United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Credit Acceptance
Corporation's (“Credit Acceptance”) Motion to
Compel Arbitration and Stay Proceedings, in a contract
dispute asserted by Plaintiffs Bill and Sara Greiner.
Specifically, Credit Acceptance asks the Court to enforce an
arbitration clause included in a contract the parties
allegedly entered into for the purchase of an automobile, and
to stay this action until arbitration has been completed.
Because the Greiners contend that their signatures on the
arbitration agreement were a forgery, the Court will reserve
judgment on Defendant Credit Acceptance Corporation's
Motion to Compel Arbitration and Stay Proceedings (Doc. 21)
until the parties present evidence at an evidentiary hearing
or jury trial.
Factual and Procedural Background
Bill and Sara Greiner filed a complaint against Credit
Acceptance, Equifax Information Services, LLC, Trans Union,
LLC, and Experian Information Solutions, Inc. alleging
various violations of the Fair Credit Reporting Act. In
short, the Greiners allege that Bill Greiner purchased an
automobile from Mondragon Auto Sales in Pueblo, Colorado. The
purchase price of the vehicle was $9, 739.00. Greiner
received credit for a trade in vehicle in the amount of $1,
800, and paid the remaining balance of $7, 939.00 in cash.
Because he paid cash for the vehicle, he did not apply for,
or authorize anyone to apply for financing for the purchase
of the vehicle. However, someone did apply for financing in
Bill and Sara Greiner's names using their identity.
“As a result, Defendant Credit Acceptance opened an
account in the Plaintiffs' names without the knowledge or
authority of either Plaintiff.”
Acceptance then filed this present motion, seeking to compel
arbitration of the Greiner's underlying claims. Credit
Acceptance argues that the Greiners signed a valid
arbitration agreement that encompasses all of their claims.
In their response, the Greiners argue that the arbitration
agreement is not enforceable because their signatures were
forged. Both Bill and Sara Greiner attached affidavits to
Greiner avers in his affidavit that he and his wife are
victims of identity theft. In particular, he states that he
purchased a vehicle from Mondragon Auto Sales in full, so no
financing was needed to purchase the vehicle. However,
without his or his wife's knowledge or authority, someone
completed a Retail Installment Contract using their names and
personal identifiers. The Retail Installment Contract was
regarding an auto loan in the amount of $10, 043.99.
states that the “signature on the Retail Installment
Contract is clearly a forgery of my signature.”
“The identity thief signed my name as ‘William
Greiner.' While my name was William Greiner at that time,
I always signed my name as ‘Bill Greiner' and never
signed my name as ‘William Greiner.'
” Greiner believes that the owner or an
employee of Mondragon Auto Sales forged his and his
wife's signatures to the Retail Installment Contract in
order to obtain funding from Credit Acceptance in Bill
Greiner's name but for his or their own purposes. Sara
Greiner avers in her affidavit essentially the same facts.
Acceptance contends that prior to the date of purchase
(October 14, 2011), the Greiners provided a credit
application and supporting documentation to Credit Acceptance
for its consideration and approval of the transaction. Credit
Acceptance must approve the credit application and terms of
the transaction before it will accept Mondragon Auto
Sales' assignment of the Contract to Credit Acceptance.
The credit application includes the personal and employment
information for both William and Sara Greiner.
support of the application and financing, Credit Acceptance
received three letters from the Social Security
Administration addressed to Bill Greiner. Credit Acceptance
also received a bank statement from Canon National Bank for
the period August 16, 2011 to September 15, 2011, with
“Sara D. Greiner” and “William L.
Greiner” listed as the names on the account. According
to Credit Acceptance, the bank statement reflects deposits
from the U.S. Treasury in dollar amounts corresponding to
those identified in the three Social Security Administration
thereafter, Credit Acceptance received the first monthly
payment on the account by form of a check from the
Greiner's account with their signatures. Credit
Acceptance timely received three identical checks for the
following three months as well. According to Credit
Acceptance, this evidence shows that the Greiners were not
victims of identity theft as they claim.
first task of a court asked to compel arbitration of a
dispute is to determine whether the parties agreed to
arbitrate that dispute.” Arbitration is a contractual
matter, and “a party cannot be required to submit to
arbitration any dispute which he has not agreed so to
submit.”Whether the parties agreed to arbitrate a
dispute is an issue for judicial determination unless the
parties clearly and unmistakably provide
otherwise. Whether there is an enforceable
arbitration agreement is a matter of state contract law to be
decided by the Court.
the Greiners allege that the parties did not agree to
arbitrate the dispute because they never signed the
arbitration agreement. Significantly, the Greiners both
signed an affidavit, under penalty of perjury, stating that
they did not sign the arbitration agreement and their
signatures on the agreement are a forgery. Credit Acceptance
disputes this allegation and put forth evidence tending to
establish that the Greiners voluntarily signed the contract,
and proceeded to make payments on the loan from their
personal bank account.
party to a purported arbitration agreement attacks the
“making” of the agreement, it is for the Court to
decide whether the agreement was formed, not the
arbitrator. However, the Court has been unable to
locate clear Tenth Circuit precedent regarding the mechanics
of how the Court should determine the factual issue of
whether the signatures on the disputed arbitration agreement
were forged. The Greiners seem to indicate that a jury trial
is the proper method to determine the issue of forgery
pursuant to 9 U.S.C. § 4. Credit Acceptance, on the
other hand, acknowledged that it was ...