Arbitration Provision
VERY IMPORTANT. READ THIS ARBITRATION PROVISION CAREFULLY. IT SETS FORTH WHEN AND HOW CLAIMS (AS DEFINED BELOW UNDER THE CAPTION “CERTAIN DEFINITIONS”) WILL BE ARBITRATED INSTEAD OF LITIGATED IN COURT. THIS ARBITRATION PROVISION GOVERNS “CLAIMS” YOU ASSERT AGAINST US, including our subsidiaries, affiliates, successors, assigns, service providers, and agents OR ANY “RELATED PARTY” OF OURS AND “CLAIMS” WE OR ANY RELATED PARTY ASSERT AGAINST YOU. IF YOU DON’T REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH SECTION 3 BELOW, UNLESS PROHIBITED BY APPLICABLE LAW, IT WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY IN WHICH YOU OR WE RESOLVE ANY CLAIM.
Unless prohibited by applicable law and unless you reject the Arbitration Provision in accordance with Section 3 below, you and we agree that either party may elect to require arbitration of any Claim under the following terms and conditions:
Certain Definitions
1. The words “you” and “your” mean each applicant who has submitted or signed this Application, jointly and individually. The words “we,” “us,” and “our” mean VTP Financial LLC and its affiliates, successors, assigns, servicers, service providers, and agents. “Application” means the application you have submitted to us, including the Application Terms and Conditions.
2. For purposes of this Arbitration Provision, our “related parties” include all parent companies, subsidiaries, and affiliates of ours and our and their employees, directors, officers, shareholders, governors, managers, and members.
3. The term “Claim” means any claim, dispute, or controversy between you and us (or our related parties) that arises from or relates in any way to this Application or any services you request or we provide under this Application (“Services”); any of our marketing, advertising, solicitations, and conduct relating to your request for Services; our collection of any amounts you owe; or our disclosure of or failure to protect any information about you. “Claim” is to be given the broadest possible meaning and includes claims of every kind and nature, including but not limited to, initial claims, counterclaims, crossclaims and third-party claims, and claims based on any constitution, statute, regulation, ordinance, common law rule (including rules relating to contracts, negligence, fraud, or other intentional wrongs), and equity. “Claim” includes disputes that seek relief of any type, including damages and/or injunctive, declaratory, or other equitable relief
4. Notwithstanding the foregoing, “Claim” does not include any individual action brought by you in small claims court or your state’s equivalent court, unless such action is transferred, removed, or appealed to a different court. In addition, except as set forth in the immediately following sentence, “Claim” does not include disputes about the validity, enforceability, coverage, or scope of the Arbitration Provision or any part thereof (including, without limitation, Sections 7(C), (D), and/or (E) of the Arbitration Provision (the “Class Action and Multi-Party Claim Waiver”), the clause in the third sentence of Section 12 of the Arbitration Provision beginning with the words “provided, however,” and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Application as a whole, is for the arbitrator, not a court, to decide. “Claim” also does not include any “self-help remedy” (that is, any steps taken to enforce rights without a determination by a court or arbitrator, for example, repossession and/or re-titling of a motor vehicle) or any individual action by you or us to prevent the other party from using any self-help remedy, so long as such self-help remedy or individual judicial action does not involve a request for monetary relief of any kind.
4.a. Pre-Dispute Resolution Procedure. Before either you, we or any related party commences, joins or participates in any judicial or arbitration proceeding regarding any Claim (“Proceeding”), in any capacity (including as an individual litigant or as a member or representative of any class or proposed class), the complaining party (“Complaining Party”) shall give the subject of the Claim (the “Defending Party”): (1) at least 30 days’ written notice of the claim (“Claim Notice”), explaining in reasonable detail the nature of the Claim and any supporting facts; and (2) a reasonable good faith opportunity to resolve the Claim on an individual basis without the necessity of a Proceeding. If you are the Complaining Party, you must send any Claim Notice to VTP Financial LLC, Attn: Legal Department, 1110 West Kettleman Lane Suite 21, Lodi, CA 95240 (or such other address as we shall subsequently provide to you). If you are the Defending Party, any Claim Notice must be sent to you at your address appearing in our records or, if you are represented by an attorney, to your attorney at his or her office address. If the Complaining Party and the Defending Party do not reach an agreement to resolve the Claim within 30 days after the Claim Notice is received, the Complaining Party may commence a Proceeding, subject to the terms of the Arbitration Provision. Neither the Complaining Party nor the Defending Party shall disclose in any Proceeding the amount of any settlement demand made by the Complaining Party or any settlement offer made by the Defending Party until after the arbitrator or court determines the amount, if any, to which the Complaining Party is entitled (before the application of Section 9 of the Arbitration Provision). No settlement demand or settlement offer may be used in any Proceeding as evidence or as an admission of any liability or damages.
4.b. Right to Reject Arbitration. If you do not want this Arbitration Provision to apply, you may reject it within 30 days after the date of this Application by delivering to us at VTP Financial LLC, Attn: Legal Department, 1110 West Kettleman Lane Suite 21, Lodi, CA 95240, a written rejection notice which: (a) provides your name, your address, and the date of this Application; and (b) states that you are rejecting the Arbitration Provision in the Application. If you want proof of the date of such a notice, you should send the rejection notice by “certified mail, return receipt requested.” If you use such a method, we will reimburse you for the postage upon your request. Nobody else can reject arbitration for you (except an attorney at law you have personally retained); this is the only way you can reject arbitration. Your rejection of arbitration will not affect your right to Services or the terms of this Application (other than this Arbitration Provision).
4.c. Arbitration Election. A Proceeding may be commenced after the Complaining Party complies with the Pre-Dispute Resolution Procedure. The Complaining Party may commence the Proceeding either as a lawsuit or an arbitration by following the appropriate filing procedures for the court or the arbitration administrator selected by the Complaining Party in accordance with this Section 4. If a lawsuit is filed, the Defending Party may elect to demand arbitration under this Arbitration Provision of some or all of the Claims asserted in the lawsuit. To avoid piece-meal Proceedings to the extent possible, the Complaining Party must assert in a single lawsuit or arbitration all of the Claims of which the Complaining Party is aware, and the Defending Party must demand arbitration with respect to all or none of the Complaining Party’s Claims. Also, if the Complaining Party initially asserts a Claim in a lawsuit on an individual basis but then seeks to assert the Claim on a class, representative, or multi-party basis, the Defending Party may make such a demand. A demand to arbitrate a Claim may be given in papers or motions in a lawsuit. If you demand that we arbitrate a Claim initially brought against you in a lawsuit, your demand will constitute your consent to arbitrate the Claim with the administrator of our choice, even if the administrator we choose does not typically handle arbitration proceedings initiated against consumers. Any arbitration Proceeding shall be conducted pursuant to this Arbitration Provision and the applicable rules of the arbitration administrator in effect at the time the arbitration is commenced. The arbitration administrator will be VTP Financial LLC, 1110 West Kettleman Lane Suite 21, Lodi, CA 95240; or any other company selected by mutual agreement of the parties. If
VTP Financial LLC cannot or will not serve and the parties are unable to select an arbitration administrator by mutual consent, the administrator will be selected by a court with jurisdiction. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any arbitration administrator that has in place a formal or informal policy that is inconsistent with the Class Action and Multi-Party Claim Waiver. The arbitrator will be selected under the administrator’s rules, except that the arbitrator must be a lawyer with at least ten years of experience or a retired judge unless the parties agree otherwise.
4.d. Non-Waiver. Even if all parties have opted to litigate a Claim in court, you or we may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative, or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this Arbitration Provision. For example, if we file a lawsuit against you in court to recover amounts due under the Application, you have the right to request arbitration, but if you do not elect to request arbitration, we reserve and do not waive the right to request arbitration of any Claim (including any counterclaim) you later assert against us in that or any related or unrelated lawsuit. This Arbitration Provision will apply to all Claims, even if the facts and circumstances giving rise to the Claims existed before the effective date of this Arbitration Provision.
4.e. Location and Costs. The arbitrator may decide that an in-person hearing is unnecessary and that he or she can resolve the Claim based on the papers submitted by the parties and/or through a telephone hearing. However, any arbitration hearing that you attend will take place in a location that is reasonably convenient for you. We will consider any good faith request you make for us to pay the administrator’s or arbitrator’s filing, administrative, hearing and/or other fees if you cannot obtain a waiver of such fees from the administrator and we will not seek or accept reimbursement of any such fees we agree to pay. We will also pay any fees or expenses we are required by law to pay or that we must pay in order for this Arbitration Provision to be enforced. We will pay the reasonable fees and costs you incur for your attorneys, experts, and witnesses if you are the prevailing party or if we are required to pay such amounts by applicable law or by the administrator’s rules. The arbitrator shall not limit the attorneys’ fees and costs to which you are entitled because your Claim is for a small amount. Notwithstanding any language in this Arbitration Provision to the contrary, if the arbitrator finds that any Claim or defense is frivolous or asserted for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the arbitrator may award attorneys’ and other fees related to such Claim or defense to the injured party so long as such power does not impair the enforceability of this Arbitration Provision.
4.f. No Class Actions or Similar Proceedings; Jury Trial Waiver; Special Features of Arbitration. IF YOU OR WE ELECT TO ARBITRATE A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO: (A) HAVE A COURT OR A JURY DECIDE THE CLAIM; (B) OBTAIN INFORMATION PRIOR TO THE HEARING TO THE SAME EXTENT THAT YOU OR WE COULD IN COURT; (C) PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR CLASS OPPONENT; (D) ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; OR (E) JOIN OR CONSOLIDATE CLAIM(S) INVOLVING YOU WITH CLAIMS INVOLVING ANY OTHER PERSON. THE RIGHT TO APPEAL IS MORE LIMITED IN ARBITRATION THAN IN COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the Claim(s) in arbitration, and shall not (i) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (ii) make an award for the benefit of, or against, anyone other than a named party. No arbitration administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section, and any attempt to do so, whether by rule, policy, arbitration decision, or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this section shall be determined exclusively by a court and not by the administrator or any arbitrator.
5. Getting Information. In addition to the parties’ rights under the administrator’s rules to obtain information before the hearing, either party may ask the arbitrator for more information from the other party. The arbitrator will decide the issue in his or her sole discretion, after allowing the other party the opportunity to object.
6. Special Payment. If (a) you submit a Claim Notice on your own behalf (and not on behalf of any other party) and comply with all of the requirements (including timing and confidentiality requirements) of the Pre-Dispute Resolution Procedure; (b) we refuse to provide you with the money damages you request before an arbitrator is appointed; and (c) an arbitrator issues you an award that is greater than the latest money damages you requested at least ten days before the date the arbitrator was selected, then we will:
· Pay you the amount of the award or $10,000 ("the alternative payment"), whichever is greater; and
· Pay your attorney, if any, a premium in addition to the amount of attorneys' fees and expenses (including expert witness fees and costs) that was awarded by the arbitrator in this arbitration in the amount equal to the lesser of $2,500 or fifty percent of the arbitrator’s attorneys' fees award ("the attorney premium").
· The right to attorneys' fees and expenses discussed in this section supplements any right to attorneys' fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative or multiplier awards of attorneys' fees or costs.
7. Effect of Arbitration Award. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator’s award will be final and binding, except for: (1) any appeal right under the Federal Arbitration Act, 9 U.S.C. §1, et seq. (the “FAA”); and (2) Claims involving more than $50,000 (including Claims that may reasonably require injunctive relief costing more than $50,000). For Claims involving more than $50,000, any party may appeal the award to a three-arbitrator panel appointed by the administrator, which will reconsider de novo any aspect of the initial award that is appealed. The panel’s decision will be final and binding, except for any appeal right under the FAA. Costs in connection with any such appeal will be borne in accordance with Section 6 of this Arbitration Provision.
8. Governing Law. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA, and not federal or state rules of civil procedure or evidence or any state laws that pertain specifically to arbitration, provided that the law of Texas, where we are headquartered, shall be applicable to the extent that any state law is relevant in determining the enforceability of this Arbitration Provision under Section 2 of the FAA. The arbitrator is bound by the terms of this Arbitration Provision. The arbitrator shall follow applicable substantive law (to the extent consistent with the FAA), applicable statutes of limitation, and
applicable privilege rules, and the arbitrator shall be authorized to award all remedies available in an individual lawsuit under applicable substantive law, including, without limitation, compensatory, statutory and punitive damages (which shall be governed by the constitutional standards applicable in judicial proceedings), declaratory, injunctive and other equitable relief, and attorneys’ fees and costs. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
9. Survival; Primacy; Severability. This Arbitration Provision shall survive the full performance of Services under this Application; any rescission or cancellation of this Application; our sale or transfer of this Application or our rights under this Application; any legal proceeding by us to collect a debt owed by you; and your (or our) bankruptcy. In the event of any conflict or inconsistency between this Arbitration Provision and the administrator’s rules or the rest of this Application, this Arbitration Provision will govern. If any part of this Arbitration Provision cannot be enforced, the rest of this Arbitration Provision will continue to apply; provided, however, that:
10. If Section 7(C), (D), and/or (E) is declared invalid in a proceeding between you and us, without in any way impairing the right to appeal such decision, this entire Arbitration Provision (other than this sentence) shall be null and void in such proceeding. In the event of any conflict or inconsistency between this Arbitration Provision and the administrator’s rules or the rest of this Application, this Arbitration Provision will govern.
11. If a Claim is brought seeking public injunctive relief and a court determines that the restrictions in Section 7 prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Claim (and that determination becomes final after all appeals have been exhausted), the Claim for public injunctive relief will be determined in court and any individual Claims seeking monetary relief will be arbitrated. In such a case the parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to individual relief has been entered in court. In no event will a Claim for public injunctive relief be arbitrated.
12. Jury Trial Waiver. YOU AND WE ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, YOU AND WE, AFTER HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS APPLICATION.