GUIDOTTI v. LEGAL HELPERS DEBT RESOLUTION, L.L.C. et al

Filing 102

OPINION. Signed by Judge Jerome B. Simandle on 12/20/2011. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DAWN GUIDOTTI on behalf of
herself and other class
members similarly situated

HON. JEROME B. SIMANDLE
Civil No. 11-1219 (JBS/KMW)

Plaintiff,
OPINION
v.
LEGAL HELPERS DEBT RESOLUTION,
L.L.C., et al.,
Defendants.

APPEARANCES:
Joseph Michael Pinto, Esq.
POLINO AND PINTO, P.C.
720 East Main Street, Suite 1C
Moorestown, NJ 08057
Counsel for Plaintiff
Shaji M. Eapen, Esq.
MORGAN, MELHUISH & ABRUTYN, ESQS.
and
Richard W. Epstein, Esq.
GREENSPOON MARDER, P.A.
100 W. Cypress Creek Road, Suite 700
Ft. Lauderdale, FL 33309
Counsel for Defendants
SIMANDLE, District Judge:

Table of Contents
I.
II.

INTRODUCTION . . . . . . . . . . .
BACKGROUND . . . . . . . . . . . .
A.
Parties.. . . . . . . . . . .
1.
Law Firm Defendants .. .
2.
Bank Defendants. . . . .
3.
Other Moving Defendants.
4.
Non-moving Defendants ..
B.
Facts . . . . . . . . . . . .

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C.
Procedural History .. . . . . . . . . . . . .
III. DISCUSSION . . . . . . . . . . . . . . . . . . . .
A.
Arbitration Motions.. . . . . . . . . . . . .
1.
Arbitration Clause in ARA .. . . . . . .
2.
Arbitration Clause in AADS . . . . . . .
3.
Motion to Stay . . . . . . . . . . . . .
B.
Motions to Dismiss - Personal Jurisdiction ..
1.
Standard of Review . . . . . . . . . . .
2.
Bank Defendants .. . . . . . . . . . . .
3.
Remaining Defendants . . . . . . . . . .
C.
Motions to Dismiss - Failure to State a Claim
1.
Standard of Review . . . . . . . . . . .
2.
Bank Defendants Global and RMBT .. . . .
3.
Remaining Defendant LHP .. . . . . . . .
D.
Non-Moving Defendants . . . . . . . . . . . .
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION
This case is a putative class action alleging a conspiracy

to commit unlicensed debt adjustment services in violation of the
New Jersey Debt Adjustment and Credit Counseling Act, N.J. Stat.
Ann. § 17:16G-1, et seq., the New Jersey RICO statute, N.J. Stat.
Ann. § 2C:41-1, et seq., the New Jersey Consumer Fraud Act, N.J.
Stat. Ann. § 56:8-2, et seq., and various other common law causes
of action.

Plaintiff names twenty two defendants and charges all

defendants collectively with eight different causes of action.
Essentially, Plaintiff alleges that she was deceived into
contracting with Defendants in the hopes that they would convince
her unsecured creditors to settle her consumer debts without
requiring that she declare bankruptcy.

Instead, Plaintiff

alleges that they participated in a conspiracy to fleece her (and
others similarly situated) of her remaining assets without

2

negotiating with her creditors or protecting her from her
creditors when they sued to collect on their debts.
Presently before the Court are six motions filed by eighteen
of the twenty two Defendants.

Nine of the Defendants (the “Law

Firm Defendants”) have moved to compel arbitration and to dismiss
for lack of personal jurisdiction and for failure to state a
claim. [Docket Items 20 & 21.]

Four of the Defendants (the “Bank

Defendants”) have similarly moved to compel arbitration and to
dismiss. [Docket Items 26 & 27.]

Finally, a group of five other

Defendants have moved to stay the action pending the arbitration
requested by the other Defendants, and to dismiss for lack of
personal jurisdiction and for failure to state a claim. [Docket
Items 23 & 24.]

All three of the motions to dismiss [Docket

Items 20, 23 & 26] include an as-applied constitutional challenge
to the New Jersey Debt Adjustment and Credit Counseling Act
(“NJDACCA”).
Plaintiff responded to these motions with two combined
briefs in opposition, one opposing the motions regarding
arbitration and one opposing the motions to dismiss. [Docket
Items 48 & 49.]

The moving defendants filed their reply briefs

for both the motions to dismiss [Docket Items 72, 74 & 75] and
the motions regarding arbitration [Docket Items 73, 76 & 77], and
subsequently filed a notice of supplemental authority regarding
the arbitration issues [Docket Item 78].

3

Plaintiff was later

granted leave to file a sur-reply brief to the Bank Defendants’
reply brief [Docket Item 83], and the Bank Defendants were then
granted leave to file a sur-sur-reply brief [Docket Item 88].
Additionally, the four Defendants that did not participate
in the instant motions filed letters with the Court requesting
that they be permitted to join in the motions, with the leave of
the moving parties’ counsel. [Docket Items 89 & 96.]

Plaintiff

has notified the Court of her opposition to permitting these
nonmoving Defendants to join in the motions, explaining that
these additional Defendants raise different issues than the
moving Defendants and, therefore, would require additional
opposition from Plaintiff which she has not filed. [Docket Item
90.]
The Court heard oral argument on these motions on November
21, 2011.

The motions require the Court to decide issues of

whether to enforce either of two different arbitration clauses.
Depending on how the Court decides those issues, the Court may
also have to then decide whether Plaintiff has proven that the
various out-of-state corporations and corporate officers named as
Defendants in this action have established the minimum contacts
with New Jersey necessary to exercise personal jurisdiction over
these Defendants.

Finally, for those Defendants that the Court

determines are subject to its personal jurisdiction, the Court
must determine whether Plaintiff’s Amended Complaint has alleged

4

sufficient facts to state a claim under any of the eight asserted
theories, and whether doing so, as applied to those remaining
Defendants, would violate the United States Constitution,
specifically its Contracts Clause (Art. I, Sec. 10, Cl. 1) and
the Dormant Commerce Clause (Art I, Sec. 8, Cl. 3).
For the reasons stated below, the Court will grant the Law
Firm Defendants’ motion to compel arbitration (and consequently
deny their motion to dismiss as moot); deny the Bank Defendants’
motion to compel, and deny the remaining Defendants’ motion to
stay the action.

The Court will further grant in part and deny

in part the Bank Defendants’ motion to dismiss, and will grant in
its entirety the Remaining Defendants’ motion to dismiss.

II.

BACKGROUND
A.

The Parties

Because Plaintiff’s Amended Complaint names so many parties,
and the alleged connections between the parties are so intricate,
the Court will begin with a description of the Defendants and how
they relate to each other.

Because the moving Defendants have

organized themselves into three groups, the Court will begin by
identifying the Defendants that belong to each of those groups,
as well as the four remaining Defendants that were not among the

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moving parties.1
1.

The Law Firm Defendants

The first group of Defendants is the Law Firm Defendants.
The nine Defendants in this group connect to this action through
Plaintiff’s contract for legal and debt negotiation services.
This group includes two organizational entities, Legal Helpers
Debt Resolution, LLC (“LHDR”) and Eclipse Servicing, Inc.
(“Eclipse”).

Additionally, Plaintiff named seven individual

lawyers and corporate officers affiliated with these
organizations.

Specifically, Plaintiff named as Defendants the

four managing members of LHDR: Thomas G. Macey, Jeffrey J.
Aleman, Jason E. Searns, and Jeffrey Hyslip.

None of these four

attorneys are alleged to be residents of New Jersey, and
Plaintiff alleges that they are not licensed to practice law in
New Jersey.

Am. Compl. ¶¶ 7-10.

Plaintiff also named Thomas M.

Nicely, who is a member of the New Jersey Bar, and alleges that
he is a “managing member of or partner of LHDR”, a citizen of New
Jersey, and that he “claims to have an office” in Cherry Hill,
New Jersey, which Plaintiff alleges is not a “bona fide” office

1

As will become clear through the discussion of the parties
and causes of action, there is not complete diversity of
citizenship between the parties in this action. However, because
subject matter jurisdiction in this action is based on the Class
Action Fairness Act, 28 U.S.C. § 1332(d), Plaintiff need not
establish complete diversity of citizenship, but only minimal
diversity. West Virginia ex rel. McGraw v. Comcast Corp., 705 F.
Supp. 2d 441, 448 (E.D. Pa. 2010).
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for the practice of law in New Jersey.

Am. Compl. ¶¶ 11, 51.

Finally, also included in the Law Firm Defendants Group are two
corporate officers of Eclipse: Harry Hedaya (the President of
Eclipse) and Amber N. Duncan (the Vice President of Eclipse).
Am. Compl. ¶ 3.
Plaintiff alleges that LHDR is a national law firm,
incorporated in Nevada with its main office in Chicago, Illinois.
Am. Compl. ¶ 2.

Plaintiff alleges that LHDR markets itself as

“the nation’s largest debt resolution law firm maintaining
partners in all 50 states.”

Id. ¶ 13.

Also, Plaintiff alleges

that LHDR claims to “work[] in professional alliance with many of
the nations [sic] top reputable debt negotiation companies . . .
to provide consumers with debt resolution services similar to
those provided by large corporate law firms for their business
clients.”

Id. ¶ 13(C).

Plaintiff alleges that Eclipse is one such debt negotiation
company with which LHDR works.

Plaintiff alleges that Eclipse

markets itself as a “back office solution for debt settlement
companies looking to outsource their customer service and debt
management and negotiation requirements.”

Id. ¶ 14.

Plaintiff

alleges that LHDR contracted with Eclipse to provide customer
service, creditor negotiation services, provide online client
account access and electronic signature services.

Id.

In

Plaintiff’s attorney retainer agreement (“ARA”), Plaintiff agreed

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with LHDR that “LHDR shall subcontract certain tasks including
negotiations with creditors and collectors and certain customer
support responsibilities” to Eclipse, to be performed “under the
direct supervision of LHDR.”

Retainer Agreement ¶¶ V, VIII,

Bratter Cert. Ex. C.
2.

Bank Defendants

The second group of Defendants, of which there are four,
connect to this action through Plaintiff’s contract to open and
operate a special bank account out of which she would pay LHDR
and Eclipse’s fees and in which she would save money that was
intended ultimately to be paid to her settling creditors.
Plaintiff names Rocky Mountain Bank & Trust (“RMBT” or “Rocky”)
as the financial institution where she opened this account and
Global Client Solutions (“Global”) as the “processing agent” that
would operate the automatic fund transfers into this account and
automatic payments out of it to LHDR and Eclipse.
4.

Am. Compl. ¶

Plaintiff additionally names as Defendants the corporate

officers of RMBT and Global, Douglas L. McClure, who Plaintiff
alleges is the President of RMBT, and Michael Hendrix, who
Plaintiff alleges is the President of Global.2

2

Plaintiff alleges

Defendants Hendrix and McClure assert, in certifications
attached to their motion to dismiss, that their titles are
incorrectly alleged in the Complaint; Hendrix claims his correct
title is Managing Member of Global and McClure claims his correct
title is Director of RMBT. Hendrix Cert; McClure Cert. As these
are facts outside the Amended Complaint, and as they are
irrelevant to the pending motions, the Court will not consider
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that
Global and Rocky maintain and operate debt
management accounts for hundreds of third
party businesses that offer debt adjusting
services, electronically withdraw funds from a
debtors [sic] account or receive funds
forwarded by other means from the debtor and
deposit these funds in a Special Purchase
[perhaps intended to be “Purpose”] Account in
Rocky, administered and maintained by Global.
Id. ¶ 16(A).
3.

Other Moving Defendants

Finally, an additional five Defendants have filed a pair of
motions to dismiss and to stay pending arbitration.

Unlike the

previous two groups, the Defendants in this group are not
contractually connected with Plaintiff, but are individuals or
organizations that Plaintiff alleges are part of the larger
nationwide conspiracy with the previous two groups of defendants
to commit illegal debt adjustment services.
Defendant Legal Helpers P.C. (“LHP”) is alleged to be a
national bankruptcy law firm headquartered in Illinois, managed
by Defendant Macey, that lists an office at the same address as
the address listed for the office of Defendant LHDR in Newark,
New Jersey.

Am. Compl. ¶ 11.

Defendant Legal Services Support Group, L.L.C. (“LSSG”) is
allegedly a Nevada Corporation that funnels customers seeking
debt relief services, such as Plaintiff (though not,

these facts on this motion.
9

specifically, Plaintiff herself), to lawyers and law firms such
as LHDR.

Id. ¶¶ 6, 19.

Defendants Century Mitigations, L.P.

(“CMIT”), JEM Group (“JEM”), and Lynch Financial Solutions
(“LYNCH”) are alleged to be the managing members of LSSG.
6.

Id. ¶

All four of these corporations are alleged to be

headquartered and located in states other than New Jersey.
4.

Id.

Non-Moving Defendants

Finally, four Defendants were named in this action but did
not join in the instant motions (though all four have, after the
extensive briefing was completed, requested permission to join in
the motions to dismiss of Groups 2 and 3, discussed above).
These Defendants include: JG Debt Solutions, L.L.C., Joel
Gavalas, Reliant Account Management, L.L.C. and Stephen Chaya.
Defendant Gavalas is apparently an employee or officer of JG Debt
Solutions, and was the employee with whom Plaintiff allegedly
spoke when she initially sought out debt settlement assistance in
2009, who referred her to LHDR and Eclipse.

Am. Compl. ¶¶ 21-22.

Defendant Reliant Account Management is allegedly a California
corporation that engages in similar business as Defendant Global,
and Defendant Chaya is allegedly the managing member of Reliant.
Id. ¶¶ 12, 16(B).

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B.

Facts3

In September of 2009, Plaintiff had amassed approximately
$19,550 in unsecured consumer and credit card debt.

Am. Compl. ¶

21; Attorney Retainer Agreement Schedule A, Bratter Cert. Ex. C.4
Plaintiff called Defendant JG Debt Solutions, seeking help to
reduce or negotiate a settlement of some of her debt rather than
file for bankruptcy, and spoke with Defendant Joel Gavalas.
Compl. ¶ 21.

Am.

Gavalas described a “debt reduction program” in

which he suggested that Plaintiff’s “credit card debt could be
cut in half and paid off within three years.”

Id.

Gavalas

explained that Defendant Eclipse would evaluate her financial
situation to determine whether she “qualified” for the program,
and that if she did, a payment program would be prepared for her.
Id.

Elsewhere in the Amended Complaint, Plaintiff alleges that

it was the practice of Eclipse to only accept referred clients
from JG (or similar lead generators) that had at least $10,000 in
debt and access to e-mail.

Id. ¶ 68.

3

Unless otherwise noted, the following facts are those
alleged in the Amended Complaint or included in indisputedly
authentic documents, the existence of which Plaintiff alleges in
her Amended Complaint.
4

Plaintiff alleges the existence of two contracts in this
action: the Attorney Retainer Agreement she signed retaining
LHDR, and the Special Purpose Account Application she signed to
open an account with RMBT. Am. Compl. ¶ 23. Defendants attached
undisputedly authentic copies of these agreements to the
certification of counsel for Defendants Rebecca Bratter. Where
necessary, the Court will take note of facts and information
contained in these attached documents.
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Some time after this initial call, Gavalas called Plaintiff
back and informed her that “she had been accepted in the program”
and that Eclipse had proposed two alternate plans for
participation in its program.

Id. ¶ 22.

Plaintiff was informed

that she would be required to make monthly payments into a new
bank account for a period of years out of which she would pay for
the debt settlement negotiation services and also settle her
debts with her creditors.

Id.

She was offered a three-year plan

in which she would pay approximately $358 per month or a fiveyear plan in which she would pay approximately $200 per month.
Plaintiff chose the three-year plan.

Id.

In this conversation, Plaintiff was also informed that she
would be represented in the debt negotiation process by attorneys
from LHDR.

Gavalas then “asked a series of questions to which

Plaintiff had to respond” which was recorded.

Id.

Elsewhere in

the Amended Complaint, Plaintiff alleged it was the practice of
JG and other similar organizations that fed clients to Defendants
Eclipse and LHDR to “prepare the customer for this recording.”
Id. ¶ 70.
Customers were told that certain questions had
to be asked of them to which they had to
respond and that, although some of the
questions and information which they would
hear might seem frightening or alarming, they
were merely to answer “yes” to the questions
and the JG representative would call them back
after the recording was finished.
The
representative further explained that the
information they would hear during [this] call
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rarely, if ever, happened and that the
attorneys would not let it happen, taking care
of the problems that might arise.
The
customer was advised not to ask any questions
during the [] call or the call would have to
be
repeated.
The
recorded
call
was
transmitted to Eclipse.
Id.

However, Plaintiff does not specifically allege that this

coaching and these reassurances were given to her, she merely
alleges that “Gavalas then asked a series of questions to which
plaintiff had to respond. This part of the call was recorded.”
Id. ¶ 22.

Plaintiff does not allege what questions were asked of

her, what her responses were, or what effect these questions had
on her decision to contract for debt negotiation services with
the Defendants.
Later that same month, Plaintiff received via e-mail a
collection of documents regarding the debt settlement program.
Included in these documents was an attorney retainer agreement
(the “ARA”) and an application to open a Special Purpose Account
with RMBT (the “SPAA”).

Id. ¶¶ 23(e), 23(b).

both documents and returned them.

Plaintiff signed

Id. ¶ 28.

The ARA lays out the respective roles of LHDR and Eclipse in
the debt settlement negotiation plan, states Plaintiff’s fee
arrangements to both of them, and limits the scope of the
representation to be provided by LHDR.

Bratter Cert. Ex. C.

The

Agreement describes LHDR as a “debt relief agency and law firm
that provides debt resolution services to its clients.”

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Id. ¶ I.

The ARA limits LHDR’s services to only “negotiate and attempt to
enter into settlements with creditors of the Client in an effort
to modify and/or restructure Client’s current unsecured debt.”
Id. ¶ III.

But the ARA expressly stated that LHDR would not

provide services related to “Represent[ing] Client in any matter
before a court, including foreclosure proceedings or in any
arbitration or hearing” and that “In the event a creditor or
collector sues Client, whether related to a debt obligation or
any other claim, LHDR is under no obligation to provide
representation.”

Id.

The ARA further stated that LHDR would subcontract
“negotiations with creditors and collectors” to “a third party”
later identified in the ARA as Eclipse.

Id. ¶¶ V, VIII.

However, the ARA states that “LHDR and other legally trained,
licensed personnel will supervise all negotiations and customer
support and ensure that these services comply with established
procedures.”

Id. ¶ V.

The fee structure established in the ARA provided that
Plaintiff would pay LHDR an initial flat fee retainer of $500 and
a contingency fee of 5% of the amount of debt reduction
accomplished by the work of LHDR and its staff, which would
include a credit of the initial retainer fee.

Id. ¶ VIII.

Additionally, the ARA established that Plaintiff would pay a
“service fee” to Eclipse of 15% of her total scheduled debt.

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Id.

In Plaintiff’s case, as her total scheduled debt was listed as
$19,550, this fee amounted to $2,932.50 (though it was nowhere
listed as a total figure in the ARA), to be paid in 15 monthly
installments (the first 15 months of the 36 month program).
Id. Schedule B.

In addition to these charges described in the

text of the ARA, the attached Payment Schedule & Fee Table listed
a monthly “maintenance fee” of $50, which, spread over the
anticipated 36 months of the program, amounted to an anticipated
$1,800.

Id.

The ARA also specified that Plaintiff agreed to establish an
“authorized bank account” from which the Service Fees and legal
fees would be automatically withdrawn on a monthly basis, with
the first payment to start on September 30, 2009.

Id. ¶¶ VIII-

IX.
The ARA included an enforceability clause, which states that
“In the event that any portion of this Agreement is determined to
be illegal or unenforceable, the determination will not affect
the validity or enforceability of the remaining provisions of
this Agreement, all of which shall remain in full force and
effect.”

Id. XX.

Finally, and crucially to the instant motions

to compel arbitration, the ARA also included an arbitration
clause, which states
Arbitration:
In the event of any claim or dispute between
Client and LHDR related to the Agreement or
related to any performance of any services
15

related to this Agreement, such claim or
dispute
shall
be
submitted
to
binding
arbitration upon the request of either party
upon the service of that request. The parties
shall initially agree on a single arbitrator
to resolve the dispute. The matter may be
arbitrated either by the Judicial Arbitration
Mediation Service or American Arbitration
Association, as mutually agreed upon by the
parties or selected by the party filing the
claim. The arbitration shall be conducted in
either the county in which Client resides, or
the closest metropolitan county. Any decision
of the arbitrator shall be final and may be
entered into any judgment in any court of
competence [sic] jurisdiction. The conduct of
the arbitration shall be subject to the then
current rules of the arbitration service. The
costs of arbitration, excluding legal fees,
will be split equally or be born by the losing
party, as determined by the arbitrator shall
decide [sic]. The parties shall bear their own
legal fees.
Id. ¶ XVIII.

Plaintiff signed the ARA on September 21, 2009.

As stated above, the collection of documents e-mailed to
Plaintiff also included the SPAA, which was an application for
the “authorized bank account” which Plaintiff agreed to open in
the ARA for the purpose of automatically deducting her service
fees and legal fees to LHDR and Eclipse, and out of which she
would eventually pay her creditors in the eventuality that they
agreed to a negotiated settlement.

The SPAA memorialized

Plaintiff’s agreement to permit RMBT, “through it’s [sic] agent
Global, to initiate debit entries” from her primary checking
account at TD Bank to the RMBT Special Purpose Account in the
amount of $348.68 per month, “for the purpose of accumulating

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funds to repay my debts in connection with a debt management
program sponsored by the organization identified below [LHDR,
listed as “Macey, Aleman, Hyslip & Searns, LLC”].”
Ex. A.

Bratter Cert.

The application also stated that Plaintiff agreed that

Global was authorized to “periodically disburse[] funds from the
Account pursuant to instructions that I may give from time to
time. In this regard, I hereby authorize payment from the Account
of the fees and charges provided for in this Application and the
Agreement.”

Id.

Additionally, the SPAA included an acknowledgment and
agreement that “I understand that the Account’s features, terms,
conditions and rules are further described in an Account
Agreement and Disclosure Statement that accompanies this
Application (the “Agreement”).

I acknowledge that I have

received a copy of the Agreement; that I have read and understand
it; that the Agreement is fully incorporated into this
Application by reference; and that I am bound by all of its terms
and conditions.”
2009.

Id.

Plaintiff signed the SPAA on September 30,

Id.

The Account Agreement and Disclosure Statement (“AADS”),
referred to above, includes, perhaps unsurprisingly, an
arbitration clause.

“In the event of a dispute or claim relating

in any way to this Agreement or our services, you agree that such
dispute shall be resolved by binding arbitration in Tulsa

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Oklahoma utilizing a qualified independent arbitrator of Global’s
choosing.

The Decision of an arbitrator will be final and

subject to enforcement in a court of competent jurisdiction.”
Id.
Plaintiff claims, in her brief in opposition to Defendants’
motions to compel arbitration, that she had not received nor read
the AADS (or, consequently, the arbitration clause) prior to
signing the SPAA.

While the Amended Complaint is silent on the

issue of when she first received the AADS, Plaintiff includes
evidence in her Appendix attached to her opposition brief
suggesting that at the time that she signed the SPAA in September
of 2009, the documents she had received from LHDR, Eclipse, RMBT,
and Global did not include the AADS, which did not arrive until
after she received the executed ARA and SPAA in a mailing from
LHDR postmarked on October 19, 2009.
129-146.

Pl.’s Combined Appx. at

There is, however, no evidence that, upon receiving the

AADS less than three weeks after signing the SPAA, she made any
effort to contest the terms or the arbitration clause.
Plaintiff’s first payment to the SPA was made on September
30, 2009; Plaintiff allegedly deposited into the RMBT account,
over the course of the following 15 months, a total of $5,626.97.
Out of this account, the entire 15% service fee to Eclipse was
paid, amounting to $2,932.50, the $500 retainer fee was paid to
LHDR, and Plaintiff paid maintenance fees of $750.

18

Am. Compl. ¶

28.

Plaintiff alleges that after all these fees were deducted,

she was left with a surplus of only $1,090.47 as of November 30,
2010.5

Id.

During those fifteen months that Plaintiff was paying her
monthly payments to the RMBT account, she was not making any
payments on her credit cards or other debts, apparently pursuant
to her understanding of the LHDR/Eclipse debt settlement
negotiation plan.

Id. ¶ 23(d); ¶ 71(A) (“If the customer asked

if they should make their minimum payments, they were told that
if they did, it would interfere with the negotiation process and
make it harder to negotiate.”).6

She received multiple calls

from her creditors and settlement offers, all of which she
forwarded to LHDR, expecting that they would address and
negotiate a settlement on the accounts.

Am. Compl. ¶ 29.

However, none of her debts were settled by LHDR or Eclipse, and
she observed no negotiation efforts undertaken by either.

Id.

(“plaintiff did not receive any communications from LHDR, Eclipse
or Global concerning any settlement offers or the various
contacts by the creditors.”)
Plaintiff notes in her Amended Complaint that the ARA does

5

The Court notes that these allegations leave approximately
$340 unaccounted for from the total amount Plaintiff is alleged
to have deposited into her SPA.
6

The Court notes that there is no allegation in the Amended
Complaint that Plaintiff herself was told this.
19

not explicitly state “when LHDR is to begin the negotiation
process or if the client must accumulate a certain amount of
funds before negotiations will commence.”

Id. ¶ 27.

Though

Plaintiff notes that she was sent a document from LHDR in a
“welcoming package” in October of 2009, listing frequently asked
questions, which stated that once it had been retained, LHDR
would “send letters to creditors notifying them that it
represents the plaintiff and LHDR will then begin the
negotiations.”

Id.

However, she alleges that if a customer were

to have asked JG during the initial client contact, the customer
would have been told that negotiations would not begin until the
customer “had enough money [saved in the SPA, after fees] to
begin negotiating with the smallest creditor first.”

Id. ¶

71(B).
Throughout 2010, Plaintiff received increasingly dire
communications from her creditors, eventually resulting in three
of Plaintiff’s four creditors suing her to recover the sums owed.
Id. ¶¶ 31-37.

When Plaintiff requested LHDR’s assistance with a

suit for recovery filed by Target National Bank, Eclipse
responded by noting that the ARA did not cover defending
Plaintiff from suits, “but rather to manage and settle debts.”
Id. ¶ 34.

Plaintiff’s final payment to the SPA was made by

cashier’s check in December of 2010 because one of her creditors
levied the remaining funds in her TD Bank checking account.

20

Id.

¶ 38.

The Amended Complaint does not specify how Plaintiff’s

relationship with Defendants was eventually terminated, or the
final total amounts she has been obligated to pay her creditors
in the form of judgments against her.
C.

Procedural History

Plaintiff initially filed this action in the Superior Court
of New Jersey, Burlington County, on January 28, 2011.

Defendant

LHDR was served with the summons and Complaint on February 9,
2011.

LHDR removed the action to this Court on March 4, 2011.

[Docket Item 1.]

Plaintiff thereafter filed the currently

operative Amended Complaint on March 17, 2011.

[Docket Item 4.]

Approximately two months later, the eighteen moving Defendants
filed the instant motions, upon which briefing was concluded, and
the Court heard oral argument on November 21, 2011.

III.

DISCUSSION
As described briefly above, Defendants seek multiple,

alternative forms of relief from the Court through their motions.
Because the moving Defendants seek different forms of relief in
self-organized groups, and each group of Defendants stands in
slightly different posture with respect to the Plaintiff, the
Court will address their pairs of motions in the following
sequence: first, the Court will address the motions to compel
arbitration and the motion to stay pending arbitration,

21

evaluating the different groups of parties according to their
separate motions.
dismiss.

Second, the Court will address the motions to

Finally, the Court will briefly address the request by

the non-moving defendants to join in the motions to dismiss by
the Bank Defendants and the other moving Defendants.
A.

Arbitration Motions

The Law Firm Defendants and the Bank Defendants both move to
compel arbitration, and the other moving Defendants move to stay
the action as to them pending the resolution of the arbitration.
As there are two contracts at issue with two different
arbitration clauses, the Court will evaluate the Law Firm
Defendants’ arbitration clause in the ARA first before then
turning to the Bank Defendants’ arbitration clause in the AADS.
The standard of evaluating the two clauses is the same.
As the Court of Appeals has repeatedly emphasized, “the
Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, provides that
arbitration agreements are enforceable to the same extent as
other contracts, and establishes a strong federal policy in favor
of the resolution of disputes through arbitration.”

Morales v.

Sun Constructors, Inc., 541 F.3d 218, 221 (3d Cir. 2008)
(internal quotations and citations omitted).

“Section 2 of the .

. . FAA makes agreements to arbitrate ‘valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.”

22

AT&T Mobility LLC v.

Concepcion, -- U.S. --, 131 S. Ct. 1740, 1744 (2011) (quoting 9
U.S.C. § 2).
There are, therefore, only two threshold questions that the
Court must answer when deciding a motion to compel arbitration:
“(1) whether a valid agreement to arbitrate exists and (2)
whether the particular dispute falls within the scope of that
agreement.”

Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529,

532 (3d Cir. 2005).
1.

Arbitration Clause in the ARA

The Law Firm Defendants claim that the arbitration clause in
the ARA, which Plaintiff signed, establishes an agreement to
arbitrate all of Plaintiff’s claims against them, as all of her
claims relate to their “performance of any services related to”
the ARA.
Plaintiff opposes enforcement of the ARA arbitration clause
for a laundry-list of reasons: (1) it was obscurely located, (2)
it was not clear that Plaintiff was waiving her right to a jury
trial, or her right to discovery, or fees and costs, (3) it used
insufficiently broad language such that it is not clear that
Plaintiff’s dispute falls within the scope of the agreement, and
(4) it is unconscionable.
For reference, the text of the ARA’s arbitration clause in
full is reproduced below.

The Clause was located on the fourth

page of the ARA, four paragraphs up from (and on the same page

23

as) the signature line, and began with a bolded paragraph
heading.
Arbitration:
In the event of any claim or dispute between
Client and LHDR related to the Agreement or
related to any performance of any services
related to this Agreement, such claim or
dispute
shall
be
submitted
to
binding
arbitration upon the request of either party
upon the service of that request. The parties
shall initially agree on a single arbitrator
to resolve the dispute. The matter may be
arbitrated either by the Judicial Arbitration
Mediation Service or American Arbitration
Association, as mutually agreed upon by the
parties or selected by the party filing the
claim. The arbitration shall be conducted in
either the county in which Client resides, or
the closest metropolitan county. Any decision
of the arbitrator shall be final and may be
entered into any judgment in any court of
competence [sic] jurisdiction. The conduct of
the arbitration shall be subject to the then
current rules of the arbitration service. The
costs of arbitration, excluding legal fees,
will be split equally or be born by the losing
party, as determined by the arbitrator shall
decide [sic]. The parties shall bear their own
legal fees.
Attorney Retainer Agreement ¶ XVIII, Bratter Cert. Ex. C.
The Court finds that this arbitration agreement is valid and
enforceable.

The Court will accordingly grant the Law Firm

Defendants’ motion to compel arbitration of Plaintiff’s claims
against the Law Firm Defendants.
First, Plaintiff’s argument that the ARA is an
unconscionable adhesion contract is without merit, since such
claims, which target the contract as a whole (rather than the

24

arbitration clause itself), are themselves arbitrable.

Buckeye

Check Cashing, Inc. V. Cardegna, 546 U.S. 440, 449 (2006) (“a
challenge to the validity of the contract as a whole, and not
specifically to the arbitration clause, must go to the
arbitrator.”).

See also

JLM Industries, Inc. v. Stolt-Nielsen

SA, 387 F.3d 163, 170 (2d Cir. 2004).
Plaintiff’s arguments regarding the unconscionability of the
arbitration clause do not clearly establish whether Plaintiff’s
argument is that the ARA as a whole is unconscionable or whether
Plaintiff argues, in addition, that the terms of the arbitration
clause itself are unconscionable and therefore unenforceable.
Most of Plaintiff’s arguments appear to be directed at the
contract as a whole (describing the contract as one of adhesion,
with unequal levels of sophistication and bargaining power,
e.g.).

However, Plaintiff also argues that the terms of the

arbitration clause are substantively unconscionable because they
subject Plaintiff to “multiple arbitration forums and locations”
and that, because the LHDR Defendants were lawyers negotiating a
contract to represent the Plaintiff, the fact that the
arbitration agreement limited Plaintiff’s rights to statutory
claims and counsel fees was substantively unconscionable as well.
Defendant responds that there is no evidence of either
procedural or substantive unconscionability in the clause.

The

terms of the clause are even-handed, in that the location of the

25

arbitration is convenient to Plaintiff, rather than Defendants;
the choice of the arbitrator is mutually agreed by the parties,
and the arbitration service could be chosen by the Plaintiff in
filing the claim.
Regarding Plaintiff’s next arguments against enforcement of
the arbitration clause, its alleged obscurity and lack of
clarity, the Court interprets these arguments to attack the
contention that Plaintiff entered into an arbitration agreement.
Plaintiff argues that New Jersey law requires that contractual
waivers of jury trials, discovery, and fees, when located in
contracts of adhesion, are required to be highlighted and more
obviously and clearly stated than the clause in the ARA.

See,

e.g., Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577 (App. Div.
2004).

Defendants respond that, to the extent that Plaintiff

argues that special notice and clarity rules are necessary under
New Jersey law to enforce arbitration agreements, that
proposition is squarely rejected by the Supreme Court’s recent
opinion in AT&T Mobility LLC v. Concepcion, -- U.S. --, 131 S.
Ct. 1740, 1746 (2011) (declaring that the FAA preempts state-law
defenses to arbitration agreements “that apply only to
arbitration or that derive their meaning from the fact that an
agreement to arbitrate is at issue.”)

See also id. at 1748

(“nothing in it [Section 2 of the FAA] suggests an intent to
preserve state-law rules that stand as an obstacle to the

26

accomplishment of the FAA's objectives.”).
Plaintiff argues that the New Jersey requirement of greater
clarity and obviousness for arbitration clauses, essentially a
notice requirement, survives AT&T Mobility, which explicitly
recognized that “states remain free to take steps addressing the
concerns that attend contracts of adhesion -- for example,
requiring class-action-waiver provisions in adhesive arbitration
agreements to be highlighted.”
n.6.

AT&T Mobility, 131 S. Ct. at 1750

This footnote has been recognized by the New Jersey

Appellate Division as preserving the existing state court rules
governing the clarity and obviousness of such waivers.
In the aftermath of AT&T Mobility, state
courts remain free to decline to enforce an
arbitration provision by invoking traditional
legal doctrines governing the formation of a
contract and its interpretation.
Applying
such core principles of contract law here, we
must decide whether there was mutual assent to
the arbitration provisions in the [defendant
car dealership’s] contract documents. As part
of that assessment, we must examine whether
the terms of the provisions were stated with
sufficient clarity and consistency to be
reasonably understood by the consumer who is
being charged with waiving her right to
litigate a dispute in court.
NAACP of Camden County East v. Foulke Management Corp., 421 N.J.
Super. 404, 428 (App. Div. 2011).
Thus, the Court must determine to what extent New Jersey
courts require heightened specificity and clarity in consumer
arbitration agreements, and whether the ARA signed by Plaintiff

27

falls afoul of that rule.
Plaintiff argues that cases such as Rockel, 368 N.J. Super.
577, and Gras v. Associates First Capital Corp., 346 N.J. Super.
42 (App. Div. 2001) recognize a standard of clarity and
obviousness that is not met by the arbitration provision in the
ARA.

In Rockel, an arbitration provision was deemed to be

unenforceable because the various contract documents signed by
the consumer included multiple, contradictory arbitration
provisions, and the provisions were located in small print in an
obscure portion of the contract.

Rockel at 586-87.

The

Appellate Division distinguished the provisions in Rockel, which
it found to be an insufficiently clear manifestation of a waiver
of statutory rights and jury trial rights, with the arbitration
provision in Gras v. Associates First, 346 N.J. Super. at 57,
where the Appellate Division found the language of an arbitration
agreement “specific enough to inform plaintiffs that they were
waiving their statutory rights to litigation in a court” because,
in part, the language of the agreement explicitly stated that the
provision limited the plaintiff’s right to a court action.

Thus,

Plaintiff in the instant action argues that any arbitration
provision less explicit and obvious than the provision enforced
in Gras must be held void as an insufficient waiver of the
plaintiff/consumer’s right to a jury trial.
However, the Court notes, that other Appellate Division

28

decisions have enforced contested arbitration clauses that are
considerably less expansive and explicit than that approved in
Gras.

See, e.g., Griffin v. Burlington Volkswagen, Inc., 411

N.J. Super 515, 518 (App. Div. 2010) (approving arbitration
provision that did not explicitly refer to a “jury trial”
waiver); Kho v. Cambridge Management Group, LLC, N.J. Super.,
2010 WL 4056858 (App. Div., Aug. 4, 2010) (approving arbitration
provision that did not explicitly refer to waiving right to
resolve disputes in court action, or explicitly refer to waiving
statutory claims).

The clearest statement of a rule regarding

the clarity/explicitness requirement in New Jersey Courts appears
to be that found in Curtis v. Cellco Partnership, 413 N.J. Super.
26, 33 (App. Div. 2010).

An arbitration provision will be upheld

if “[t]he arbitration provisions are sufficiently clear,
unambiguously worded, satisfactorily distinguished from the other
Agreement terms, and drawn in suitably broad language to provide
a consumer with reasonable notice of the requirement to arbitrate
all possible claims arising under the contract.”

Id.

Applying this rule to the instant dispute, then, the Court
finds that the arbitration provision located in the ARA narrowly
survives this level of scrutiny.

The arbitration clause was

plainly written, contained within the main body of the contract
rather than hidden in fine print, bore a bolded paragraph
heading, and was mere inches away from Plaintiff’s signature

29

line.

While the provision did not explicitly state that the

Plaintiff agreed to waive any right to try her dispute in a court
of law, the provision clearly states that the arbitrator (and not
a court) would “resolve the dispute.”

The Court finds that such

language is, in the circumstances of this case, minimally
sufficient.
Next, Plaintiff also argues that the disputes at issue do
not fall within the scope of the clause.

Plaintiff objects to

the fact that the arbitration clause does not include the
“arising out of or arising under” language which is “normally
given broad construction by the courts.”

The Court likewise

finds this argument unpersuasive.
"Courts have generally read the terms ‘arising out of' or
‘relating to' a contract as indicative of an ‘extremely broad'
agreement to arbitrate any dispute relating in any way to the
contract."

Griffin v. Burlington Volkswagen, Inc., 411 N.J.

Super 515, 518 (App. Div. 2010).

A dispute or claim “relates to”

the contract whenever the dispute requires "reference to the
underlying contract." Id. at 520.

The Court finds that the ARA’s

arbitration clause, which encompasses “any claim or dispute
between Client and LHDR related to the Agreement or related to
any performance of any services related to this Agreement” is
sufficiently broad and encompasses the Plaintiff’s claims, which
relate to the Law Firm Defendants’ actions pursuant to the ARA.

30

Plaintiff claims that Defendants, by providing the debt
negotiation services to which Plaintiff contracted in the ARA,
violated a New Jersey Statute, and that their performance of the
contracted-for (and allegedly illegal) services violated the CFA,
and various other state and common-law causes of action.

These

claims relate to the Law Firm Defendants’ performance of a
service related to the ARA.

Plaintiff’s rights under these

statutes and other law may be determined by an arbitration.
Finally, the Court finds that the ARA’s arbitration
provision is enforceable as to all of the Law Firm Defendants.
Defendants argue that, in addition to LHDR (the contracting
party) the ARA’s arbitration clause also governs parties
sufficiently related to LHDR under the contract, which includes
Eclipse and the individual officers of the two organizations.

It

is well settled that “agency and contract principles enable
courts to consider nonsignatories as parties to the arbitration
provision.”

Crawford v. West Jersey Health Sys., 847 F. Supp.

1232, 1243 n.14 (D.N.J. 1994).

Even were the Court to consider

Eclipse and the individual Law Firm Defendants to be “independent
contractors” of LHDR (as Plaintiff suggested for the first time
in oral argument), the Court would still find that the ARA
arbitration agreement covered Plaintiffs’ claims against such
defendants under the “equitable estoppel” doctrine discussed in
Bruno v. Mark MaGrann Assoc., 388 N.J. Super. 539, 548 (App. Div.

31

2006) (holding that claims against independent contractor of
signatory to arbitration agreement must be arbitrated because
such claims were sufficiently “closely aligned” with claims
against the contracting party).
The Court will therefore enforce the arbitration agreement
and grant the Law Firm Defendants’ motion to compel.

As a

result, the Court will deny the Law Firm Defendants’ motion to
dismiss as moot.
2.

Arbitration Clause in the AADS

The Bank Defendants also move to compel arbitration,
claiming that, like with the Law Firm Defendants, Plaintiff
agreed to arbitrate all disputes with RMBT and Global (and their
agents) by signing the SPAA, which included by reference the
AADS.
Plaintiff opposes this motion on mainly the same grounds as
she opposes the Law Firm Defendants’ motion.

However, Plaintiff

additionally argues that there is no evidence that Plaintiff
actually agreed to arbitrate with Global and RMBT because she
signed the SPAA before receiving a copy of the AADS.
Defendants respond, first, that there is no evidence in the
record supporting Plaintiff’s claim that she did not receive the
AADS and its arbitration clause until after she had signed and
returned the SPAA.

Defendants point to the Amended Complaint,

which does not affirmatively allege that Plaintiff had not seen

32

the AADS prior to signing the SPAA in September of 2009.

Indeed,

Defendants argue, the Amended Complaint only alleges that
Plaintiff received documents (that she electronically signed and
returned) by e-mail, which included “a Special Purpose Account
application, and account agreement establishing a Special Purpose
Account with Rocky Mountain Bank and Trust . . . .”
23(b).

Am. Compl. ¶

Defendants argue that, by referring to both the SPAA and

an “account agreement”, Plaintiff has affirmatively alleged that
she received the AADS as well as the SPAA prior to electronically
signing the SPAA.
Plaintiff responds that the Amended Complaint does not
affirmatively allege she received the AADS, merely by using the
phrase “account agreement” in paragraph 23(b).

Plaintiff argues

that the phrase “Special Purpose Account application, and account
agreement” merely refers to the SPAA itself, and does not refer
to the AADS, which she claims only arrived later.

Plaintiff

further argues that evidence in the record permits the Court to
determine that Plaintiff first received the AADS in October along
with several other documents sent through first class mail.
Plaintiff claims that the evidence supporting this proposition is
seen in the encoded header line attached to the top of each
document she received via e-mail in September of 2009.

Those

documents did not include the AADS, she argues, demonstrated by
the fact that she is unable to produce a copy of the AADS with

33

such an encoded header line.

See Combined Appendix A129-A137

(including the ARA and the SPAA, but not the AADS).

The Court

concludes that the record is sufficient to establish that
Plaintiff did not receive the AADS in her initial collection of
documents sent via e-mail, and further concludes that Plaintiff’s
vague reference to “agreement” in the Amended Complaint ¶ 23(b)
does not clearly contradict this evidence, as the sentence could
be interpreted to mean that Plaintiff was characterizing the
“Special Purpose Account” document as both an application and an
agreement, which she signed and returned.
Defendants next argue that the SPAA that Plaintiff signed
and returned in September of 2009 did not form an agreement,
because the SPAA (an application) was merely an offer that only
formed an agreement upon Defendant RMBT’s acceptance of
Plaintiff’s offer.

Thus, Defendants argue, Plaintiff received

the AADS prior the formation of the contract, which only occurred
later when RMBT approved her application, sent her the AADS,
among other documents, and Plaintiff’s later compliance and
performance of the terms of the agreement.
The elements of a contract are, simply, offer and acceptance
supported by valuable consideration.
N.J. 247, 261 (2008).

Devaney v. L’Esperance, 195

Thus, whether the SPAA constituted merely

an offer by Plaintiff to form a contract, or an acceptance by
Plaintiff of specific terms offered by Defendants dictates the

34

point at which an agreement was formed between the parties in
this case.

In the circumstances of the instant case, the Court

concludes that the SPAA that was sent to Plaintiff in September
of 2009 constituted an offer to form an agreement that Plaintiff
accepted by electronically signing and returning the form.

An

offer is, simply, “the manifestation of willingness to enter into
a bargain, so made as to justify another person in understanding
that his assent to that bargain is invited and will conclude it.”
Rest. 2d Contracts § 24.
In the case of the SPAA, Plaintiff alleges that she had
called Defendant JG, spoke with Defendant Gavalas, and indicated
her desire to enter into a debt reduction program.
21.

Am. Compl. ¶

She further alleges that she was later contacted by Gavalas

and told that she had been accepted into the program and
discussed particulars of the program that she wanted to pursue.
Id.

§ 22.

After settling on specific details, Plaintiff

received via e-mail a collection of electronic documents, in an
e-mail message with the subject line “Debt Settlement Service
Agreement.”

Combined Appendix. A128.

The attached documents all

appeared to exhibit a request that Plaintiff accept the
particular terms, contained within each.

The SPAA itself begins

with the sentence “I hereby apply for and agree to establish a
special purpose account with Rocky Mountain Bank . . .”
A130.

Id.

There are no further steps required of Plaintiff after she

35

has electronically signed and submitted the completed form.

The

form indicates that there nothing for RMBT to do once the
completed SPAA has been submitted other than opening her account
and begin accepting her deposits.
In these circumstances, the Court concludes that by
completing and returning the SPAA, Plaintiff accepted RMBT’s
offer to open an account, thereby forming an agreement.

See Klos

v. Mobil Oil Co., 55 N.J. 117 (1969) (“In short, there is nothing
for a cardholder or [defendant] American to do after the
application is made other than the latter’s purely mechanical
operation of processing the matter.

In these circumstances we

believe that the sending of the letter, brochure, and application
form constituted an offer by American which could be accepted by
Klos.”).

Consequently, the Court concludes that the agreement to

open an SPA was formed when Plaintiff signed and returned her
SPAA, and that she did so before having been provided with the
terms contained in the AADS, including the arbitration clause.
Defendants next argue that even if Plaintiff did not receive
the AADS until approximately three weeks after the SPA agreement
was formed, the fact that she signed the SPAA, with its
incorporation clause referring to the AADS and its acknowledgment
and agreement to be bound by those conditions in the AADS, and
because she did not object to the arbitration clause when she did
later receive the AADS, and continued to perform under the SPAA

36

after having received it, she manifested her agreement
sufficiently to be later bound by the AADS.
Plaintiff cites to a Ninth Circuit case involving Defendant
Global in a virtually identical fact pattern, in which the
plaintiff had not received the AADS with its arbitration
agreement prior to signing the SPAA, where the Ninth Circuit
affirmed the District Court’s conclusion that Plaintiff had not
agreed to arbitration.

Carlsen v. Global Client Solutions,

L.L.C., 423 F. App’x 697 (9th Cir. 2011). (“The district court
did not clearly err in finding that there was no agreement to
arbitrate.”).

The District Court in that action held that “It

goes without saying that a person should at least have an
opportunity to review the terms of a contract before deciding to
execute a document which binds him or her to those terms.”
Carlsen v. Global Client Solutions, L.L.C., 2010 WL 786254 at *3
(E.D. Wash., Mar. 4, 2010).
Defendants, by contrast, cite to a different case, also
involving Defendant Global, where a New Jersey court similarly
was forced to confront the question of whether a Plaintiff who
signed the SPAA, with its clear incorporation clause, prior to
receiving the AADS manifested asset to be bound in the
unpublished case of Festa v. Capital One Bank, L-4851-10
(unpublished) Sup. Ct. Law Div., Apr. 21, 2011. (Bratter Decl.
Ex. A, Docket Item 73).

There, again under virtually identical

37

facts as here, the third-party Plaintiff Frank Festa claimed that
Global’s arbitration agreement was not enforceable because he had
not seen it prior to signing the SPAA.

The Court rejected

Plaintiff’s argument.
Whether or not Festa actually read or
understood
the
‘Account
Agreement
and
Disclosure Statement’ at the time that he
signed the Application is irrelevant. Legally,
when
Festa
signed
the
Application,
he
acknowledged that he accepted the terms and
provisions
therein,
including
the
incorporation of the ‘Account Agreement and
Disclosure Statement’ and its arbitration
clause. See Restatement (Second) of the Law
of Contracts § 211. Therefore if Festa signed
the Application, he is legally bound by the
terms contained therein, whether or not he
truly understood what he was signing.
Id. at *4.7
Plaintiff argues in her sur-reply that Festa was wrongly
decided because it incorrectly applied the law regarding
incorporation clauses, citing to Alpert v. Goldberg, 410 N.J.
Super. 510 (App. Div. 2009), for the proposition that greater
specificity is required to incorporate absent clauses into a
contract.

Defendants respond in their sur-sur-reply that Alpert

7

The Court notes that Defendants Global and RMBT seem to
be accustomed to making this argument that the late-arriving
conditions in the AADS should bind the consumer, perhaps because
they so frequently fail to send a copy of the AADS until after
the consumer/debtor has already committed to its terms via the
incorporation clause in the SPAA. See, e.g., Davis v. Global
Client Solutions, LLC, 2011 WL 4738547 at *1 (W.D. Ky. Oct. 7,
2011); Webster v. Freedom Debt Relief, LLC, Civ. No. 10-1587
(N.D. OH., July 17, 2011) (Magistrate Recommendation adopted by
District Court on August 4, 2011, 2011 WL 3422872).
38

is distinguishable because it was limited to incorporation
clauses in an attorney/client relationship signing a retainer
agreement, which is not present here.
In Alpert, a law firm sued its former client for unpaid
legal fees and various costs that were included in a “master
retainer agreement” incorporated by reference into the
client/defendant’s retainer agreement but not expressly described
in the agreement.

Id. at 523-24.

On appeal, the appellate

division held that the terms included in the “master retainer
agreement” could not be enforced because they were not properly
incorporated into the agreement.

“In order for there to be a

proper and enforceable incorporation by reference of a separate
document, the document to be incorporated must be described in
such terms that its identity may be ascertained beyond doubt and
the party to be bound by the terms must have had ‘knowledge of
and assented to the incorporated terms.’” Id. at 533.
The Court disagrees with Defendants, finding that Alpert is
not distinguishable on the basis of the fact that the plaintiff
seeking to impose the incorporated terms was an attorney.

The

Alpert court was clear that the proposition regarding
incorporation of absent terms by reference was a question of
general contract law, not specific to the attorney-client
relationship.

See Id. at 534 (citing cases from other

jurisdictions repeating the requirement, in contexts unrelated to

39

the attorney-client relationship).
Moreover, the Court disagrees with the unpublished decision
in Festa, which in any event is not a decision of the New Jersey
Supreme Court and is not binding upon this federal Court in
determining New Jersey law.

Festa’s premise that an arbitration

clause may be contained in an undisclosed document that has been
incorporated into a contract only by reference is incorrect.

It

is clear that, at the very minimum, an arbitration clause must be
made known to the contracting party in all detail when the
contract is made.

An undisclosed provision for arbitration does

not comply with the minimal requirements of being “sufficiently
clear, unambiguously worded, satisfactorily distinguished from
the other Agreement terms, and drawn in suitably broad language
to provide a customer with reasonable notice of the requirement
to arbitrate all possible claims arising under the contract,” as
required by Curtis v. Cellco Partnership, supra, 413 N.J. Super.
at 33.
Applying the rule from Alpert, the Court finds that the
arbitration clause in the AADS was not effectively incorporated
into the SPAA that Plaintiff signed.

While the SPAA clearly and

unambiguously referred to the AADS by name (such that its
“identity may be ascertained beyond doubt”), the party to be
bound, Guidotti, does not appear to have had “knowledge of and
assented to the incorporated terms.”

40

If, as Defendants concede

is possible, Plaintiff had never seen the AADS at the time she
applied for the SPA, she could not have had knowledge of the
existence of the arbitration clause or its specific conditions,
even if she assented to its incorporation.

Thus, the Court finds

that the clause was not properly incorporated into the SPAA, and
cannot now bind Plaintiff to arbitrate her claims against the
Bank Defendants.8
3.

Motion to Stay

As Court has decided to grant the Law Firm Defendants’
motion to compel arbitration but deny the Bank Defendants’
motion, the Court must therefore confront whether to grant the
remaining Moving Defendants’ motion to stay the action pending
the arbitration of the Law Firm Defendants’ claims.
The decision to grant a stay pending arbitration of related
claims and parties is within the Court’s discretion.

Moses H.

Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 20 n.23 (“in
some cases, of course, it may be advisable to stay litigation
among the non-arbitrating parties pending the outcome of the
arbitration.

That decision is one left to the district court . .

8

Additionally, even if the Court were inclined to find the
arbitration clause effectively incorporated, the Court would find
that the application of the absent terms, in circumstances
raising the inference that it was a business practice of the Bank
Defendants to withhold the AADS and its terms from the
contracting consumer until after the consumer had signed the SPAA
(based only on the cases cited by the Parties in this dispute,
Plaintiff Guidotti appears to be the fifth customer so treated by
these Defendants), would be unconscionable.
41

. as a matter of its discretion to control its docket.”).

Courts

in this district that have considered the issue have previously
entered such stays.

“Where significant overlap exists between

parties and issues, courts generally stay the entire action
pending arbitration.”

Crawford v. West Jersey Health Sys., 847

F. Supp. 1232, 1243 (D.N.J. 1994) (collecting cases).
Section 3 of the FAA provides District Courts with the
authority to enter a stay in such circumstances.

9 U.S.C. § 3.

The Court’s primary considerations are fairness to the parties
and judicial efficiency.

See CTF Hotel Holdings, Inc. v.

Marriott Intern., Inc., 381 F.3d 131, 139 (3d Cir. 2004).

In the

instant case, the Court concludes that on balance, the
considerations of fairness to the parties and judicial efficiency
weigh against staying the balance of Plaintiff’s claims in this
Court pending her arbitration of her claims with the Law Firm
Defendants.

As Plaintiff’s claims against the Law Firm

Defendants relates to a different contract and distinct services
and payments, any risk of res judicata or collateral estoppel is
minimal in this action.

Additionally, the Court concludes that

staying Plaintiff’s claims against the other Defendants in this
Court not subject to a valid arbitration clause invites problems
of staleness, litigation fatigue, spoliation of evidence, and
potential insolvency of the parties.

Consequently, the Court

declines to exercise its discretion to enter a stay of

42

Plaintiff’s claims pending resolution of her arbitration with the
Law Firm Defendants.

The Court can revisit this issue if future

events warrant a temporary stay.
B. Motions to Dismiss For Lack of Personal Jurisdiction
Having concluded that the Law Firm Defendants’ motion to
compel arbitration will be granted, their motion to dismiss will
be denied as moot.

However, as the Court has decided to deny the

Bank Defendants’ motion to compel and the Remaining Defendants’
motion to stay, it will now determine which, if any, Defendants
and claims should be dismissed pursuant to Fed. R. Civ. P.
12(b)(2) or 12(b)(6).
1.

Personal Jurisdiction Standard of Review

Defendants move to dismiss on the grounds of lack of
personal jurisdiction and for failure to state a claim.

The

Court will begin by examining the motions to dismiss for lack of
personal jurisdiction.
To exercise personal jurisdiction over a defendant, a
federal court must undertake a two-step analysis.

First, the

court must apply the relevant state long-arm statute to see if it
permits the exercise of personal jurisdiction. See Pennzoil
Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir.
1998).

Next, the court must determine whether exercising

personal jurisdiction would violate federal due process.

See IMO

Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998);

43

Pennzoil, 149 F.3d at 200.

In New Jersey, this inquiry is

combined into a single step because the state's long-arm statute,
N.J. Civ. Prac. R. 4:4-4, permits the exercise of personal
jurisdiction to the fullest limits of due process permitted by
the Fourteenth Amendment.

See DeJames v. Magnificence Carriers,

Inc., 654 F.2d 280, 284 (3d Cir. 1981); Decker v. Circus Circus
Hotel, 49 F. Supp. 2d 743, 745 (D.N.J. 1999).
Once a party raises the defense of lack of personal
jurisdiction, the burden is on the plaintiff to show that the
defendant himself has purposefully directed his activities toward
the residents of the forum state or otherwise “purposefully
availed itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of
its laws.”

See Hanson v. Denckla, 357 U.S. 235, 253 (1958); see

also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).
A plaintiff may not rely on the pleadings alone in order to
withstand a motion to dismiss for lack of personal jurisdiction.
See Stranahan Gear Co., Inc. v. NL Indus., 800 F.2d 53, 58 (3d
Cir. 1986).

Therefore, the plaintiff must come forward with

facts sufficient to establish by a preponderance of the evidence
that the district court has personal jurisdiction over the
defendant.

Time Share Vacation Club v. Atlantic Resorts, Ltd.,

735 F.2d 61, 65 (3d Cir. 1984); see also IMO Indus., 155 F.3d at
257 (“the plaintiff bears the burden of proving that personal

44

jurisdiction is proper”); Gehling v. St. George's Sch. of Med.,
773 F.2d 539, 542 (3d Cir. 1985) (“[P]laintiff bears the burden
of establishing with reasonable particularity sufficient contacts
between the defendant and the forum state to support
jurisdiction.”).
2.

Bank Defendants

The Bank Defendants begin their motion to dismiss by arguing
that Plaintiff has failed to allege or point to evidence
supporting the Court’s exercise of personal jurisdiction over
these four out-of-state defendants.

Defendants argue that the

mere fact that Plaintiff applied for a bank account at RMBT does
not indicate sufficient minimum contacts to establish specific
jurisdiction over any of the Defendants in this group.
Plaintiff responds that Defendant RMBT is party to a
contract with Plaintiff in the state of New Jersey.
Additionally, Plaintiff claims that Defendants Global and RMBT
admit to having approximately 2,000 New Jersey clients, citing,
apparently, to the Notice of Removal in this action. [Docket Item
1.]
Defendants respond that the notice of removal was filed
solely by LHDR, and is therefore not an admission by any of the
Bank Defendants.

Whether or not Defendant LHDR has 2,000 New

Jersey clients is not determinative of whether the Bank
Defendants had sufficient contacts with New Jersey.

45

Additionally, Defendants cite to Arms, Inc. v. Sedona Research,
Inc., Civ. No. 93-3601 1993 WL 534361 at *3 (D.N.J. Dec. 16,
1993) for the proposition that a “contract between a forum
resident and an out-of-state party will not automatically
establish sufficient contacts with the forum to justify in
personam jurisdiction.” (Citing Burger King Corp. v. Rudzewicz,
471 U.S. 462, 478 (1985)).
This issue is a close question, as to Defendants Global and
RMBT.

Merely having accepted Plaintiff’s application for a bank

account would not seem to be enough to establish the “purposeful
availment” standard of personal jurisdiction.

However, Plaintiff

alleges greater contacts with the forum state than merely the
existence of a contract.

In the Amended Complaint, she clearly

alleges that Defendant Gavalas and JG, working within New Jersey,
“would receive phone calls in response to the advertising and
marketing by LHDR, Eclipse, Global, Rocky and JG from inquiring
debtors.

JG received calls not only from New Jersey residents

such as the lead plaintiff, but from different parts of the
country as the phone calls were transferred around the country on
a round robin basis to other front-end entities such as JG.”
Compl. ¶ 65.

Am.

This allegation would seem to indicate that Global

and RMBT had affirmatively reached an agreement with JG to
channel leads from New Jersey, among other states, toward them,
thereby purposefully availing themselves of the forum sufficient

46

to satisfy due process.
As Plaintiff bears the burden of not only alleging
sufficient contacts, but by submitting evidence sufficient to
prove such contacts by a preponderance, she must do more than
merely allege such a scheme.

The Court finds, however, that

Plaintiff has submitted minimally sufficient evidence to meet
this burden.

In support of the contention that Global and RMBT

were purposefully availing themselves of the forum, Plaintiff
attaches deposition testimony from Global and RMBT officers
Hendrix and McClure, taken in a different civil action.
Combined Appendix, A311-A389.

Pl.’s

In those depositions, McClure,

speaking on behalf of Defendant RMBT admitted paying a marketing
fee to Global to attract debt settlement customers, such as
Plaintiff, outside of RMBT’s geographic area.
A333:20-A335:9.

McClure Dep.

Global, in turn, would solicit referral of such

clients, or “leads” from debt settlement companies such as LHDR,
aware that such companies were soliciting clients from nearly any
state in the nation, including states with regulatory
restrictions on the business.

Hendrix Dep. A382:9-384:9.

Finally, Plaintiff attaches a sample marketing and clientreferring agreement produced by LHDR, that indicated that it
would actively solicit and accept business from consumers in New
Jersey, among other states.
Appendix at A112.

LHDR Marketing Agreement, Combined

The Court finds that this evidence is

47

sufficient to meet Plaintiff’s burden of supporting her
allegations of purposeful availment sufficient to meet the
requirements of due process as to Defendants Global and RMBT.
As to Defendants Hendrix and McClure, Plaintiff has not
sufficiently alleged contacts with New Jersey as to them
individually to satisfy due process, and the two will therefore
be dismissed for lack of personal jurisdiction.

Plaintiff’s

allegations of personal jurisdiction as to Hendrix and McClure
are exclusively based on their actions as out-of-state corporate
officers, rather than as acting in their individual capacity.
However, “jurisdiction over ... [individual] defendants does not
exist simply because they are agents or employees of
organizations which presumably are amenable to jurisdiction in”
the forum state.
(3d Cir. 2000).

Nicolas v. Saul Stone & Co., 224 F.3d 179, 184
Instead, “[e]ach defendant’s contacts with the

forum state must be assessed individually.”

Id. at 781 n.13.

Thus, Plaintiff’s claim that Defendants Hendrix and McClure are
subject to this Court’s in personam jurisdiction simply because
they acted as officers of Global and RMBT is insufficient.
To the extent that Plaintiff argues that personal
jurisdiction can be established over these individual defendants
on the basis of their vicarious or conspiracy liability with the
other in-forum Defendants the Court observes that New Jersey has
never recognized a “conspiracy theory of jurisdiction.”

48

See

Lasala v. Marfin Popular Bank Public Co., Ltd., Civ. No. 09-968,
2010 WL 715482 at *3 (D.N.J. Mar. 1, 2010).

Thus, the Court will

dismiss Hendrix and McClure for lack of personal jurisdiction.
3.

The Remaining Defendants

As to the remaining moving Defendants, four of the five
defendants move to dismiss for lack of personal jurisdiction
(LSSG, CMIT, JEM, and LYNCH, but not LHP).

The Court notes that

Plaintiff has alleged nothing more than a relationship via
conspiracy or vicarious contacts with the forum state as to any
of these entities.

The Court will therefore grant the motion to

dismiss as to Defendants LSSG, CMIT, JEM and LYNCH.
C. Motions to Dismiss For Failure to State a Claim
Finally, the Court turns to the motions to dismiss for
failure to state a claim pursuant to Fed. R. 12(b)(6).

As the

Court has already determined that all moving Defendants should be
dismissed from the action save the Bank Defendants Global and
RMBT as well as Defendant LHP, which did not move to dismiss for
lack of personal jurisdiction, the Court will now turn to assess
whether Plaintiff’s Amended Complaint sufficiently pleads any
cause of action as to Global, RMBT and LHP sufficient to
withstand Defendants’ 12(b)(6) motion.
1.

Rule 12(b)(6) Standard of Review

In order to give defendant fair notice, and to permit early
dismissal if the complained-of conduct does not provide adequate

49

grounds for the cause of action alleged, a complaint must allege,
in more than legal boilerplate, those facts about the conduct of
each defendant giving rise to liability.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a) and
11(b)(3).

These factual allegations must present a plausible

basis for relief (i.e., something more than the mere possibility
of legal misconduct).
1951 (2009).

See Ashcroft v. Iqbal, 129 S.Ct. 1937,

In its review of a motion to dismiss pursuant to

Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all
factual allegations as true and construe the complaint in the
light most favorable to the plaintiff."

Phillips v. County of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
The assumption of truth does not apply, however, to legal
conclusions couched as factual allegations or to “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements.”

Iqbal, 129 S.Ct. at 1949.

The Court, in evaluating a Rule 12(b)(6) motion to dismiss
for failure to state a claim, may consider the complaint,
exhibits attached thereto, matters of public record, and
undisputedly authentic documents if the plaintiff's claims are
based upon those documents.

See Pension Benefit Guar. Corp. v.

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

50

2.

The Bank Defendants Global and RMBT

The Bank Defendants move to dismiss on the grounds that
Plaintiff fails to state a claim for several reasons.

The first

argument in this area is that the Global and RMBT were not “debt
adjusters” sufficient to be sued under the NJDACCA, as defined
under N.J. Stat. Ann. § 17:16G-1(c)(1).
“Debt adjuster” means a person who either (a)
acts or offers to act for a consideration as
an intermediary between a debtor and his
creditors for the purpose of settling,
compounding, or otherwise altering the terms
of payment of any debts of the debtor, or (b)
who, to that end, receives money or other
property from the debtor, or on behalf of the
debtor, for payment to, or distribution among,
the creditors of the debtor.
Id.
Defendants argue that they do not fit the definition of debt
adjusters because they were not acting as intermediaries between
Plaintiff and her creditors.

This is a misreading of the

statute, which clearly states that one can be a debt adjuster,
even without being an intermediary, so long as one is receiving
money from the debtor to pay creditors “to that end”, meaning for
the purpose of adjusting a debt.

A person who, “to that end [for

the purpose of settling, compounding, or otherwise altering the
terms of payment on behalf of the debtor], receives money or
other property from the debtor, or on behalf of the debtor, for
payment to, or distribution among, the creditors of the debtor.”
Id.

Defendants’ insistence on reading the requirement of being
51

an intermediary into the statute is unnecessary and contrary to
the structure of the statute.

The Court finds that Plaintiff has

sufficiently alleged that Defendants RMBT and Global received
Plaintiff’s money; the purpose of receiving Plaintiff’s money was
to effectuate Plaintiff’s debt negotiation plan with LHDR and
Eclipse, with the eventual intent that the money be distributed,
in part, among Plaintiff’s creditors.

The Court finds that these

allegations are sufficient to meet the statutory definition of
“debt adjuster” under N.J. Stat. Ann. § 17:16G-1(c)(1)(b).
Defendants additionally argue that Plaintiff has
insufficiently alleged facts with sufficient particularity
necessary to state a claim under the CFA, but this argument is
continent on Defendants winning the NJDACCA “debt adjuster”
action.

Specifically, Defendants argue that Plaintiff fails to

allege unlawful conduct on the part of Defendants, a necessary
element of a CFA claim.

As the Court has determined that

Plaintiff’s NJDACCA claim will not be dismissed, however, the
Court must also determine that Plaintiff has sufficiently alleged
unlawful conduct on the part of Defendants.

Thus, Defendants’

arguments regarding the CFA will also be dismissed.
Defendants also argue that Plaintiff fails to adequately
plead a NJ RICO claim because Plaintiff alleges only the
threadbare elements of the claim and Plaintiff did not include a
RICO case statement.

The Court disagrees that Plaintiff does not

52

adequately allege facts sufficient to state a claim for a
violation of NJ RICO, noting that she has alleged that RMBT and
Global were associated with and participated in the conduct of
the affairs of an enterprise (namely, illegal debt adjustment
activities), consisting of other Defendants such as LHDR and
Eclipse, and that Global and RMBT participated through a pattern
of racketeering activity, consisting of at least two related acts
of acting as a debt adjuster.

To the extent Defendants claim

that Plaintiff’s failure to follow the model established in the
District’s RICO case statement, Defendants cite to no authority
for the proposition that including a RICO case statement is a
necessary requirement to state a claim under the New Jersey RICO
statute.

Instead, a judge has discretion to require a plaintiff

to file a RICO case statement pertaining to a federal RICO claim,
in the form set forth in Appendix O of the Local Civil Rules,
entitled “Optional RICO Case Order.”

The Court therefore finds

that Plaintiff adequately plead facts to state a claim under the
NJ RICO at this stage in the litigation.
The Court likewise finds Plaintiff’s common law causes of
action to be sufficiently plead to state a cause of action.
Thus, the Court will not dismiss Plaintiff’s claims for civil
conspiracy, unjust enrichment, breach of fiduciary duty,
unconscionability, and common law fraud.
Finally, Defendants gesture somewhat weakly at a

53

constitutional challenge.

Defendants state merely that if the

New Jersey Debt Adjustment Act is applied to their activities in
this action, it would violate their rights under the Contract
Clause, the Dormant Commerce Clause, and the Equal Protection and
Due Process Clauses of the Fourteenth and Fifth Amendments.
Defendants provide no explanation in their brief how these
violations would come about, and cite no authority in support of
their challenge.

The Court will reject this challenge to the

application of the statute.
It is well established that the Contract Clause, found in
Article I, § 10 of the Constitution, does not apply to
prospective state action.

American Exp. Travel Rel. Svcs. Co.,

Inc. v. Sidamon-Eristoff, 755 F. Supp. 556, 611 (D.N.J. 2010).
Thus, because Plaintiff’s alleged contracts with Defendants were
created long after the enactment of the New Jersey Debt
Adjustment Act, the clause offers no protection to Defendants.
Similarly, the Court denies Defendants’ challenge to the
application of the statute under the Commerce Clause.

The Court

finds that Defendants have not established that the statute
burdens interstate commerce excessively, pursuant to Pike v.
Bruce Church, Inc., 397 U.S. 137, 142 (1970).
Likewise, the Court denies Defendants’ challenge to the
application of the statute under the Due Process and Equal
Protection Clauses.

54

When local economic regulation is challenged
solely as violating the Equal Protection
Clause, the Court consistently defers to
legislative
determinations
as
to
the
desirability
of
particular
statutory
discriminations.
Unless a classification
trammels fundamental personal rights or is
drawn upon inherently suspect distinctions
such as race, religion, or alienage, our
decisions presume the constitutionality of the
statutory discriminations and require only
that
the
classification
challenged
by
rationally related to a legitimate state
interest.
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

The

Supreme Court has previously upheld a similar debt adjusting
statute as the New Jersey statute on an equal protection
challenge.

See Ferguson v. Skrupa, 372 U.S. 726, 732 (1963).

As

Defendants offer no reason to distinguish Ferguson, nor any
argument why the Court should set aside the presumption of
constitutionality of this economic regulation, the Court will
deny Defendants’ challenge to the statute under the Equal
Protection Clause.
3.

Rule 12(b)(6) as to Defendant LHP

As to Defendant LHP, by contrast, the Court grants the
motion to dismiss for failure to state a claim as to it, for the
following reasons.

Plaintiff makes no specific allegations about

actions taken by LHP, any agreement that it entered into with any
other Defendant, or other wrongs committed by LHP.

The only

specific allegation as to LHP in the Amended Complaint is that it
shares an address with LHDR’s New Jersey office, and that Nicely
55

is listed as a partner for the firm.

This is insufficient to

state a claim under any of the asserted theories of recovery, and
LHP will, consequently, be dismissed.
D.

Non-moving Defendants

Finally, Defendants JG, Gavalas, Reliant Account Management
LLC, and Chaya ask to join the motions to dismiss of the Bank
Defendants and the other moving Defendants.

As stated on the

record at the hearing on these motions, the Court will not permit
these parties to join because Plaintiff has not been offered a
chance to respond to specific reasons why these defendants should
be dismissed, and the differences between these Defendants and
the moving Defendants (e.g., their contacts with the forum, and
the specific allegations in the Complaint as to each) are
significant.

IV.

CONCLUSION
For the reasons stated above, the Court will grant the Law

Firm Defendants’ motion to compel arbitration and consequently
deny the Law Firm Defendants’ motion to dismiss as moot.

Thus,

the Court will dismiss from the action Defendants Legal Helpers
Debt Resolution, LLC, Eclipse Servicing, Inc., Macey, Aleman,
Searnes, Hyslip, Nicely, Duncan, and Hedaya.

The Court will

deny, however, the Bank Defendants’ motion to compel arbitration,
having concluded that Plaintiff did not manifest an intention to

56

be bound by the arbitration clause because it was insufficiently
incorporated into the agreement she signed.

The Court will,

likewise, deny the remaining Defendants’ motion to stay pending
arbitration.
As to the motions to dismiss, the Court will grant the
motions to dismiss for lack of personal jurisdiction as to
Defendants Hendrix, McClure, Legal Services Support Group, LLC,
Lynch Financial Solutions, JEM Group, and Century Mitigations.
The Court will also grant the motion to dismiss for failure to
state a claim of Defendant Legal Helpers, P.C.

However, the

Court will deny the motion to dismiss for lack of personal
jurisdiction or failure to state a claim by Defendants Global
Client Solutions and Rocky Mountain Bank and Trust.

The

accompanying order will be entered.

December 20, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

57