February 19, 2010
FIRST ATLANTIC FEDERAL CREDIT UNION, A FEDERALLY CHARTERED CORPORATION, PLAINTIFF-RESPONDENT,
PINE BELT AUTOMOTIVE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT,
ALLIED SOLUTIONS, L.L.C., THIRD-PARTY DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-830-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2009
Before Judges Wefing, Grall and LeWinn.
Defendant Pine Belt Automotive, Inc. appeals from a trial court order denying its motion to dismiss plaintiff's complaint and to compel arbitration. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant is an automobile dealer, in the business of selling new and used vehicles. Plaintiff First Atlantic Federal Credit Union is a federally-chartered credit union, which provides consumer loans to members. In October 2003, Pine Belt and First Atlantic executed a Dealer Agreement, setting forth the terms under which First Atlantic would provide non-recourse financing for Pine Belt customers. Pine Belt would prepare retail installment contracts for potential customers and submit the credit applications to a third-party processor for its review. The third-party processor would review the application and perform an underwriting analysis, including a review of the individual's credit history and a verification of employment and residence, to determine if the customer qualified for credit. If the processor was satisfied as to the credit-worthiness of the applicant, it would forward the package to First Atlantic, which conducted its own review. If First Atlantic was satisfied everything was in order, it would approve the transaction and purchase the loan from Pine Belt.
Under the terms of the Dealer Agreement, Pine Belt would not be liable for repayment "if the reason for non-payment relates solely to the creditworthiness of any maker, co-maker or grantor who is party" to the loan. Pine Belt also made a representation and warranted that "[t]o the knowledge of [Pine Belt], all of the statements contained in the purchaser's credit application submitted are true and correct in all respects, and the Dealer has no knowledge of any matters not disclosed that may impair the credit of the purchaser of the vehicle."
The Dealer Agreement also included an arbitration clause.
Any controversy, dispute, or claim of whatsoever nature arising out of, or in connection with, or in relation to the interpretation, performance or breach of this Agreement, including any claim based on contract, tort or statu[t]e, shall be resolved by final and binding arbitration conducted in Eatontown[,] New Jersey. The arbitrator shall determine which is the prevailing party and shall include the award of the costs and reasonable attorney's fees of the party's attorneys. The American Arbitration Association ("AAA") shall serve, and the rules of practice and procedure of the AAA will apply. All arbitration hearings shall be commenced within ninety (90) days after the demand for arbitration.
In addition, the Dealer Agreement provided that it "supersede[d] all prior agreements among the parties with respect to the subject matter hereof and constitutes along with the Loan Document Package a complete and exclusive statement of the terms of the agreement among the parties with respect to its subject matter."
First Atlantic had another program, instituted in September 2003, known as the Instant Approval Program, under which it would provide financing for Pine Belt customers. First Atlantic used this program to expedite the credit approval process for customers deemed most qualified. First Atlantic set specific criteria for participation in the Instant Approval Program. These included: the individual had to possess a credit score of no less than 600; have a minimum of five trade-lines, one of which had been open for at least five years; have a stable employment history; and a prior satisfactory auto loan. Individuals who had gone through a bankruptcy proceeding or repossession were not eligible; nor were those who proposed to have someone else co-sign on the loan. In addition, the application had to be fully completed and executed.
In February 2008, First Atlantic filed suit, alleging that Pine Belt had misused the Instant Approval Program, submitting inaccurate credit reports and Instant Approval Forms to obtain financing for more 1,000 customers who would otherwise not have qualified. A significant number of those defaulted on their loans. It demanded that Pine Belt make it whole for the losses it had experienced as a result.
In lieu of filing an answer, Pine Belt filed a motion to dismiss the complaint and demanding arbitration, citing the provision in the Dealer Agreement set forth above. First Atlantic responded to this motion by filing a cross-motion for summary judgment, supported by a certification of E. John Culp, II, the president and chief executive officer of First Atlantic. In that certification, Culp set forth the procedures to be used under the Dealer Agreement and contrasted them with the procedures applicable to the Instant Approval Program. He described the Instant Approval Program as a "specialized" one that was "separate and distinct from any Dealer Agreements." He noted that because it was targeted for the "most qualified buyers," it did not utilize third-party processors but permitted a dealer to obtain and pass upon the credit report of a potential buyer. He noted that when First Atlantic received a loan package with a credit report and a completed Instant Approval Form indicating that the customer satisfied the criteria for the Instant Approval Program, First Atlantic would purchase the loan. He also noted that transactions under the Instant Approval Program were "processed separately and in addition to the ordinary flow of contracts offered under the Dealer Agreements."
First Atlantic filed its motion and supporting certification on April 9, 2009. The trial court heard the matter on April 17, 2009. Pine Belt did not submit any responding papers in the interim. After hearing oral argument, the trial court gave its oral opinion, setting forth its reasons for denying Pine Belt's motion. Pine Belt has appealed from the order subsequently entered by the trial court.*fn1
On appeal, Pine Belt contends that the trial court erred in denying its motion to compel arbitration in light of the provisions of the Dealer Agreement. "An agreement to arbitrate should be read liberally in favor of arbitration." Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993). Private parties, however, can only be compelled to arbitrate to the extent they have agreed to do so. Singer v. Commodities Corp. (U.S.A.), 292 N.J. Super. 391, 402-03 (App. Div. 1996). A court should determine and enforce an agreement to arbitrate based on "the contractual terms, the surrounding circumstances, and the purpose of the contract." Marchak, supra, 134 N.J. at 282. A court may not broaden the scope of an agreement to arbitrate beyond that which the parties have voluntarily set. Singer, supra, 292 N.J. Super. at 403.
Here, the arbitration provision applies to an issue which "arise[s] out of, or in connection with, or in relation to the interpretation, performance or breach of this Agreement...." Thus, the scope of the arbitration provision is defined by the scope of the Dealer Agreement.
Further, the Culp certification laid out clearly the differences between the protocols for loan approvals under the Instant Approval Program and under the Dealer Agreement. There was nothing before the trial court to refute his statement that the two programs operated separately and distinctly. There was thus no basis for the trial court to import into the Instant Approval Program the arbitration provisions contained in the Dealer Agreement.
Pine Belt also contends that it was denied the opportunity to contest Culp's assertion that the Instant Approval Program and the Dealer Agreement operated separately. Pine Belt stresses that it filed a motion to dismiss plaintiff's complaint and that such a motion should be decided on the basis of the pleadings alone, without regard to other materials. R. 4:6-2(e).
This assertion overlooks the concluding sentence of Rule 4:6-2:
If, on a motion to dismiss based on the defense numbered (e), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such motion.
Pine Belt never requested the opportunity to submit responding papers to First Atlantic's motion and made no complaint to the trial court at the argument on the motion that it was improper for the trial court to consider the Culp certification.
Finally, we note for the sake of completeness that First Atlantic conceded at oral argument before us that the trial court's order was interlocutory in nature in that it was subject to revision as discovery proceeded. See Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).
The order under review is affirmed.