District Judge of the Southern District of Texas, sitting by designation. *

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not **

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60164

FREDERICK GRIFFIN; ANNIE Y GRIFFIN,

Plaintiffs - Appellants

v.

ABN AMRO MORTGAGE GROUP INC, its affiliates, heirs and assigns;

MORRIS & ASSOCIATES; EMILY K COURTEAU, individually and in her

capacity as substituted trustee on the deed of trust; CITIMORTGAGE INC, as

Successor in interest to ABN,

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 2:08-CV-1

Before JOLLY and GARZA, Circuit Judges, and MILLER , District Judge.

*

PER CURIAM:**

Frederick and Annie Griffin appeal the district court’s grant of defendants

ABN AMRO Mortgage Group Inc. (“ABN”), Morris & Associates, Emily

Coutreau, and CitiMortgage, Inc.’s (collectively, “Defendants”) motion to compel

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2010

Lyle W. Cayce

Clerk

Case: 09-60164 Document: 00511113537 Page: 1 Date Filed: 05/17/2010
No. 09-60164

 The defendants argue that the district court’s denial of the Griffins’ motion to remand

1

to state court was not raised in the Griffins’ Notice of Appeal and that, consequently, the

Griffins are barred from appealing this order. We find that the defendants properly had notice

of appeal of this issue from the arguments presented in the Griffins’ briefing. See Pluet v.

Frazier, 355 F.3d 381, 383 n.1 (5th Cir. 2004).

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arbitration of the Griffins’ dispute pursuant to the Federal Arbitration Act, 9

U.S.C. § 1, et seq. The clause at issue in the Griffins’ mortgage agreement states

in pertinent part that “[a]ll disputes, claims, or controversies arising from or

related to the loan evidenced by the Note, including statutory claims, shall be

resolved by binding arbitration, and not by court action.” Also included in the

arbitration clause is a statement that “any claims can be filed at any National

Arbitration Forum office.”

As a preliminary matter, the Griffins argue that removal of this case to

federal court was improper because the Defendants did not present adequate

evidence to show that CitiMortgage and ABN consented to Morris & Associates’

removal. However, the district court correctly found that Morris & Associates, 1

a law firm, represented CitiMortgage in this dispute, and the Defendants

presented evidence that CitiMortgage and ABN had merged. Both entities were

aware of and consented to Morris & Associates’ representation, including the

decision to remove this case to federal court. Accordingly, the district court did

not err in denying the Griffins’ motion to remand to state court.

The Griffins contend that the district court erred in compelling arbitration

because this dispute is beyond the scope of the arbitration clause and because

the agreement is unconscionable. Neither argument has merit. There is no

reason to characterize this dispute as a scheme to defraud the Griffins rather

than a mere dispute over a loan, which is well within the clause’s authority.

Furthermore, this was not a contract of adhesion, as the plain language of the

arbitration clause indicates that the Griffins were under no obligation to accept

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No. 09-60164

 The last paragraph above the signature block in the arbitration rider reads: “THIS 2

IS A VOLUNTARY ARBITRATION AGREEMENT. IF YOU DECLINE TO SIGN THIS

ARBITRATION AGREEMENT, LENDER WILL NOT REFUSE TO COMPLETE THE LOAN

TRANSACTION BECAUSE OF YOUR DECISION.” The Griffins contend that they were

required to agree to the arbitration clause in order to receive their loan modification, but the

Defendants used the arbitration rider appended to the Griffins’ original loan as the basis for

their motion to compel. In the absence of contrary evidence, we have no basis to believe the

Griffins’ agreement to the arbitration clause was anything but voluntary and knowing.

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the arbitration clause as a condition of their mortgage agreement. See E. Ford, 2

Inc. v. Taylor, 826 So. 2d 709, 716 (Miss. 2002). Additionally, both parties to the

agreement had the power to compel arbitration over a dispute, indicating

mutuality of the arbitration clause. Accordingly, the Griffins have presented no

evidence indicating that they were required to enter into the agreement in order

to receive their loan modification. 

The Griffins also argue that the claims against Morris & Associates and

Coutreau, one of its attorneys, were not arbitrable because these parties were

not parties to the agreement. However, equitable estoppel permits a

nonsignatory to an arbitration clause to compel arbitration against a signatory

“when the signatory . . . raises allegations of substantially interdependent and

concerted misconduct by both the nonsignatory and one or more of the

signatories to the contract.” Grigson v. Creative Artists Agency, L.L.C., 210 F.3d

524, 527 (5th Cir. 2000) (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d

942, 947 (11th Cir. 1999)). Here, the Griffins’ claims against ABN,

CitiMortgage, Morris & Associates, and Coutreau are substantially

interdependent, as they all relate to the Griffins’ default in terms of payment of

the note and deed of trust, and subsequent foreclosure proceedings. Thus,

equitable estoppel permitted the district court to compel arbitration proceedings

against Morris & Associates and Coutreau.

However, the Griffins raise the issue that the National Arbitration Forum,

the specified forum in the arbitration clause, no longer hears this type of case.

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No. 09-60164

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This issue was not raised before the district court but could affect the outcome

of the case. Accordingly, we VACATE the district court’s order compelling

arbitration and REMAND this case for the district court to decide in the first

instance whether this new issue affects its decision to find the arbitration

agreement enforceable.

Case: 09-60164 Document: 00511113537 Page: 4 Date Filed: 05/17/2010