1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-22183-UU

WILLIAM ATTIX, on behalf of himself

and others similarly situated,

Plaintiff, 

v.

CARRINGTON MORTGAGE SERVS., LLC,

Defendant. 

____________________________________/

ORDER 

THIS CAUSE is before the Court upon Defendant’s Motion Compel Arbitration and to 

Stay Case (the “Motion to Compel”) (D.E. 17) and Defendant’s Motion to Stay Discovery Pending 

Decision on the Motion to Compel (D.E. 18) (the “Motion to Stay Discovery”).

THE COURT has considered the Motions, pertinent parts of the record, and is otherwise 

fully advised in the premises.

I. Background

Plaintiff William Attix (“Plaintiff”) owns a home that is subject to a mortgage serviced by 

Carrington Mortgage Services (“Defendant”). D.E. 1 ¶ 5. Plaintiff’s putative class action complaint 

alleges that Defendant engaged in a practice of charging illegal “processing fees” when payments 

on its mortgages are made online or over the phone. Id. Plaintiff’s claims are based on one 

mortgage payment he made to Defendant via an automated phone payment system in May 2020, 

in which he paid a $10 processing fee for making the payment over the phone. Id. ¶ 16.

All payments made via the Defendant’s mortgage payment processing service are made 

through “Speedpay,” a payment processing system. D.E. 17-1 at 2 ¶ 5, Declaration of George 

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Saliba.

1 To make such a payment, a customer must enter the last four digits of his Social Security 

number, consent to a phone payment fee, authorize the debit to his account, and accept the terms 

and conditions (“T&Cs”) associated with the transaction (together, the “Phone Payment 

Agreement”). Id. at 3 ¶¶ 6–7. The automated phone payment transaction process requires the 

customer to state “I agree” to authorize a total payment that includes the phone payment fee, and 

requires the customer to select “1” on the phone key pad to accept that “the terms and conditions 

applicable to this payment are located at Speedpay.com/terms.” Id. at 3 ¶¶ 8–9. By following these 

steps and entering into the Phone Payment Agreement, which includes the T&Cs at 

Speedpay.com/terms, the customer is able to complete the transaction through the automated 

phone system. Id. at 3 ¶ 10.

The T&Cs include a provision to arbitrate “any dispute arising from or relating to” the 

payment. T&Cs, D.E. 17-1 at 9. Specifically, the “Resolution of Disputes” paragraph provides as 

follows: 

Unless You opt out . . . any dispute arising from or relating to Service or your 

Payment(s) shall be resolved by mandatory and binding arbitration. The arbitrator 

shall also decide what is subject to arbitration unless prohibited by law. The 

arbitration will be administered by American Arbitration Association (“AAA”) 

under its Consumer Arbitration Rules. . . . You will be responsible for up to $200 

of the administration fees. We, or the Arbitrator, may reduce this amount if you 

demonstrate hardship. This agreement is governed by the Federal Arbitration Act 

9 U.S.C. § 1 et seq. . . . Any arbitration shall take place on an individual basis; class 

actions or consolidation of arbitrations are not permitted. . . 

Id. (the “Arbitration Agreement”) (emphasis added). The terms apply to and govern the access and 

use of “the Service,” which is defined as the “payment processing service [] offered to You on 

behalf of your Biller [Carrington],” including “[p]ayments initiated, or completed through, 

 

1 George Saliba is the Vice President of Loan Servicing Analytics, in which he “review[s] business records 

kept in the ordinary course of business by Carrington Mortgage Services, LLC.” D.E. 17-1 at 1 ¶ 1.

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Integrated Voice Response (IVR) [or] telephone . . . .” Id. at 6. Under the terms, “access to and use 

of the Services . . . is governed by the laws of the State of New York.” Id. at 11.

On May 26, 2020, Plaintiff filed his putative class action complaint, bringing claims of: (1)

violating the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692k(a)(2)(b); (2) 

violating the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.77(2); (3) 

violating the Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”), Fla. Stat. §§ 

501.211(2) and 501.2105; (4) breach of contract; and (5) unjust enrichment. D.E. 1. On July 20, 

2020, Defendant moved to compel arbitration, arguing that Plaintiff’s claim is governed by the 

Arbitration Agreement. D.E. 17. The Motion is fully briefed and ripe for disposition.

II. Legal Standard

The Federal Arbitration Agreement (the “FAA”), 9 U.S.C. §§ 1 et seq., governs this dispute 

and “embodies a liberal federal policy favoring arbitration agreements.” Caley v. Gulfstream 

Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir. 2005) (quotation marks omitted). The Eleventh 

Circuit has “recognized that the FAA creates a presumption of arbitrability’ such that ‘any doubts 

concerning the scope of arbitrable issues should be resolved in favor of arbitration.’” Bazemore v. 

Jefferson Capital Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016) (quoting Dasher v. RBC Bank 

(USA), 745 F.3d 1111, 1115–16 (11th Cir. 2014)). “Under the FAA, a written agreement to 

arbitrate is ‘valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity 

for the revocation of any contract . . .’ Accordingly, the FAA requires a court to either stay or 

dismiss a lawsuit and to compel arbitration upon a showing that (a) the plaintiff entered into a 

written arbitration agreement that is enforceable ‘under ordinary state-law’ contract principles and 

(b) the claims before the court fall within the scope of that agreement.” Lambert v. Austin Ind., 

544 F.3d 1192, 1195 (11th Cir. 2008) (quoting 9 U.S.C. §§ 2-4). Thus, “[t]he threshold question 

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of whether an arbitration agreement exists at all is ‘simply a matter of contract.’” Id. (quoting First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). 

“[W]hile doubts concerning the scope of an arbitration clause should be resolved in favor 

of arbitration, the presumption does not apply to disputes concerning whether an agreement to 

arbitrate has been made.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 

2016). (citation omitted). “A court cannot compel parties to arbitrate their dispute in the absence 

of clear agreement to do so.” Larsen v. Citibank FSB, 871 F.3d 1295, 1302 (11th Cir. 2017). 

Whether an agreement to arbitrate exists is a question of state contract law. First Options of 

Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995); Bazemore, 

827 F.3d at 1329–30. “These principles dictate that courts look for evidence that the parties 

‘objectively revealed an intent to submit the dispute to arbitration.’” Dasher v. RBC Bank (USA), 

745 F.3d 1111, 1116 (11th Cir. 2014) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 

944 (1995)). 

“If the making of the arbitration agreement . . . be in issue, the court shall proceed 

summarily to the trial thereof.” 9 U.S.C. § 4. To determine whether the making of the arbitration 

agreement is in issue, courts apply a summary judgment-like standard. Bazemore, 827 F.3d at 

1333. Thus, “a district court may conclude as a matter of law that parties did or did not enter into 

an arbitration agreement only if ‘there is no genuine dispute as to any material fact’ concerning 

the formation of such an agreement.” Id. (citing Fed. R. Civ. P. 56(a)). The party moving to compel 

arbitration bears the burden “to prove the existence and terms of the contract it wishes to enforce.” 

Id. at 1334. 

The United States Supreme Court has made clear that “[l]ike any statutory directive, the 

[FAA]’s mandate may be overridden by a contrary congressional command.” Shearson/Am. Exp., 

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Inc. v. McMahon, 482 U.S. 220, 226 (1987). “If Congress did intend to limit or prohibit waiver of 

a judicial forum for a particular claim, such an intent will be deducible from the statute’s text or 

legislative history, or from an inherent conflict between arbitration and the statute’s underlying 

purposes.” Id. at 227 (citation, quotation marks, and alterations omitted). The relevant inquiry 

remains whether Congress “preclude[d] arbitration or other nonjudicial resolution of claims.” 

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29 (1991). When considering whether a 

contrary congressional command is present, courts must remember “that questions of arbitrability 

must be addressed with a healthy regard for the federal policy favoring arbitration.” Id. at 26. The 

party opposing arbitration bears the burden of showing whether a congressional command exists. 

Id.

III. Analysis

Defendant asserts that the Arbitration Agreement must be enforced because there exists a 

valid agreement to arbitrate given that Plaintiff manifested his assent to enter into the T&Cs with 

Speedpay, and because the Arbitration Agreement contains a delegation clause that requires an 

arbitrator to determine whether Plaintiff and Defendant agreed to arbitration.

2 D.E. 17 at 5–9. 

Plaintiff does not dispute that he manifested his assent to the Arbitration Agreement in the T&Cs. 

D.E. 25. Rather, Plaintiff argues that there is no valid arbitration agreement because Defendant is 

not a party to the Arbitration Agreement in the T&Cs, and various contract law principles do not

 

2 The delegation clause here provides that “[t]he arbitrator shall also decide what is subject to arbitration 

unless prohibited by law.” D.E. 17-1 at 9. When an arbitration agreement contains a delegation clause, the 

applicability of the arbitration agreement is to be decided by an arbitrator. See Henry Schein, Inc. v. Archer 

& White Sales, Inc., 139 S. Ct. 524, 529 (2019). However, arbitrability is for the courts to decide “unless 

there is clear and unmistakable evidence that the parties intended to submit such questions to an arbitrator.” 

Compere v. Nusret Miami, LLC, 396 F. Supp. 3d 1194, 1199 (S.D. Fla. 2019) (citing JPay, Inc. v. Kobel, 

904 F.3d 923, 930 (11th Cir. 2018)). While there is a dispute as to whether Defendant is a party to the 

arbitration agreement, there is no bona fide dispute as to the scope of the arbitration agreement; therefore,

the Court will not consider Defendant’s delegation clause argument.

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allow Defendant, a nonsignatory,3to compel arbitration. D.E. 25 at 8–11. Plaintiff also argues that 

any attempt to import Speedpay’s T&Cs into this dispute to force Plaintiff to arbitrate his claims 

against his mortgage servicer runs afoul of the Dodd-Frank Act, 15 U.S.C. § 1639c. Defendant 

replies that it is a party to the Phone Payment Agreement, and, in any event, equitable estoppel

allows Defendant to enforce the Arbitration Agreement. D.E. 27.

A. There Exists a Valid Agreement to Arbitrate Between Plaintiff and Defendant

Given that Plaintiff does not dispute that he manifested assent to enter into the T&Cs with 

Speedpay, the Court will turn its attention to the fundamental issue of whether Plaintiff and 

Defendant entered into an agreement to arbitrate.4

i. Defendant is a Party to the T&Cs and the Arbitration Agreement

Plaintiff argues that Defendant cannot compel arbitration because “Defendant is not a party 

to the arbitration agreement it seeks to enforce and Plaintiff never agreed to arbitrate any claims 

against Defendant.” D.E. 25 at 3. In support of his argument, Plaintiff states that: (1) the only 

parties referenced in the Arbitration Agreement specifically are “You” (Plaintiff), and “We” 

 

3 Plaintiff uses the terms “party” and “signatory” interchangeably to argue that Defendant is not a party to 

the Arbitration Agreement or T&Cs. The Court notes that strictly speaking, there are no “signatories” to 

the electronic T&Cs. However, the T&Cs make clear that Plaintiff’s consent is subject to the Electronic 

Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001–7006, which provides that “a contract 

relating to [a] transaction [affecting interstate commerce] may not be denied legal effect, validity, or 

enforceability solely because an electronic signature or electronic record was used in its formation.” § 

7001(a)(2) (emphasis added); D.E. 17-1 at 14. 

4 Plaintiff asks the Court to apply Florida law, while Defendant asks the Court to apply New York law in 

accordance with the T&Cs’ choice of law provision. D.E. 25 at 7; D.E. 29 at 7. For the reasons set forth 

herein, because the result would be the same under either law, the Court need not conduct a conflict of law 

analysis. Tune v. Philip Morris, Inc., 766 So. 2d 350, 352 (Fla. 2d DCA 2000) (a court need only undertake 

a conflict of law analysis if a true conflict exists); O’Connor v. United States Fencing Ass’n, 260 F. Supp. 

2d 545, 553 (E.D.N.Y. 2003) (noting the same under New York law). A false conflict exists when the laws 

of different states are (1) the same, (2) different but would produce the same outcome under the facts of the 

case, or (3) when the policies of one state would be furthered by the application of its laws while the policy 

of the other state would not be advanced by the application of its laws. 766 So. 2d at 352.

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(Speedpay); (2) the Arbitration Agreement makes no reference to “Biller” (Defendant); and (3) the 

T&Cs’ statement in the “Limitation of Liability” paragraph that “Speedpay is not affiliated with 

the Biller” makes clear that the T&Cs meant to exclude Defendant as a party to the Arbitration 

Agreement. D.E. 25 at 8; D.E. 17-1 at 9. Defendant replies that it is a party to the Arbitration

Agreement and that Plaintiff’s “bare denial that an agreement exists is insufficient to avoid 

arbitration where, as here, the undisputed facts show the existence of a valid arbitration 

agreement.” D.E. 27 at 3.

Defendant is a party to the T&Cs. Defendant, the “Biller,” is expressly contemplated on 

page 1 of the T&Cs, which provides the following:

This payment processing service is offered to You on behalf of your Biller

(“Service”). . . . As used in these Terms and Conditions, the term “User” means a 

user of this Website or any Alternative Payment Channel, located in the U.S, who 

is making a payment to the Biller. . . . The terms “Speedpay,” “we,” “our,” or “us” 

refer to Speedpay, [and] its affiliates and parent company who support the Service 

. . . The term “Biller” refers to the receiver of Your Payment, which is generally 

a business that is a client of Speedpay that has authorized Speedpay to process 

payments from its customers. Each payment transaction (“Payment”) made 

through the Service is a payment to the Biller. Speedpay solely provides 

processing services to the Biller and is not involved in the administration or 

collection of Your account, nor is Speedpay involved or associated with the goods 

and/or services provided by Biller. . . . By using the Service, You are requesting to 

make a Payment to Your Biller.

D.E. 17-1 at 6 (emphasis added). “The parties to a contract are the persons who enter the contract 

and are responsible for its performance.” Party to a Contract, BOUVIER LAW DICTIONARY (2019). 

The T&Cs clearly identify the parties: Plaintiff is responsible for making the payment, Defendant 

is responsible for receiving the payment and applying it against the indebtedness, and Speedpay is 

responsible for processing the payment. D.E. 17-1 at 6.

Defendant is also a party to the Arbitration Agreement. The fact that the “Biller” was not 

expressly mentioned in the Arbitration Agreement does not mean it is not a party. The Arbitration 

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Agreement governs “any dispute arising from or relating to Service on your Payments(s).” D.E. 

17-1 at 9 (emphasis added). “Service” is defined as the “payment processing service [] offered to 

You on behalf of your Biller.” Id. at 6 (emphasis added). By referencing the “Service,” the 

Arbitration Agreement thereby references payments to the Biller. Further, the only reference to 

Speedpay (“we”) in the Arbitration Agreement provides that “We . . . may reduce this amount if 

you demonstrate hardship”; this does not establish that the Arbitration Agreement meant to exclude 

Defendant as a party. Id.

Plaintiff cites to Calderon v. Sixt Rent a Car LLC, No. 19-cv-62408-SINGHAL, 2020 WL 

700381, at *8 (S.D. Fla. Feb. 12, 2020) to argue that “under the T&Cs’ plain, unambiguous 

language, Carrington is a nonparty.” D.E. 25 at 8; Calderon, 2020 WL 700381, at *9 (denying 

defendant’s motion to compel arbitration “for a very simple reason: It is not a party to the 

contract.”). The facts in Calderon are distinguishable: there, a car rental company, Sixt, sought to 

enforce the arbitration agreement entered into between the plaintiff and the third-party booking 

entity, Orbitz. Calderon, 2020 WL 700381, at *9. The arbitration agreement provided that “You 

and Orbitz agree that any and all Claims will be resolved by binding arbitration.” Id. at *9 

(emphasis added). Here, the Arbitration Agreement is much broader—governing “any dispute 

arising from or relating to Service on your Payments(s)”—and does not expressly limit arbitration 

to certain parties, i.e., Plaintiff and Speedpay. D.E. 17-1 at 9. 

ii. Alternatively, Defendant May Compel Arbitration Under Agency Law

Principles

Even if Defendant were not an express party to the Arbitration Agreement, Defendant may 

compel arbitration because the T&Cs make clear that Speedpay was acting as Defendant’s agent.

“Common law principles of contract and agency law allow a signatory to bind a nonCase 1:20-cv-22183-AMC Document 33 Entered on FLSD Docket 09/16/2020 Page 8 of 17
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signatory to an arbitration agreement.” Bd. of Trs. v. Citigroup Global Mkts., Inc., 622 F.3d 1335, 

1342 (11th Cir. 2010) (quoting World Rentals & Sales, LLC v. Volvo Constr. Equip. Rents, Inc., 

517 F.3d 1240, 1244, 1247 (11th Cir. 2008)); see also Thomson-CSF, S.A. v. American Arbitration 

Ass’n, 64 F.3d 773, 777 (2d Cir. 1995) (“Traditional principles of agency law may bind a 

nonsignatory to an arbitration agreement”); Koechli v. BIP Int’l, Inc., 870 So. 2d 940, 944 (Fla. 

1st DCA 2004) (“Florida and federal courts have recognized that a non-signatory can compel 

arbitration by a signatory to an arbitration agreement when the underlying proceeding concerns 

actions allegedly taken by the non-signatory as an agent of a signatory.”). When acting within the 

scope of his or her authority “an agent can bind a principal to an arbitration agreement just like 

any other contract.” Dye v. Tamko Bldg. Prods., 275 F. Supp. 3d 1314, 1322 (M.D. Fla. 2017) 

(citing Fi-Evergreen Woods LLC v. Estate of Robinson, 172 So. 3d 493, 497 (Fla. 4th DCA 2015)); 

Jefferies & Co., Inc. v. Infinity Equities I, LLC, 66 A.D.3d 540, 541, 887 N.Y.S.2d 81 (N.Y. App. 

Div. 2009) (“An agent acting within the scope of its authority may bind a principal to an arbitration 

agreement.”) (citations omitted)).

“Nonsignatories to a[n arbitration agreement may] compel arbitration . . . when, under 

agency or related principles, the relationship between the signatory and nonsignatory defendants 

is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration 

of the underlying arbitration agreement between the signatories be avoided.” MS Dealer Serv. 

Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999) (citation omitted). It follows that a 

nonsignatory principal may compel arbitration agreed to by its signatory agent so as to avoid 

“evisceration of the underlying arbitration agreement.” Id.; Segersbol v. Celebration Cruise 

Operator Inc., No. 13-60644-CIV-COHN/SELTZER, 2013 U.S. Dist. LEXIS 67750, at *13 (S.D. 

Fla. May 13, 2013) (“[A]n agency relationship with one of the signatories would allow the 

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principal to compel arbitration.”) (citing Razo v. Nordic Empress Shipping, Ltd., No. 07-CV05745, 2008 U.S. Dist. LEXIS 57618 (D.N.J. July 24, 2008), aff’d, 362 F. App’x 243 (3d Cir. 

2009)); Highland HC, LLC v. Scott, 113 A.D.3d 590, 978 N.Y.S.2d 302 (2014). 

Here, in executing the Phone Payment Agreement, Speedpay was acting as Defendant’s 

agent. Plaintiff called Defendant’s customer service line and agreed to the T&Cs to make his 

mortgage payment to Defendant. The T&Cs expressly were referenced as the applicable terms as 

part of the IVR process, and there can be no question that Plaintiff understood that the purpose of 

the IVR transaction governed by the T&Cs was to make his mortgage payment to Defendant. The 

T&Cs at page 1 provides that Speedpay was acting “on behalf of” the Biller, which authorized 

Speedpay to act as its agent to process payment transactions. D.E. 17-1 at 6. The T&Cs explicitly 

state that in authorizing the transaction, Plaintiff “[is] requesting to make a Payment to Your 

Biller.” Id. Plaintiff does not dispute that Defendant is the “Biller” under the T&Cs. D.E. 25 at 8. 

Nor does Plaintiff dispute whether he manifested assent to enter into the T&Cs with Speedpay.

The plain language of the T&Cs makes clear that Speedpay was acting as Defendant’s agent. 

In sum, Defendant can enforce the Arbitration Agreement in this case. Under the 

Arbitration Agreement, “any dispute arising from or relating to Service or your Payment(s) shall 

be resolved by mandatory and binding arbitration.” D.E. 17-1 at 9. The instant matter, which 

involves illegal processing fees paid online or over the phone, certainly is a “dispute arising from 

or relating to” the payment processing service. Id. Accordingly, Defendant may compel arbitration 

as a party to the Arbitration Agreement. Alternatively, because Plaintiff agreed to arbitration with 

Speedpay, Defendant’s agent, Defendant may compel Plaintiff to arbitrate his claims arising under 

the Phone Payment Agreement—to hold otherwise would result in “evisceration of the underlying 

arbitration agreement.” MS Dealer Serv. Corp., 177 F.3d at 947.

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Having determined that Plaintiff and Defendant entered into an enforceable agreement to 

arbitrate, the Court need not address whether equitable estoppel or other contract law principles

would apply to enforce the Arbitration Agreement. See D.E. 25 at 9–12.

B. The Dodd-Frank Act Prohibits Arbitration

Plaintiff argues that the Motion also must fail because even if Defendant were a party to 

the T&Cs, compelling Plaintiff to arbitrate his claims with his mortgage servicer violates the DoddFrank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), Pub. L. No. 111-

203, 124 Stat. 1376, which prohibits the use of arbitration provisions or pre-dispute waivers of 

federal statutory causes of action in connection with residential mortgages. 15 U.S.C. § 1639c(e); 

D.E. 25 at 12. Defendant replies that the Dodd-Frank Act is inapplicable to this case because 

“[t]here is no prohibition—by statute or otherwise—against an arbitration agreement covering 

claims arising from a separate agreement to make a payment by phone.” D.E. 27 at 14–15.

The subsection of the Dodd-Frank Act prohibiting arbitration, 15 U.S.C. § 1639c(e), states 

in relevant part:

(1) In general 

No residential mortgage loan and no extension of credit under an open end

consumer credit plan secured by the principal dwelling of the consumer may 

include terms which require arbitration . . . as the method for resolving any 

controversy or settling any claims arising out of the transaction.

. . . .

(3) No waiver of statutory cause of action 

No provision of any residential mortgage loan or of any extension of credit 

under an open end consumer credit plan secured by the principal dwelling of 

the consumer, and no other agreement between the consumer and the 

creditor relating to the residential mortgage loan or extension of credit

referred to in paragraph (1), shall be applied or interpreted so as to bar a 

consumer from bringing an action in an appropriate district court of the United 

States, or any other court of competent jurisdiction, pursuant to section 1640 

of this title or any other provision of law, for damages or other relief in 

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connection with any alleged violation of this section, any other provision of 

this subchapter, or any other Federal law. 

15 U.S.C. § 1639c(e)(1), (e)(3) (emphasis added). Title 12 C.F.R. 1026.36(h) reiterates that “[a] 

contract or other agreement for a consumer credit transaction secured by a dwelling . . . may not 

include terms that require arbitration.” 12 C.F.R. 1026.36(h)(1). As to waivers of federal statutory 

causes of action, the regulations restate that “[a] contract or other agreement relating to a consumer 

credit transaction secured by a dwelling . . . may not be applied or interpreted to bar a consumer 

from bringing a claim in court pursuant to any provision of law for damages or other relief in 

connection with any alleged violation of any Federal law.” 12 C.F.R. 1026.36(h)(2).

The issue here is this: Does the Dodd-Frank Act prohibit arbitration when a homeowner

agrees with the mortgagor and the payment processor to arbitrate claims arising from an agreement 

to make a mortgage payment by phone? The Court answers this question in the affirmative.

Courts that have had occasion to consider 15 U.S.C. § 1639c(e) have done so in the context 

of whether the provision applies retroactively. See, e.g., Trevisani v. Ocwen Loan Servicing, LLC, 

No. 16-cv-63018-BLOOM, 2017 U.S. Dist. LEXIS 220681 (S.D. Fla. May 3, 2017); Weller v. 

HSBC Mortg. Servs., Inc., 971 F. Supp. 2d 1072, 1079 (D. Colo. 2013); Beckwith v. Caliber Home 

Loans, No. 3:15-cv-00581-RDP, 2015 U.S. Dist. LEXIS 78332 (N.D. Ala. June 17, 2015); Davies 

v. Green Tree Servicing, LLC, 3:14-1711, 2015 U.S. Dist. LEXIS 78772, 2015 WL 3795621 (M.D. 

Pa. June 18, 2015). In each case, the court decided that § 1639c could not be applied retroactively 

to arbitration agreements entered into before the Dodd-Frank Act became effective in 2010.5See 

id. To the Court’s knowledge, no court has addressed the issue presented in this case.

The Court must determine whether Plaintiff has carried his burden to show that Congress 

 

5 Here, the Parties do not address retroactivity. While the subject mortgage here was executed in 2008, 

before the Dodd-Frank Act became effective, the Phone Payment Agreement containing the Arbitration 

Agreement was executed in May 2020. D.E. 1 ¶ 16; D.E. 1-1 at 8.

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intended § 1639c to preclude arbitration of the claims in this action. See Gilmer, 500 U.S. at 26; 

see also Richards v. Gibson, No. 1:15CV7-LG-RHW, 2015 U.S. Dist. LEXIS 10365, 2015 WL 

403050, at *3 (S.D. Miss. Jan. 29, 2015).

“As with any question of statutory interpretation, we begin by examining the text of the 

statute to determine whether its meaning is clear.” Harry v. Marchant, 291 F.3d 767, 770 (11th 

Cir. 2002). “We do this because we presume that Congress said what it meant and meant what it 

said.” Id. (quotation marks omitted). “Our inquiry must cease if the statutory language is 

unambiguous and the statutory scheme is coherent and consistent.” Med. Transp. Mgmt. Corp. v. 

Comm’r of IRS, 506 F.3d 1364, 1368 (11th Cir. 2007) (quotation marks omitted). However, “[w]e 

will . . . look beyond the plain language of a statute at extrinsic materials to determine the 

congressional intent if . . . the statute’s language is ambiguous.” Harrison v. Benchmark Elecs. 

Huntsville, Inc., 593 F.3d 1206, 1212 (11th Cir. 2010) (quotation marks omitted). “Statutory 

language is ambiguous if it is susceptible to more than one reasonable interpretation.” Med. 

Transp. Mgmt. Corp., 506 F.3d at 1368. Where there can be more than one reasonable 

interpretation, “the courts are left to determine [the statute’s] meaning by looking to the legislative 

history and employing the [other] canons of statutory construction.” U.S. Steel Mining Co. v. Dir., 

OWCP, 719 F.3d 1275 (11th Cir. 2013). “Congress is presumed to know the content of existing, 

relevant law, and . . . where Congress knows how to say something but chooses not to, its silence 

is controlling.” Griffith v. United States, 206 F.3d 1389, 1394 (11th Cir. 2000) (quotation marks, 

citations, and alterations omitted). “An express statutory exclusion of pre-dispute arbitration 

undoubtedly constitutes a clear congressional command.” Jackson v. Home Team Pest Def., Inc., 

No. 6:13-cv-916-ORL-22TBS, 2013 U.S. Dist. LEXIS 163269, 2013 WL 6051391, at *8 (M.D. 

Fla. Nov. 15, 2013).

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Under the Dodd-Frank Act, Plaintiff is a “consumer,” Defendant is a “creditor,” and the 

subject mortgage is a “residential mortgage loan.” First, a consumer “is a natural person, and the 

money, property, or services which are the subject of the [credit] transaction are primarily for 

personal, family, or household purposes.” 15 U.S.C. § 1602(i); see also 12 C.F.R. 1026.2(11).

Plaintiff is a consumer: Plaintiff is a natural person, and the subject mortgage is for a residential 

home. D.E. 1 ¶ 13; D.E. 1-1 (copy of mortgage). Second, a creditor is one who “both (1) regularly 

extends, whether in connection with loans, sales of property or services, or otherwise, consumer 

credit which is payable by agreement in more than four installments or for which the payment of 

a finance charge is or may be required, and (2) is the person to whom the debt arising from the 

consumer credit transaction is initially payable on the face of the evidence of indebtedness or, if 

there is no such evidence of indebtedness, by agreement.” 15 U.S.C. § 1602(g); see also 12 C.F.R. 

1026.2(17). Defendant is a creditor: “Carrington is a mortgage servicer specializing in high-risk, 

high-interest residential loans,” the subject loan is payable in more than four installments, and 

while the mortgage indicates that Security Atlantic Mortgage Co. is the lender, the parties do not 

dispute that Plaintiff’s mortgage payments are payable to Defendant by agreement. D.E. 1 ¶ 1; 

D.E. 1-1 at 1–2. Third, a “residential mortgage loan” means “any consumer credit transaction that 

is secured by a mortgage . . . interest on a dwelling or on residential real property that includes a 

dwelling.” 15 U.S.C. § 1602(dd)(5). “Credit” is defined as “the right granted by a creditor to a 

debtor to defer payment of debt or to incur debt and defer its payment.” § 1602(f). The subject 

mortgage is a residential mortgage loan: Plaintiff, the consumer, obtained a loan on credit, and the 

loan is secured by a mortgage security interest in the subject residential real property. 

The Court finds the statutory language to be clear and unambiguous. Making a payment on 

a residential mortgage loan certainly “relate[s] to the residential mortgage loan.” § 1639c(e)(3); 12 

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C.F.R. 1026.36(h)(2). While Section 1639(e)(1) and the first clause of Section 1639c(e)(3) limit 

arbitration prohibition to “any residential mortgage loan . . . secured by the principal dwelling of 

the consumer,” the second clause of Section 1639c(e)(3) does not contain such a limitation; rather, 

the second clause of Section 1639c(e)(3) includes the broad phrase “agreement[s] . . . relating to” 

residential mortgage loans or extension of credit. The text of the statute applies broadly to 

“agreement[s] . . . relating to” residential mortgage loans, not strictly to residential mortgage loans 

themselves. § 1639c(e)(3).

Defendant cites to CMH Homes, Inc. v. Sexton, 441 F. Supp. 3d 1202, 1209 (D.N.M. 2020)

in support of its position that the law does not prohibit an arbitration agreement covering claims 

arising from a separate agreement to make a mortgage payment by phone. D.E. 27 at 10; CMH 

Homes, Inc., 441 F. Supp. 3d at 1209 (granting motion to compel arbitration and finding that a 

separate sales transaction was distinct from a mortgage transaction). But the facts in CMH Homes 

are distinguishable. In CMH Homes, the plaintiff-debtor purchased a new “model manufactured 

home” from the defendants-manufacturers and sued the defendants on the grounds “that they sold 

him a severely defective manufactured home and stood by as it developed a dangerous mold 

infestation.” Id. at 1204–07. Presumably because the plaintiff did not bring a single federal 

statutory cause of action, id. at 1207, the Court did not consider whether the plaintiff sued in 

relation to a residential mortgage loan or extension of credit under Section 1639c(e)(3) and instead 

focused its analysis solely on Section 1639c(e)(1).

In this case, because Defendant, the creditor/biller, is a party to the T&Cs, it is a party to 

the “agreement between the consumer and the creditor relating to the residential mortgage loan.” 

§ 1639c(e)(3). The consumer (Plaintiff) and the creditor (Defendant) entered into an agreement, 

the Phone Payment Agreement, which relates to the residential mortgage loan. § 1639c(e)(3). 

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Although Defendant zealously contends it is a party to the Arbitration Agreement, Defendant does 

not want to treat the T&Cs as an “other agreement between the consumer and creditor relating to 

the residential mortgage loan or extension of credit” that would be covered by the Dodd-Frank 

Act’s arbitration prohibition. Id. But the Court will not allow Defendant to use the Arbitration 

Agreement as a sword and a shield. Because the Defendant is a creditor regulated by Dodd-Frank

it cannot bar Plaintiff from pursuing his federal claim in this Court.

Lastly, Defendant replies that even if the Dodd-Frank Act applied to the Phone Payment 

Agreement, Section 1639c(e)(3) prohibits arbitration agreements that govern asserted violations 

of federal law and is therefore inapplicable to Plaintiff’s four state law claims. D.E. 27 at 10. 

However, Section 1639c(e)(3) provides that no agreement relating to a residential mortgage loan 

shall bar a consumer from his day in federal court from an action “in connection with” any violation 

of federal law. § 1639c(e)(3) (emphasis added). Plaintiff’s sole federal cause of action arises under 

the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(a)(2)(b), in which he alleges that 

Defendant violated the statute because it had no legal right to seek collection of any “processing 

fees” from Plaintiff or other putative class members. D.E. 1 ¶¶ 31–40. Each of Plaintiff’s claims 

stem from his allegation that Defendant charged illegal mortgage payment processing fees that 

were not expressly authorized by his mortgage. See id. ¶¶ 48, 59, 64, 68. The Court finds that 

Plaintiff’s state law claims are sufficiently connected with his federal statutory claim that Plaintiff 

may pursue them in this lawsuit.

IV. Conclusion 

In sum, Defendant is a party to the Arbitration Agreement, which is prohibited by 15 U.S.C. 

§ 1639c(e)(3). Accordingly, it is hereby

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ORDERED AND ADJUDGED that the Motion to Compel Arbitration and to Stay Case, 

D.E. 17, is DENIED. It is further

ORDERED AND ADJUDGED that the Motion to Stay Discovery, D.E. 18, is DENIED 

AS MOOT. It is further

ORDERED AND ADJUDGED that Defendant SHALL file its response to the complaint 

within fourteen (14) days of this order. It is further

ORDERED AND ADJUDGED that the hearing scheduled for Friday, September 18, 2020, 

is CANCELED and RE-SET to Friday, October 30, 2020, at 10:00 a.m.

DONE AND ORDERED in Chambers at Miami, Florida, this _15th_ day of September, 

2020.

_______________________________

URSULA UNGARO 

UNITED STATES DISTRICT JUDGE 

cc: all counsel of record via cm/ecf

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