[Cite as Citraro v. Computertraining.com, Inc., 2013-Ohio-3249.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99278

COREY CITRARO, ET AL.

PLAINTIFFS-APPELLEES 

vs. 

COMPUTERTRAINING.COM INC., ET AL.

DEFENDANTS 

[APPEAL BY SALLIE MAE, INC.] 

DEFENDANT-APPELLANT

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-787979 

BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: July 25, 2013 
ATTORNEYS FOR APPELLANT

Stephen H. Jett 

Brian E. Ambrosia 

Taft, Stettinius & Hollister, L.L.P. 

3500 BP Tower 

200 Public Square 

Cleveland, Ohio 44114 

Jonathan W. Garlough 

Robert H. Griffith 

Foley & Larnder, L.L.P. 

321 North Clark Street 

Suite 2800 

Chicago, Illinois 60654 

Michael C. Lueder 

Foley & Larnder, L.L.P. 

777 East Wisconsin Avenue 

Milwaukee, Wisconsin 53202-5306 

ATTORNEYS FOR APPELLEES 

David R. Mayo 

Michael J. Meyer

Benesch, Friedlander, Coplan, & Aronoff, L.L.P. 

200 Public Square 

Suite 2300 

Cleveland, Ohio 44114
KENNETH A. ROCCO, P.J.: 

{¶1} This case involves the enforceability of an arbitration agreement between 

plaintiffs-appellees Corey Citraro (“Corey”) and Charles Citraro (“Charles”) (collectively 

“the Citraros”) and defendant-appellant Sallie Mae, Inc. (“Sallie Mae”). The trial court 

determined that the arbitration agreement was unenforceable because one of the potential 

arbitration forums referenced in the agreement had become unavailable. The law 

governing the arbitration agreement and the language of the agreement itself do not 

support this conclusion, and so we reverse the trial court’s final judgment. 

{¶2} Corey is a former student at a vocational school owned and operated by the 

four non-Sallie Mae defendants in this case (“the ComputerTraining defendants”). To 

finance his education, Corey entered into – and Charles cosigned – a promissory note 

(“the Note”) with Sallie Mae, a private, financial services company specializing in 

education.1

 The Note includes an arbitration agreement (“the Arbitration Agreement”): 

XVI. ARBITRATION AGREEMENT

To the extent permitted under federal law, you and I agree that either party 

may elect to arbitrate – and require the other party to arbitrate – any Claim 

under the following terms and conditions. This Arbitration Agreement is 

part of the Sallie Mae Educational Loan Program Promissary Note 

(“Note”). 

 1

Sallie Mae was originally created in 1972 as a government-sponsored entity, but is now a 

publicly held, private sector company.
1. RIGHT TO REJECT: I may reject this Arbitration Agreement by 

mailing a signed rejection notice * * * within 60 days after the date of my 

Note. * * * 

2. IMPORTANT WAIVERS: If you or I elect to arbitrate a Claim, you 

and I both waive the right to * * * have a court or a jury decide the Claim * 

* * . 

3. DEFINITIONS: In this Arbitration Agreement the following definitions 

will apply: 

“I,” “me,” and “my” mean each and every Borrower and Cosigner on the 

Note; [and] the Student on whose behalf the proceeds of the Note have been 

advanced * * * “You,” “your,” and “yours” [includes] * * * Sallie Mae * * 

*. “Administrator” means, as applicable, the American Arbitration 

Association * * * or the National Arbitration Forum * * * provided that the 

Administrator must not have in place a formal or informal policy that is 

inconsistent with an purports to override the terms of this Arbitration 

Agreement. The National Arbitration Forum will be the Administrator 

unless: (a) you and I agree otherwise; (b) I am the Claimant and I initiate an 

arbitration before the American Arbitration Association or (c) I assert a 

Claim in court, you elect to arbitrate the Claim and I give you written notice 

that I am selecting the American Arbitration Association as Administrator 

within 20 days thereafter (or, if I dispute your right to require arbitration of 

my Claim, I select the American Arbitration Association as Administrator 

within 20 days after that dispute is finally resolved). 

* * * 

5. STARTING AN ARBITRATION: To initiate an arbitration, you or I 

must give written notice of an election to arbitrate. This notice may be 

given after a lawsuit has been filed and may be given in papers or motions 

in the lawsuit. If such a notice is given, the Claim shall be resolved by 

arbitration under this Arbitration Agreement and the applicable rules of the 

Administrator then in effect. 

* * * 

9. GOVERNING LAW: This Arbitration Agreement is made pursuant to a 

transaction involving interstate commerce and shall be governed by the 

[Federal Arbitration Act], and not by any state law concerning arbitration. * 

* * 

The Arbitration Agreement also contains a severability clause: 

10. SURVIVAL, SEVERABILITY, PRIMACY: * * * If any portion of 

this Arbitration Agreement cannot be enforced, the rest of the Arbitration 
Agreement will continue to apply * * *. In the event of any conflict or 

inconsistency between this Arbitration Agreement and the Administrator’s 

rules or the Note, this Arbitration Agreement will govern.2

{¶3} The Citraros filed a complaint against the ComputerTraining defendants in 

the Cuyahoga County Court of Common Pleas. The complaint, which arose from the 

closure of the ComputerTraining schools, asserted claims of negligence, breach of 

fiduciary duty, negligent misrepresentation, promissory estoppel, breach of contract, and 

fraud.3

 The Citraros also named Sallie Mae as a defendant, alleging that “Sallie Mae is 

subject to the claims and defenses that each of its borrowers could assert against 

ComputerTraining” by operation of the mandatory FTC Holder Notice located in § XIII 

of the Note.4

 

{¶4} Sallie Mae responded by filing a motion to dismiss the Citraros’ complaint or, 

in the alternative, to compel arbitration. Sallie Mae asserted that the Citraros’ claims 

were governed by the Arbitration Agreement, and that the trial court lacked jurisdiction to 

hear the Citraros’ claims. 

 2

The Note contains an additional severability clause stating that “[i]f any portion of this Note 

is held invalid or unenforceable, that provision shall be considered omitted from this Note without 

affecting the validity or enforceability of the remainder of this Note. Note § XIV.

3

The ComputerTraining defendants have not answered the complaint nor 

filed an appearance in this case. 

4

As required under 16 C.F.R. §433.2, the Note contains a notice stating that “Any holder of 

this consumer credit contract is subject to all claims and defenses which the debtor could assert 

against the seller of goods or services obtained with the proceeds hereof, recovery hereunder by the 

debtor not to exceed amounts paid by the debtor hereunder.” Note § XIII (Original in all caps.) 
{¶5} The Citraros responded, in turn, arguing: (1) that the Arbitration Agreement 

was unconscionable; and (2) that the Arbitration Agreement was unenforceable as written 

because the National Arbitration Forum (“the NAF”) was no longer available to arbitrate 

the dispute.5

 

{¶6} The trial court denied Sallie Mae’s motion to dismiss or to compel 

arbitration. The trial court reasoned that Sallie Mae could not elect to arbitrate the 

Citraros’ dispute before the American Arbitration Association (“the AAA”) because § 

XVI(3) of the Note set forth that the NAF was the default arbitration forum, and that the 

Citraros “are the only parties who may choose to arbitrate the dispute before the AAA.” 

The order did not cite to any law governing the enforceability of arbitration agreements 

and did not reference the Arbitration Agreement’s severability clause. The order 

expressly stated that it was not addressing the Citraros’ unconscionability argument. 

{¶7} Sallie Mae now appeals to this court, raising one assignment of error for our 

review: 

The trial court erred in precluding Sallie Mae from enforcing the arbitration 

agreement with the Citraros due to the unavailability of one of the two 

arbitration forums identified in the arbitration agreement. 

Finding merit to Sallie Mae’s position, we sustain the assignment of error. 

{¶8} We review de novo whether the Citraros’ claims are subject to the Arbitration 

Agreement. See Taylor v. Squires Constr. Co., 196 Ohio App.3d 581, 2011-Ohio-5826, 

 5

 After the Citraros and Sallie Mae had signed the Note, the NAF entered 

into a consent decree divesting itself of the right to oversee arbitrations like the one 

proposed in this case.
964 N.E.2d 500, ¶ 21 (8th Dist.). In conducting our inquiry, we are instructed to look to 

the Federal Arbitration Act (“the FAA”) and not to state law. Note at § XVI(9). 

{¶9} The FAA reflects a “liberal federal policy favoring arbitration.” Moses H. 

Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 

765 (1983), “requiring that ‘we rigorously enforce agreements to arbitrate.’” 

Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 

(1987), quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 105 S.Ct. 1238, 84 

L.Ed.2d 158 (1985). Section 2 of the FAA provides that “[a] written provision in any * * 

* contract evidencing a transaction involving commerce to settle by arbitration a 

controversy thereafter arising out of such contract or transaction * * * shall be valid, 

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract. 9 U.S.C. §2. 

{¶10} Where the parties have entered into an arbitration agreement, a court should 

apply “a general presumption of arbitrability, and any doubts are to be resolved in favor 

of arbitration ‘unless it may be said with positive assurance that the arbitration clause is 

not susceptible of an interpretation that covers the asserted dispute.’” Masco Corp. v. 

Zurich Am. Ins. Co., 382 F.3d 624, 627 (6th Cir. 2004), quoting Highlands Wellmont 

Health Network, Inc. v. John Deere Health Plan, Inc., 350 F.3d 568, 576-77 (6th Cir. 

2003). See also Moses H. Cone, 460 U.S. at 24-25 (“As a matter of federal law, any 

doubts concerning the scope of arbitrable issues should be resolved in favor of 

arbitration.”) 
{¶11} Applying these principles to the instant case, we conclude that the 

Arbitration Agreement is enforceable notwithstanding the NAF’s unavailability. The 

parties to the Note have manifested a clear intent to arbitrate their claims, and this 

intention is not contingent on the availability of a particular arbitrator. We base our 

conclusion on two independent bases.6

{¶12} First, §5 of the FAA disposes of the Citraros’ argument that the NAF’s 

unavailablity precludes Sallie Mae from exercising its right to arbitrate. Section 5 

governs the appointment of arbitrators and provides as follows: 

If in the agreement provision be made for a method of naming or appointing 

an arbitrator * * *, such method shall be followed; but if no method be 

provided therein, or if a method be provided and any party thereto shall fail 

to avail himself of such method, or if for any other reason there shall be a 

lapse in the naming of an arbitrator * * * , or in filling a vacancy, then 

upon the application of either party to the controversy the court shall 

designate and appoint an arbitrator, as the case may require, who shall act 

under the said agreement with the same force and effect as if he or they had 

been specifically named therein; and unless otherwise provided in the 

agreement the arbitration shall be by a single arbitrator. 

9 U.S.C. § 5. (Emphasis added). This provision plainly requires that the court appoint an 

arbitrator where the specified arbitration forum is no longer available. See e.g., Wilson v. 

Dell Fin. Servs. LLC, No. 5:09-cv-00483, 2010 U.S. Dist. LEXIS 10809 at *5 (S.D. 

W.Va. Feb. 8, 2010) (noting that §5 “empower[s] courts to appoint a substitute if the 

 6

We also note that other court decisions have confirmed the enforceability of 

this very same arbitration agreement. See, e.g., Smith v. ComputerTraining.com, 

Inc., 772 F. Supp.2d 850 (E.D. Mich. 2011).
arbitrator provided for in the agreement cannot or will not perform,” and rejecting the 

argument that the named arbitrator was “integral” to the arbitration agreement). 

{¶13} Applying §5 of the FAA to the Arbitration Agreement, the result is 

inescapable: the parties’ agreement to arbitrate survives the NAF’s unavailability. The 

Arbitration Agreement did provide a method of naming or appointing an arbitrator, but 

that method became unworkable due to the NAF’s unavailability and the Citraros refusal 

to avail themselves of the alternative arbiter: the AAA. In such circumstances, §5 

empowers the trial court to save the agreement by appointing an arbitrator.7

 In this case, 

the trial court erred in ruling that the Arbitration Agreement had become unenforceable. 

Instead, the trial court should have enforced the Arbitration Agreement and appointed an 

arbitrator. 

{¶14} Second, the severability clause in the Arbitration Agreement evidences the 

parties’ intent to arbitrate regardless of the NAF’s availability. The clause states that 

“[i]f any portion of this Arbitration Agreement cannot be enforced, the rest of the 

Arbitration Agreement will continue to apply * * * .” Note § XVI(10). The contested 

paragraph of the Arbitration Agreement provides that: 

The NAF will be the Administrator unless: (a) you and I agree otherwise; 

(b) I am the Claimant and I initiate an arbitration before the AAA or (c) I 

assert a Claim in court, you elect to arbitrate the Claim and I give you 

written notice that I am selecting the AAA as Administrator within 20 days 

thereafter (or, if I dispute your right to require arbitration of my Claim, I 

 7

In other words, the Citraros could choose to arbitrate using the AAA or they could choose to 

have the trial court select the arbitrator. But they did not have the option of evading the Arbitration 

Agreement altogether and filing an action in court. 
select the AAA as Administrator within 20 days after that dispute is finally 

resolved). 

Note § XVI(3). 

{¶15} The NAF is no longer an available administrator and none of the conditions 

have been fulfilled under which the AAA would be selected. Because this provision of 

the Arbitration Agreement is unenforceable, it must be severed from the Arbitration 

Agreement. 

{¶16} But the rest of the Arbitration Agreement continues to apply, and what 

remains manifests the parties’ clear intention to arbitrate. See Morrison v. Circuit City 

Stores, 317 F.3d 646, 675 (6th Cir. 2003) (en banc) (where arbitration agreement contains 

severability clause, district court must compel arbitration after severing unenforceable 

provisions). Section XVI sets forth that the parties “agree that either party may elect to 

arbitrate – and require the other party to arbitrate – any Claim * * * ,” and if a party 

gives notice of an intent to arbitrate a claim, that claim “shall be resolved by arbitration.” 

Essentially, the Note provided the Citraros with two choices: to either reject the 

Arbitration Agreement altogether (Note § XVI(1)), or to arbitrate any disputes that might 

arise between the Citraros and Sallie Mae. As the Citraros did not reject the Arbitration 

Agreement, they signaled their agreement to arbitrate their claims. 

{¶17} The Citraros argue that when a selected forum cannot arbitrate a claim, a 

court cannot enforce the arbitration agreement, regardless of the existence of a 

severability clause. But the Citraros rely on case law where the arbitration agreement 

identified an exclusive forum which then became unavailable. See e.g., Klima v. 
Evangelical Lutheran Good Samaritan Soc., 10-cv-1390-JAR-JPO, 2011 U.S. Dist. 

LEXIS 129486 (D. Kan. Nov. 8, 2011) (refusing to enforce an arbitration agreement in 

the wake of the NAF’s unavailability where the agreement contained express language 

that NAF was the exclusive arbitrator and that the arbitration “shall be conducted * * * in 

accordance with the [NAF] Code of Procedure for arbitration.”). 

{¶18} We need not decide whether such language would render the Arbitration 

Agreement unenforceable. In the instant case, although the NAF is named as the default 

arbitrator, NAF was not named as the “exclusive” arbitrator to the Arbitration Agreement. 

 Rather, the Arbitration Agreement named the NAF as one of two eligible administrators 

and did not specify that either was exclusive. Moreover, rather than reference the rules 

of any particular arbitrator, the Arbitration Agreement here generally specifies that any 

claim “shall be resolved by arbitration under this Arbitration Agreement and the 

applicable rules of the Administrator then in effect.” Note §XVII(5). Accordingly, the 

Citraros argument is unavailing.8

 

{¶19} The trial court’s order is reversed. Although the question of whether the 

Arbitration Agreement was unconscionable still lingers, we conclude that this is a matter 

for the trial court to resolve on remand. The Ohio Supreme Court has held that “the 

proper standard of review of a determination of whether [an] arbitration agreement is 

enforceable in light of a claim of unconscionability is de novo, but any factual findings of 

 8

Furthermore, to the extent that the Citraros raise a colorable argument, we 

are instructed to resolve any doubts in favor of arbitrability. See Masco Corp., 382 

F.3d at 627.
the trial court must be accorded appropriate deference.” Taylor Bldg. Corp. of Am. v. 

Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 2. 

{¶20} In the instant case, the trial court has yet to make any fact findings with 

respect to the allegation that the Arbitration Agreement is unconscionable. The trial court 

explicitly stated in its order that it was not addressing whether the Arbitration Agreement 

was unenforceable due to unconscionability. Accordingly, we remand this case to the 

trial court with instructions to make findings of fact and to render a ruling on whether the 

Arbitration Agreement is unconscionable as a matter of law. 9

 If the trial court 

determines that the Arbitration Agreement is not unconscionable, then the trial court is 

instructed to select an arbitrator and to issue an order compelling arbitration. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 9

We reject Sallie Mae’s argument that the Citraros waived the right to assert unconscionability 

because it was not raised in their complaint. The Citraros raised unconscionability as a defense to 

Sallie Mae’s motion to compel arbitration. There was no reason for the Citraros to raise 

unconscionability in their complaint as this defense did not ripen until Sallie Mae asserted its right to 

arbitrate the dispute. As the Citraros raised unconscionability at the appropriate time, there is no 

waiver.
__________________________________________ 

KENNETH A. ROCCO, PRESIDING JUDGE 

PATRICIA A. BLACKMON, J., and 

EILEEN T. GALLAGHER, J., CONCUR