MEMORANDUM DECISION AND ORDER - 3

Based on this provision, Defendants HG Lease and BL Special Manager2 move to
stay this litigation and compel arbitration. Higher Ground responds that the arbitration
clause is unconscionable and therefore unenforceable because the terms were dictated to
Higher Ground, who is a relatively unsophisticated party compared to Defendants, and
because the clause is excessively one-sided and lacks mutuality. 3
LEGAL STANDARD
The Federal Arbitration Act provides that agreements to arbitrate are generally
valid and enforceable unless grounds for revoking the agreement exist in law or equity. 9
U.S.C. § 2; Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 2525 (1987). Whether
there is a legal or equitable reason for revoking the agreement is a matter of state contract
law. Circuit City Stores, Inc. v. Adams, 279 F.3d 889,892 (9th Cir. 2002). Federal courts
determining the validity of an agreement to arbitrate should apply ordinary state-law
principles that govern the formation of contracts; thus, general contract defenses such as
fraud, duress, or unconscionability, grounded in state contract law, may operate to
invalidate arbitration agreements. Id.

2

For ease of reference, the Court will refer to Defendants HG Lease and BL Special Manager collectively
as HG Lease.
3
Higher Ground also argues that: (1) the arbitration agreement has been waived; (2) HG Lease and BL
Special Manager fail to show they are entitled to enforce the agreement because they were not parties to
the agreement; (3) the arbitration agreement, which requires that the Rules of Christian Conciliation
apply to the arbitration, denies Higher Ground access to secular law; and (4) the arbitration clause is
unenforceable because it denies Higher Ground the right to vigorous advocacy by an attorney. But
because the Court finds that the arbitration agreement is unenforceable, it will not address this other
arguments.

MEMORANDUM DECISION AND ORDER - 4

The choice of law provision in the lease and purchase agreement mandates that
North Carolina apply.
ANALYSIS
In North Carolina, a contract or clause is unenforceable if it is both procedurally
and substantively unconscionable. Tillman v. Commercial Credit Loans, Inc., 655 S.E.2d
362, 369 (N.C. 2008). Both procedural and substantive unconscionability must be
present to prove unconscionability. See Martin v. Sheffer, 403 S.E.2d 555, 557 (N.C.
1991). But they need not be present in the same degree. Courts apply a sliding scale: the
more substantively oppressive the contract term, the less evidence of procedural
unconscionability is required to come to the conclusion that the term is unenforceable,
and vice versa. Tillman, 655 S.E.2d 362 (N.C. 2008).
1.

Procedural Unconscionability
Procedural unconscionability involves “bargaining naughtiness” in the formation

of the contract, i.e., fraud, coercion, undue influence, misrepresentation, inadequate
disclosure. In Tillman v. Commercial Credit Loans, Inc., the North Carolina Supreme
Court found the clause was procedurally unconscionable because the plaintiffs were
rushed through the loan closing, the loan officer never mentioned the arbitration clause at
closing, the defendants admitted they would have refused to make a loan to plaintiffs
rather than negotiate the terms of the arbitration clause, and, “the bargaining power
between defendants and plaintiffs was unquestionably unequal.” 655 S.E.2d at 370.

MEMORANDUM DECISION AND ORDER - 5

Like the plaintiffs in Tillman, Higher Ground is relatively unsophisticated when
compared to BTM5, Arks, and Knowles – parties that regularly engaged in the type of
transaction at issue here and who drafted the agreement. Arks’ business involved
offering “turn-key financing” and construction loan solutions to churches with a need to
build and the ability to service a reasonable loan, but without the ability to obtain
traditional financing. In contrast, Higher Ground is not a sophisticated commercial entity
engaged in business for profit, but rather a local church led by Pastor Seip. Pastor Seip’s
received his GED and has undergone ministerial training, but he has no experience with
complex commercial transactions.
Higher Ground further maintains that the agreement was presented to them as a
“take it or leave it” deal with little opportunity for Higher Ground to negotiate its terms.
The parties never discussed the arbitration clause, which is buried in an un-highlighted
paragraph on page 18 of a 20 page document amidst other boilerplate language. Indeed,
according to Pastor Seip, Arks and Knowles pressured him to sign the agreement on
behalf of Higher Ground and used Pastor Seip’s desire to build a church as leverage
while assuring him that they considered this “less a business endeavor for the Defendants,
and more a calling to help fellow Christians.” Plaintiff’s Opp’n at 16, Dkt. 13.
All of these factors lend credence to Higher Ground’s argument that the arbitration
clause is procedurally unconscionable. On the other hand, Higher Ground is not an
individual consumer without any bargaining power like the plaintiffs in Tillman. While
this is a close decision, a review of all the facts and circumstances of the transaction – as

MEMORANDUM DECISION AND ORDER - 6

well as the Court’s decision that the agreement is substantively unconscionable as
described below – leads the Court to conclude that, on balance, the arbitration clause is
procedurally unconscionable. When a party who enjoys great bargaining power than
another party presents the weaker party without a meaningful opportunity to negotiate,
oppression and, therefore, procedural unconscionability, are present.
2.

Substantive Unconscionability
Substantive unconscionability ... involves the harsh, oppressive, and one-sided

terms of a contract, i.e., inequality of the bargain. King v. King, 114 N.C.App. 454, 458,
442 S.E.2d 154, 157 (1994) (citation omitted). In Tillman, the court also found that the
arbitration clause was substantively unconscionable based, in part, on its perception that,
“the arbitration clause [was] excessively one-sided and lack[ed] mutuality.” 655 S.E.2d
at 370.
The arbitration clause in this case, like the one at issue in Tillman, forces the
weaker party, i.e., Higher Ground, to arbitrate all its claims while preserving HG Lease’s
ability to litigate at least some of its claims. In Tillman, the arbitration clause excepted
from arbitration foreclosure actions and actions in which the total damages, costs, and
fees did not exceed $15,000. 655 S.E.2d at 370. And in this case, the arbitration clause
excepts all claims for the non-payment of rent. Indeed, that exception was utilized by
HG Lease to evict Higher Ground under Idaho’s wrongful detainer statute. As illustrated
by Tillman, the one-sidedness of the duty to arbitrate raises a serious question as to the

MEMORANDUM DECISION AND ORDER - 7

clause's validity. Id.; see also Armendariz v. Foundation Health Psychcare Servs., 6 P.3d
669, 691–94 (Cal. 2000); Iwen v. U.S. West Direct, 977 P.2d 989, 995–96 (Mont. 1999).
HG Lease argues that the provision excepting claims for the nonpayment of rent is
not one-sided because it gives a tenant a quick forum to resolve a dispute if a landlord
improperly attempts to evict a tenant. But this argument ignores reality. The payment of
monthly rent is the most significant benefit that HG Lease received from the lease and
purchase agreement, and realistically it will be the landlord, and not the tenant, who will
pursue litigation based upon the non-payment of rent. HG Lease – the party with the
greater sophistication and bargaining power – has therefore imposed the arbitration forum
on Higher Ground, while excluding from that forum any dispute with respect to the
nonpayment of rent, which is the only remedy HG Lease is likely to need. Higher
Ground is forced to forgo its constitutional right to a jury trial while in the vast majority
of circumstances, HG Lease is not. Based on the one-sidedness of the arbitration clause,
the Court finds that it is substantively unconscionable under general principles of North
Carolina contract law.
3.

Conclusion
Based on the facts and circumstances of this case, the Court concludes that the

arbitration clause in the lease and purchase agreement is unconscionable and therefore
unenforceable. The inequality of bargaining power between the parties and the oppressive
and one-sided nature of the clause itself lead the Court to this conclusion. Through the
arbitration clause at issue in this case, HG Lease preserved its ability to choose an

MEMORANDUM DECISION AND ORDER - 8

alternative forum while denying Higher Ground the same opportunity. The Court will
therefore deny HG Lease’s motion to compel arbitration.4
ORDER
IT IS ORDERED:
1.

HG Lease Holdco, LLC and BL Special Manager, LLC’s Motion to
Compel Arbitration (Dkt. 9) is DENIED.

2.

HG Lease Holdco, LLC and BL Special Manager, LLC’s Motion to Strike
(Dkt. 15) is DENIED as MOOT.

DATED: October 6, 2011

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

4

Although the Court chooses not to address the issue, the Court is also troubled by provisions in
the arbitration agreement requiring that the Rules of Christian Conciliation govern the arbitration process.
While there is case law suggesting that this does not invalidate the arbitration agreement, Encore
Productions, Inc. v. Promise Keepers, 53 F. Supp. 2d 1101 (D. Colo. 1993), the Court is troubled by such
a provision’s effect of requiring a now-unwilling participant to engage in an arbitration process which
may deprive them of due process and access to secular law.

MEMORANDUM DECISION AND ORDER - 9