SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5325-17T2

ROSA M. WILLIAMS-HOPKINS,

on behalf of herself and those

similarly situated,

Plaintiff-Appellant,

v.

LVNV FUNDING, LLC,

Defendant-Respondent.

______________________________

Argued March 27, 2019 – Decided April 26, 2019

Before Judges Koblitz, Currier, and Mayer.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-6190-17.

Scott C. Borison (Legg Law Firm, LLP), of the District 

of Columbia, Maryland, and California bars, admitted 

pro hac vice, argued the cause for appellant (Kim Law 

Firm, LLC, and Scott C. Borison, attorneys; Yongmoon 

Kim and Scott Borison, of counsel and on the briefs).

Michael A. Iannucci argued the cause for respondent 

(Blank Rome, LLP, attorneys; Michael A. Iannucci, on 

the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-5325-17T2

PER CURIAM

Plaintiff Rosa M. Williams-Hopkins appeals from a June 8, 2018 order 

compelling arbitration and dismissing her complaint with prejudice. We affirm 

the order compelling arbitration. However, we remand to the trial court to issue 

an amended order staying the case pending arbitration or, in the alternative, 

dismissing the complaint without prejudice.

The facts are set forth in plaintiff's complaint. In 2003, plaintiff acquired 

a credit card from First Premier Bank (Bank). To be issued a credit card, 

plaintiff was required to sign a Credit Card Contract and Initial Disclosure 

Agreement (Agreement), indicating her assent to the terms and conditions in the 

document.

The Agreement stated "any claim, dispute or controversy between you and 

us arising from or relating to the [c]ontract or your [c]redit [a]ccount 

relationship . . . including, but not limited to the validity, enforceability or scope 

of the [a]rbitration [p]rovision [or] the contract. . . shall be settled by binding 

arbitration . . . ." The term "claim" addressed "claims of every kind and nature, 

including but not limited to initial claims, counterclaims, cross claims and third 

party claims, and claims based upon contract, tort, fraud and other torts, statutes, 

. . . regulations, common law and equity." The word "contract" encompassed
3

A-5325-17T2

"the terms and conditions outlined in [the] Agreement." The term "us" included

the Bank "and all of its affiliates, licensees, predecessors, successors, assigns, 

[and] any purchaser of your [c]redit [a]ccount . . . ." The Agreement also 

included, in capital letters, a "Waiver of Right to Trial" and "Waiver of Right to 

Participate in Class Action."

Plaintiff did not deny signing the Agreement. Nor did she disavow her 

use of the credit card for three years before defaulting on her payment 

obligations.

Defendant LVNV Funding, LLC purchased plaintiff's credit card account 

debt from the Bank. Plaintiff did not dispute that defendant purchased her debt 

related to the credit card.

On October 18, 2017, plaintiff commenced a class action lawsuit against 

defendant. Defendant moved to dismiss plaintiff's complaint and compel 

arbitration in accordance with the Agreement. After hearing the arguments of 

counsel, the motion judge granted defendant's motion and dismissed plaintiff's

complaint with prejudice. The judge concluded plaintiff signed the Agreement 

and, consistent with the terms and conditions in the Agreement, plaintiff's claims 

were required to be resolved through arbitration.
4

A-5325-17T2

On appeal, plaintiff argues defendant failed to prove it had a valid 

assignment of the Agreement from the Bank. Absent evidence of a valid 

assignment, plaintiff claims defendant cannot compel arbitration. 1

"The existence of a valid and enforceable arbitration agreement poses a 

question of law" requiring our de novo review. Barr v. Bishop Rosen & Co., 

Inc., 442 N.J. Super. 599, 605 (App. Div. 2015) (citing Hirsch v. Amper Fin. 

Servs., LLC, 215 N.J. 174, 186 (2013)). "Our review of a contract, generally,

is de novo, and therefore we owe no special deference to the trial court's . . . 

interpretation. Our approach in construing an arbitration provision of a contract 

is governed by the same de novo standard of review." Atalese v U.S. Legal 

Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014) (citation omitted).

Both federal and state law governing arbitration agreements apply to this 

matter. The Federal Arbitration Act, 9 U.S.C. §§ 1 to 16, and the Uniform

Arbitration Act, N.J.S.A. 2A:23B-1 to -32, support arbitration of disputes. 

Roach v. BM Motoring, LLC, 228 N.J. 163, 173 (2017); Hojnowski v. Vans 

Skate Park, 187 N.J. 323, 342 (2006).

 

1

 Plaintiff contends she raised this issue to the trial court. However, motion 

briefs are not part of the record on appeal. See R. 2:6-1(a)(2). In reviewing the 

transcript of the motion to compel arbitration, we note the issue was not argued 

before the motion judge.
5

A-5325-17T2

The Agreement states any claim "including, but not limited to the validity, 

enforceability or scope of the [a]rbitration [p]rovision [or] the contract" shall be 

"settled by binding arbitration." The Agreement expressly provides neither 

party has "the right to litigate any claim in court or have a jury trial on that 

claim." The Agreement applies to plaintiff and "any purchaser of [a] [c]redit 

[a]ccount."

The Agreement also provides any claim shall be adjudicated by an 

arbitrator. The United States Supreme Court has held "a court may not decide 

an arbitrability question that the parties have delegated to an arbitrator." Henry 

Schein, Inc. v. Archer & White Sales, Inc., ___ U.S. ___, 139 S. Ct. 524, 530 

(2019); see also Amalgamated Transit Union, Local 880 v. N.J. Transit Bus 

Operations, Inc., 200 N.J. 105, 118 (2009) (holding "[a] court's duty is to refrain 

from adjudicating the merits of a dispute that properly belongs to an arbitrator").

Here, plaintiff's claim relates to the Bank's assignment of the Agreement 

to defendant. This issue, as well as other issues raised by plaintiff, must be 

submitted to arbitration in accordance with the terms of the Agreement. During 

oral argument before the panel, defendant conceded the arbitrator should 

determine whether the Bank assigned to defendant all rights under the 

Agreement, including the right to compel arbitration.
6

A-5325-17T2

While we affirm the order compelling arbitration of plaintiff's claims, the 

judge improvidently dismissed plaintiff's complaint with prejudice. See GMAC 

v. Pittella, 205 N.J. 572, 582 n.6 (2011) (citing N.J.S.A. 2A:23B-7(g)). The 

Uniform Arbitration Act provides for stays, rather than dismissals, of matters 

pending arbitration. Ibid. Therefore, we remand the matter to the trial court to 

enter an amended order staying the action pending arbitration or, in the 

alternative, dismissing the complaint without prejudice.

Affirmed as to compelling arbitration. Remanded for the entry of an 

amended order consistent with this opinion. We do not retain jurisdiction.