1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

JOHN WALLER and WANDA : Civil Action

KELLY-WALLER, : No. 1:10-cv-06342 (NLH)

Plaintiffs, : OPINION

v. :

FOULKE MANAGEMENT CORPORATION :

 d/b/a CHERRY HILL DODGE AND 

 CHERRY HILL TRIPLEX; :

 CHRYSLER FINANCIAL,

Defendants. :

______________________________:

APPEARANCES:

Graham F. Baird, Esquire

Weisberg Law, P.C.

7 South Morton Ave.

Morton, PA 19070

Attorney for Plaintiffs John Waller and Wanda Kelly-Waller

Laura D. Ruccolo, Esquire

Capehart & Scatchard, PA

800 Midlantic Drive

Suite 300 S

Mt. Laurel, NJ 08054

Attorney for Defendant Foulke Management Corporation d/b/a 

Cherry Hill Dodge and Cherry Hill Triplex

HILLMAN, District Judge

 Plaintiffs, John Waller and Wanda Kelly-Waller, brought 

an action against Defendants, Foulke Management Corporation 

doing business as Cherry Hill Dodge and Cherry Hill Triplex 

(“Foulke Management”) and Chrysler Financial, under the Equal 

Opportunity Credit Act (“EOCA”), the New Jersey Consumer Fraud 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 1 of 19 PageID: 83
2

Act (“CFA”), and for fraudulent misrepresentation. Before the 

court is Foulke Management’s motion to dismiss1

 For the reasons discussed below, Foulke Management’s 

motion to dismiss the complaint and compel arbitration will be 

granted.

the complaint and 

compel arbitration. 

I. JURISDICTION

 This court has jurisdiction based on 28 U.S.C. §1331. 

The federal question being raised by the plaintiffs is their 

cause of action under ECOA. The Court has supplemental 

jurisdiction over the New Jersey CFA and fraudulent 

misrepresentation claims based on 28 U.S.C. §1367.

II. BACKGROUND

 Plaintiffs went to Foulke Management’s car dealership on 

May 24, 2010 seeking to purchase a vehicle. Plaintiffs 

purchased a 2010 Dodge Journey with an automobile loan for

$23,499 at a 24.95% interest rate. Plaintiff placed a $3,000 

deposit and signed the following documents given to them by 

Foulke Management: (1) a “Spot Delivery Agreement” (2) a 

Chrysler Financial retail installment contract (RISC); and (3) 

 1 As noted infra, when considering a motion to dismiss a 

complaint for failure to state a claim upon which relief can be 

granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must, as 

we do here, accept all well-pleaded allegations in the complaint 

as true and view them in the light most favorable to the 

plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 2 of 19 PageID: 84
3

an arbitration agreement entitled “Your Right to Maintain a 

Court Action.” 

Foulke Management issued only temporary tags to

Plaintiffs which lasted four months. After the four months, 

Foulke Management demanded Plaintiffs return the car because 

Foulke Management said they could not secure financing for the 

vehicle. Plaintiffs never received notice of the denial of 

credit. Plaintiffs now store the vehicle in a garage and cannot 

drive it because of the lack of permanent license tags. 

 In October 2010, Plaintiffs purchased a different

vehicle from another dealership due to their inability to drive 

the vehicle bought from Foulke Management. The new vehicle cost 

the plaintiffs $34,812.40, financed at an interest rate of 

13.6%. 

 Plaintiffs’ complaint alleges that Foulke Management 

charged Plaintiffs a higher price for the auto loan than the 

terms and conditions granted to persons who are not of their 

race, national origin, gender, and/or age characteristics who 

presented similar levels of risk to the lender. Plaintiffs are 

African American. Plaintiffs’ complaint further alleges that 

Foulke Management allows its employees to propose a risk level 

and base loan price unrelated to the qualifications of the 

borrowers or the risk to the lender. Further, Plaintiffs allege 

that Foulke Management has not properly instructed its employees 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 3 of 19 PageID: 85
4

or brokers regarding their obligation to treat prospective 

customers without regard to race, national origin, gender or 

age. Finally, they allege that information on each applicant’s 

race, national origin, gender and age has been available and 

known to employees and brokers, as well as to officials of 

Chrysler, who made decisions to grant or deny loans and to set 

or confirm the terms and conditions of any loan granted. 

III. DISCUSSION

A. Standard for Motion to Dismiss

 A motion to compel arbitration may properly be 

considered as a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6). Palcko v. Airbourne Express, Inc., 372 F.3d 

588, 597 (3d Cir. 2004); see also Nationwide Ins. Co. v. 

Patterson, 953 F.2d 44, 45 n.1 (3d Cir. 1991). When considering 

a motion to dismiss a complaint for failure to state a claim 

upon which relief can be granted pursuant to Rule 12(b)(6), a 

court must accept all well-pleaded allegations in the complaint 

as true and view them in light most favorable to the plaintiff. 

Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well 

settled that a pleading is sufficient if it contains “a short 

and plaint statement of the claim showing that the pleader is 

entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 4 of 19 PageID: 86
5

 A district court, in weighing a motion to dismiss, asks 

“‘not whether a plaintiff will ultimately prevail but whether 

the claimant is entitled to offer evidence to support the 

claim.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 

(2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); 

see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1935 (2009) (“Our 

decision in Twombly expounded on the pleading standard for ‘all 

civil actions[.]’” (citation omitted)). First, under the 

Twombly/Iqbal standard, a “district court must accept all of the 

complaint’s well-pleaded facts as true, but may disregard any 

legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-

211 (3d Cir. 2009). (citing Iqbal, 129 S. Ct. at 1950). Second, 

a district court “must then determine whether the facts alleged 

in the complaint are sufficient to show that the plaintiff has a 

‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 129 S. 

Ct. at 1950). “[A] complaint must do more than allege the 

plaintiff’s entitlement to relief.” Id. The defendant bears the 

burden of showing that no claim has been presented. Hedges v. 

U.S., 404 F.3d 744, 750 (3d Cir. 2005). 

 Moreover, in ruling on a motion to dismiss, a court has 

“‘discretion to address evidence outside the complaint....’” 

CitiSteel USA, Inc. v. General Electric Co., 78 F. App’x 832, 

835 (3d Cir. 2003) (quoting Pryor v. Nat’l Collegiate Athletic 

Ass’n, 288 F.3d 548, 559 (3d Cir. 2002)). Thus, the court “‘may 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 5 of 19 PageID: 87
6

consider an undisputedly authentic document that a defendant 

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.’”2

B. Arbitration 

Id. (quoting PBGC v. White 

Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

1. The Federal Arbitration Act

Section 2 of Title 9 of the United States Code states:

“a written provision in any maritime transaction or a 

contract evidencing a transaction involving commerce 

to settle by arbitration a controversy thereafter 

arising out of such contract or transaction, or the 

refusal to perform the whole or any part thereof, or 

an agreement in writing to submit to arbitration an 

existing controversy arising out of such a contract, 

transaction, or refusal, shall be valid, irrevocable, 

and enforceable, save upon such save upon such grounds 

as exist at law or in equity for the revocation of any 

contract.”

9 U.S.C.A. §2 (Westlaw 2011). Section 2 is part of the 

Federal Arbitration Act (“FAA”), which was passed to 

“‘reverse longstanding judicial hostility to arbitration 

agreements.’” Gay v. Creditinform; Intersections, Inc., 511 

F.3d 369 (3d Cir. 2007) (quoting Gilmer v. 

Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.C Ct. 

 2 To its motion, Foulke Management attaches a copy of the 

parties’ Spot Delivery Agreement and the arbitration agreement 

titled, “Your Right to Maintain a Court Action”. Plaintiffs do 

not challenge the authenticity of the documents or Foulke 

Management’s reliance on it. On the contrary, Plaintiffs 

acknowledge its existence, but argue that it is invalid because 

it is ambiguously worded. 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 6 of 19 PageID: 88
7

1647, 1651, 114 L. Ed. 2d 26 (1991)). The federal law in 

terms of the FAA governs in both state and federal court. 

Moses H. Cone Memorial Hospital v. Mercury Construction 

Corp., 460 U.S. 1, 24 (1983). Furthermore, the FAA “leaves 

no place for the exercise of discretion by a district 

court, but instead mandates that district courts shall 

direct the parties to proceed to arbitration on issues as 

to which an arbitration agreement has been signed.” Dean 

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985).

Ultimately, the FAA creates a body of federal substantive 

law creating and ordering the duty to fulfill an agreement 

to arbitrate. Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 625 (1985). 

 The FAA can apply to statutory claims. Cronin v. 

Citifinancial Servs., Inc., 2008 WL 2933869 *7 (E.D. Pa.). 

“The party seeking to avoid arbitration for a statutory 

claim has the burden of establishing that Congress intended 

to preclude arbitration of the claim.” Gay, 511 F.3d at 

379. According to the Court in Bowen, the fact that 

Congress enacted a statute which creates substantive rights 

and provides judicial remedies to defend those rights does 

not mean it has created a non-waivable, substantive “right” 

to judicial redress. Bowen v. First Family Financial 

Services, Inc., 233 F.3d 1331, 1336 (11th Cir. 2000). When 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 7 of 19 PageID: 89
8

a party agrees to arbitrate its statutory claims, they do 

not forego the substantive rights afforded to them by the 

statute. Mitsubishi Motors Corp., 473 U.S. at 628. They 

only submit their claims to an arbitral, rather than a 

judicial, forum. Id. They are trading the procedures and 

opportunity of the courtroom for the simplicity, 

informality, and expedition of arbitration. Id. “So long 

as the prospective litigant effectively may vindicate his 

or her statutory cause of action in the arbitral forum, the 

statute will continue to serve both its remedial and 

deterrent function.” Johnson v. West Suburban Bank, 225 

F.3d 366, 373 (3d Cir. 2000). When a party is bound by an 

arbitration agreement and they are raising claims founded 

on statutory rights, there is no reason to depart from FAA 

guidelines. Mitsubishi Motors Corp., 473 U.S. at 626. 

2. Favorable Policy towards Arbitration

 There is favorable state and federal policy 

towards arbitration and the enforcement of arbitration 

agreements. In determining whether a matter should be 

arbitrated, “there is a strong presumption in favor of 

arbitration, and doubts concerning the scope of arbitrable 

issues should be resolved in favor of arbitration.” Gay, 

511 F.3d at 387 (citing Great W. Mortgage, 110 F.3d at 228 

quoting Moses H. Cone Memorial Hospital, 460 U.S. at 24-

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 8 of 19 PageID: 90
9

25). Congress declared “a national policy favoring 

arbitration” and “withdrew the power of the states to 

require a judicial forum for the resolution of claims which 

the contracting parties agreed to resolve by arbitration.” 

Great Western Mortgage Corp. v. Peacock, 110 F.3d 222, 230 

(3d Cir. 1997). 

 There is a strong presumption in favor of 

arbitration and courts must fight the attempt to encroach

upon arbitration proceedings where the statute does not 

overtly allow court involvement. John Hancock Mutual Life 

Insurance Co. v. Olick, 151 F.3d 132, 137 (3d Cir. 1998). 

The allocation of roles between courts and arbitrators 

promotes efficiency because “an expectation that aligns (1) 

decision-maker with (2) comparative expertise will help 

better secure a fair and expeditious resolution of the 

underlying controversy – a goal of arbitration systems and 

judicial systems alike.” Gay, 511 F.3d at 387 (quoting 

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 

(2002)). The New Jersey Legislature has codified its 

endorsement of arbitration agreements and the New Jersey 

courts also have favored arbitration as a means of 

resolving disputes. Martindale v. Sandvik, Inc., 800 A.2d 

872, 877 (N.J. 2002). Ultimately, “federal and New Jersey 

law and public policy favor the arbitration of disputes.” 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 9 of 19 PageID: 91
10

Salvadori v. Option One Mortgage Corp., 420 F.Supp.2d 349, 

356 (D.N.J. 2006).

3. The Validity of Arbitration Agreements

 The first step in determining the validity of an 

arbitration agreement is to decide whether there was an 

agreement to arbitrate. Gay, 511 F.3d at 386. If there was 

an agreement to arbitrate, then it must be determined if 

the agreement was valid. Id. “Generally applicable 

contract defenses such as fraud, duress, or 

unconscionability, may be applied to invalidate arbitration 

agreements without contravening the FAA.” Gras v. 

Associates First Capital Corp., 786 A.2d 886, 889 (N.J. 

Super. Ct. App. Div. 2001) (quoting Doctor’s Assocs., Inc. 

v. Casarotto, 517 U.S. 681, 687 (1996)). In determining 

whether an arbitration agreement is valid, the court must 

not consider the merits of the claims giving rise to the 

controversy. Id. Additionally, “more than a disparity in 

bargaining power is needed to show that an arbitration 

agreement was not entered into willingly.” Great Western 

Mortgage Corp., 110 F.3d at 229.

 After determining whether the arbitration agreement 

was valid, the court must ask: “does the dispute between 

the parties fall within the language of the arbitration 

agreement?” John Hancock Mutual Life Insurance Co., 151 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 10 of 19 PageID: 92
11

F.3d at 137. “If highly ambiguous language is used in the 

arbitration agreement, then the court does not have to 

compel arbitration.” Rockel v. Cherry Hill Dodge, 847 A.2d 

621, 623 (N.J. Super. Ct. App. Div. 2004). Language that 

can cause ambiguity includes: conflicting arbitration terms 

and unclear verbiage. Id. at 624-625. Additionally, the 

size of the print and location of the arbitration provision 

has great relevancy to any determination of compelling 

arbitration. Id. at 627. If the arbitration agreement does 

not specifically refer to the disputes covered by the 

agreement, then it can be ambiguous as well. Garfinkel v. 

Morristown Obstetrics and Gynecology Associates, P.A., 773 

A.2d 665, 671 (N.J. 2001). In determining ambiguity, the 

point is to verify that the parties knew that in electing 

arbitration as the only remedy, they were waiving their 

time-honored right to sue. Id. at 670. 

 “Absent a compelling federal policy to the 

contrary, the sina qua non of arbitrability is simply 

stated: that a valid arbitration exists and the dispute 

falls within the contours of that agreement.” John Hancock 

Mutual Life Insurance Co., 151 F.3d at 137. When reviewing 

the validity of arbitration agreements, courts must apply 

conventional contractual principles, with a healthy regard 

for the solid federal policy in favor of arbitration. Id. 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 11 of 19 PageID: 93
12

 A party which has made the agreement to arbitrate 

should be held to it unless Congress has demonstrated an 

intention to prevent waiver of judicial remedies for the 

statutory rights at issue. Gras, 786 A.2d at 890. “The 

parties’ intentions control, but those intentions are 

generously construed as to issues of arbitrability.” 

Mitsubishi Motors Corp., 473 U.S. at 626. 

C. Applicability of Arbitration to Plaintiffs’ Causes of

Action

 Contracts to arbitrate are not to be avoided by allowing 

one party to ignore the contract and to seek help and a remedy 

from the courts. Southland Corp. v. Keating, 465 U.S. 1, 7 

(1984). Such a course of action could lead to prolonged 

litigation, which is what is sought to be eliminated by 

contracting for arbitration. Id. The burden falls on Plaintiffs 

to establish that Congress meant to preclude arbitration for 

their statutory claim. Johnson, 225 F.3d at 370-371. Such an 

intention by Congress to preclude arbitration “may be found in 

the text, legislative history, or in an ‘inherent conflict’ 

between arbitration and the statute’s underlying purposes.” Id. 

at 37. Here, Plaintiffs have not proved that Congress intended 

arbitration should be precluded in this case. 

 Plaintiffs entered into a valid arbitration agreement 

with Foulke Management. The arbitration agreement is a 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 12 of 19 PageID: 94
13

completely separate form, called “YOUR RIGHT TO MAINTAIN A COURT 

ACTION,” which employs clear language regarding the terms of the 

agreement. The arbitration agreement specifically states the 

types of disputes covered by the agreement. The disputes 

covered include “any claim or dispute based on an allegation of 

fraud or misrepresentation, including fraud in the inducement of 

this or any other agreement;” and “any claim or dispute based on 

a federal or state statute, including but not limited to the 

N.J. Consumer Fraud Act.”3

 New Jersey courts have held “that claims arising under 

the CFA may be heard and resolved through arbitration.” Gras, 

786 A.2d at 891. The court in Gras added that there was no 

inherent conflict between arbitration and the underlying 

purposes of the CFA, as Plaintiffs argue exist here. Id. at 892.

Plaintiffs are bringing claims under 

the New Jersey CFA and the United States ECOA, both of which are 

specifically covered by the arbitration agreement because the 

CFA is mentioned by name and the ECOA is a federal statute. The 

Supreme Court upheld the application of the FAA to the ECOA. 

Green Tree Financial Corp.- Ala. v. Randolph, 531 U.S. 79, 80

(2000); see also Cronin, 2008 WL 2944869 *7 (“The Supreme Court 

has upheld the application of the FAA to claims under many 

important statutory schemes, including...the ECOA.). 

 3 There are other claims specifically covered by the 

arbitration agreement, but the ones listed are the ones relevant 

to the claims brought by Plaintiffs.

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 13 of 19 PageID: 95
14

According to the Court in Gras, the N.J. CFA provides a 

successful plaintiff with other remedies that can also be 

granted by the arbitrator such as legal or equitable relief and 

award threefold the damages sustained by any person in interest. 

Id. Additionally, Plaintiffs are bringing a claim of fraudulent 

misrepresentation which is covered specifically by the 

arbitration agreement. The Supreme Court in Moses determined 

that the issue of fraud in the inducement is arbitrable. Moses 

H. Cone Memorial Hospital, 460 U.S. at 24. Furthermore, the 

words “disputes covered” are in all capital letters. Therefore, 

Plaintiffs knew of the enumerated disputes to be covered by the 

arbitration agreement, including the claims they assert now. 

 Moreover, there are no conflicting terms in the 

arbitration agreement. Bold typeface and all capital letters 

are used to indicate that the document limits rights, including 

the right to maintain a court action. The statement which 

warned Plaintiffs that they were waiving their right to a jury 

trial was in all capital letters as well. The top of the 

arbitration agreement spells out for Plaintiffs that “you” as 

used in the agreement is meant to represent Plaintiffs and that

“we” and “us” as used in the agreement is meant to represent 

Foulke Management. Finally, directly above the Plaintiffs’ 

signatures is a statement in all capital letters and bold 

typeface which states “READ THIS ARBITRATION AGREEMENT 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 14 of 19 PageID: 96
15

CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR 

RIGHT TO MAINTAIN A COURT ACTION.” Under Plaintiffs’ 

signatures, there is another statement in all capital letters 

and bold typeface stating that they understood and read the 

contents of the contract. Therefore, Plaintiffs entered into a 

valid arbitration agreement with Foulke Management. 

 Plaintiffs argue that there is conflicting arbitration 

language between the RISC and Spot Delivery Agreement. 

Plaintiffs include a chart of what they claim is language taken 

from the RISC and Spot Delivery Agreement. They appear to argue 

that since the RISC requires that any dispute be brought in 

arbitration in the State of New Jersey, whereas the Spot 

Delivery Agreement requires that any claim or dispute (including 

any dispute over the validity of the arbitration clause) be 

resolved by binding arbitration and not by court action, that 

the RISC lacks reference to the scope of arbitrability while the 

Spot Delivery Agreement expansively treats this issue. They 

also argue that the RISC is ambiguous as to whether the

arbitration shall be judicial or private arbitration, whereas 

the Spot Delivery Agreement requires “private AAA arbitration.” 

The main problem with Plaintiffs’ argument is that the 

language they include in their chart does not appear in either

agreement. Upon the Court’s review of the Spot Delivery 

Agreement, the Court found no such language as stated in 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 15 of 19 PageID: 97
16

Plaintiffs’ brief. It seems that the language that Plaintiffs 

attribute to the Spot Delivery Agreement actually appears in the 

RISC, section 21. The language Plaintiff attributes to the RISC 

does not appear in that document, nor in any of the three 

documents at issue.

The Court presumes that Plaintiffs intended to compare the 

RISC with the Arbitration Agreement, not the Spot Delivery 

Agreement, regarding the scope and procedure of the arbitration. 

In doing so, the RISC, section 21, states that “The arbitration 

hearing shall be conducted in the federal district in which you 

reside.” The Plaintiffs reside in Philadelphia, Pennsylvania. 

The Arbitration Agreement, under the heading “[Location] of 

Arbitration” states “The arbitration will take place in the 

State of New Jersey in Burlington County unless you and we both 

agreed to another [location].”4

 4 The Xerox copy of the Arbitration Agreement submitted to 

the Court is partially incomplete in that the left far most side 

is missing a few letters. Based on the context and that the 

letters “ion” appear, it seems reasonable that the missing 

letters are “locat” and that the entire word is “location.” 

The RISC also requires that the 

arbitration proceed under the applicable rules of the National 

Center for Dispute Settlement or its successor, or the National 

Arbitration Forum, or its successor. The Arbitration Agreement, 

in contrast, states that the arbitration will be conducted under 

the “Commercial/Consumer Arbitration Rules” of the American 

Arbitration Association. 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 16 of 19 PageID: 98
17

Although the two agreements contain conflicting provisions, 

it does not create such ambiguity as to render the Arbitration 

Agreement unclear. In Rockel v. Cherry Hill Dodge, 847 A.2d 

621, 623 (N.J.Super. 2004), the case relied upon by Plaintiffs, 

the court held “the uncertain content of the parties’ agreement 

to arbitrate, the contracts’ conflicting descriptions of the 

manner and procedure which would govern the arbitration 

proceedings, the absence of a definitive waiver of plaintiffs’

statutory claims, and the obscure appearance and location of the 

arbitration provisions, militate against the entry of an order 

requiring arbitration ... .” The court found that defendant’s 

inclusion of two conflicting arbitration provisions in the 

contract documents confounded any clear understanding of the 

parties’ undertaking.

Here, unlike in Rockel, the Plaintiffs signed a separate 

Arbitration Agreement entitled “YOUR RIGHT TO MAINTAIN A COURT 

ACTION” which expressly states “If you have signed a “Retail 

Installment Contract in connection with this transaction which 

contains a different arbitration agreement, then this 

arbitration agreement shall supersede that arbitration agreement 

and this arbitration agreement shall control any claims or 

disputes between you and us.” The separate arbitration 

agreement states that it supersedes the RISC and, therefore,

effectively overrides the arbitration provisions in the RISC.

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 17 of 19 PageID: 99
18

In addition, here, unlike in Rockel, the Arbitration 

Agreement expressly covers any statute disputes or disputes 

brought pursuant to the N.J. Consumer Fraud Act. Finally, the 

arbitration provisions are not included in small language, but 

in a separate agreement with bold lettering advising Plaintiffs 

that they should read the agreement carefully and that it limits 

certain rights, including their right to maintain a court 

action.5

Thus, we conclude that Plaintiffs entered into a valid 

arbitration agreement with Foulke Management. The language was 

unambiguous and clearly spelled out what was covered by the 

agreement, and all of the claims asserted by Plaintiffs are able 

to be decided by an arbitrator. 

 

IV. Conclusion

 There is strong federal and New Jersey policy favoring 

arbitration. Plaintiffs and Foulke Management entered into a 

valid arbitration agreement. All of Plaintiffs’ claims are able 

to be resolved through arbitration. Thus, there is no reason 

for the court to prevent arbitration of Plaintiffs’ claims. 

 5 Although Defendant argues it cannot control the specifics 

of the language of the RISC because it is provided to them by 

the financial company, this argument is unavailing. Foulke 

Management supplies the RISC to its customers to sign along with 

other sale documents and is listed on the RISC as the 

“Creditor/Seller.” 

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 18 of 19 PageID: 100
19

Therefore, Foulke Management’s motion to dismiss and compel 

arbitration will be granted.

At Camden, New Jersey s/Noel L. Hillman 

Noel L. Hillman, U.S.D.J.

Dated: August 11, 2011

Case 1:10-cv-06342-NLH-AMD Document 13 Filed 08/11/11 Page 19 of 19 PageID: 101