Tag Archives: adhesion

Documentation Bogs-Down an Attempted Assignment

A recent entry in the expanding line of cases where lenders’ fail to retain appropriate documentation is Gemini Capital Group, LLC v. Tripp, 2013 WL 5872742 (Mo. App. S.D.,2013).

The putative assignee, Gemini, initiated proceedings against the debtor.  When faced with an inability to document ownership of the claims, the creditor, at the very last minute, sought a voluntary dismissal.  Faced with counterclaims and a request for class certification, the tide seems to have turned.  What about the agreement to arbitrate:

Here, Gemini asserts that the right to collect under the retail installment contract and the corresponding right to compel arbitration under the arbitration agreement were assigned from Auto Master to SHAC, from SHAC to Sagres, and finally, from Sagres to Gemini. In the trial court, Gemini asserted this chain was demonstrated by the affidavits provided in support of their motion. However, the documentation Gemini provided fails to demonstrate the assignment of Tripp and Thoms’s account. Although Gemini provided the written agreements purporting to prove the assignments, the documents merely reference lists of purchased accounts and corresponding account-holder information. The two Exhibits “A” were not included with the documentation provided to the trial court or filed as part of the record on appeal. Gemini failed to prove the chain of assignment, and its motion to compel arbitration was properly denied.

This conclusion is not altered by the affidavits and computer printouts Gemini provided. The affidavits did not provide substantial evidence of the assignments because they contained only legal conclusions as to the critical facts surrounding the assignment of Tripp and Thoms’s account.

 

Why Not a Duty to Read One’s Own Form? Woods of Somerset, LLC v. Developers Surety & Indemnity Co.

The typical case of a dispute as to an adhesion contract involves claims literal terms should not be binding on the recipient of the supplied form. A court may recite the bromide that one has a duty to read the contracts one signs.  Well, should not the party who is responsible for the form take responsibility for its own failure to read or understand its  own form?  In this man-bites-dog category falls Woods of Somerset, LLC v. Developers Surety & Indemnity Co., 2013 WL 5311922 (Mo. App. W.D. 2013).


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