finding the evidence supported a determination that an agreement’s arbitration clause was unconscionable when, among other things, the terms of the agreement were entirely one-sided because the consumer was required to arbitrate, while the title company had a choice of simply repossessing the collateral by force or through suit in court, stating “[t]he fact that no consumer ever has arbitrated a claim against the title company *** makes it clear that the agreement stands as a substantial obstacle not just to arbitration but also to the resolution of any consumer disputes against the title company”
How later courts described this case
- finding the evidence supported a determination that an agreement’s arbitration clause was unconscionable when, among other things, the terms of the agreement were entirely one-sided because the consumer was required to arbitrate, while the title company had a choice of simply repossessing the collateral by force or through suit in court, stating “[t]he fact that no consumer ever has arbitrated a claim against the title company *** makes it clear that the agreement stands as a substantial obstacle not just to arbitration but also to the resolution of any consumer disputes against the title company”
- concluding inter alia that Concepcion does not bar a finding that an arbitration clause is unenforceable where a title company reserves its right to obtain its primary remedies through the court system, but requires the party with lesser bargaining power to obtain her only meaningful remedy through individual arbitration
- holding that court would "determine if, under the factual record presented, Brewer has established a defense to the formation of the agreement’s arbitration clause”
- finding that an, arbitration agreement was unconscionable in part because it was “difficult for the average consumer to understand”
Written by the judges who cited it.
The opinion
ZEL M. FISCHER, Judge,
dissenting.
The circuit court entered its judgment in this case on August 5, 2009. That judgment, which struck down the prohibition of the class arbitration, was affirmed by a majority of this Court, but I joined, the dissent authored by Judge Price. The United States Supreme Court thereafter issued its decision in AT & T Mobility, LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740 , 179 L.Ed.2d 742 (2011), granted certiorari, vacated this Court’s opinion in Brewer v. Missouri Title Loans, 823 S.W.3d 18 (Mo. banc 2010) (Brewer I) and remanded for further proceedings consistent with Concepcion. In my view, and to be consistent with Concepcion and this Court’s unanimous opinion in Robinson v. Title Lenders, 364 S.W.3d 505 (Mo. banc 2012) (decided concurrently with this case), the circuit court’s judgment must be reversed and remanded to the circuit court for further factual determinations because the circuit court admittedly and explicitly “considered only the arbitration clause of defendant’s contract, and [did] not consider the contract as a whole.” Circuit court judgment at 2.
The circuit court’s judgment was very specific as to the issue it decided. “The issue to be decided is whether the arbitration clause of Missouri Title Loans, Inc. is unconscionable and therefore unenforceable.” Circuit court judgment at 1. The circuit court, as specifically stated above, did not consider whether the contract as a whole was unconscionable.
The principal opinion expressly considered “traditional Missouri contract law in looking at the agreement as a whole to determine the conscionability of the arbitration provision,” and then went on to factually determine plaintiff “has demonstrated unconscionability in the formation of the Agreement.” Op. at 487.
The dissenting opinion authored by Judge Price recognizes section 2 of the FAA preserves agreements to arbitrate to be invalidated only by “ ‘generally applicable contract defenses such as fraud, duress, or unconscionability,’ but not by defenses that ‘apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.’ ” Op. at 497. Therefore, the opinion authored by Judge Price would “enforce the contract as written.” Id. at 497.
In my view, if the circuit court would have had the benefit of the United States Supreme Court’s opinion in Concepcion and this Court’s unanimous opinion in Rob *497 inson, it would have realized the legal necessity to consider the contract as a whole under applicable state law concepts of unconscionability to resolve this case. I am of the view it is the circuit court’s prerogative and function to determine all the facts necessary and then apply the law in accordance with these recent case decisions to those facts. Therefore, I would reverse and remand for further proceedings consistent with Concepcion and Robinson . 1
. The requirement to remand this case is also consistent with the recent United States Supreme Court case in Marmet Health Care Center, Inc. v. Brown, 565 U.S. -, 132 S.Ct. 1201 , 182 L.Ed.2d 42 (2012).