Common use of TERMS GOVERNING THOSE DISPUTES SUBMITTED TO ARBITRATION Clause in Contracts

TERMS GOVERNING THOSE DISPUTES SUBMITTED TO ARBITRATION. This Section 2 governs Disputes that are submitted for binding arbitration under subsection 26.1.4. This Section 2 shall not apply to any Dispute that is pending in a state or federal court located in the State of California, except to the extent such Dispute may also be pending in a state or federal court located outside of California. An arbitrator shall have no authority to determine the validity, enforceability, meaning and scope of this Dispute Resolution Provision, or (ii) class action claims brought by either party as a class representative on behalf of others, or by a class representative on either party’s behalf as a class member, which matters may be determined only by a court without a jury. Arbitration under this provision shall be conducted before a single arbitrator through either the National Arbitration Forum (“NAF”) or Judicial Arbitration and Mediation Service, Inc. (JAMS), as selected by the initiating party, in accordance with the rules of NAF or JAMS (the “Administrator”). However, if the parties agree, a licensed attorney may be selected by the parties to conduct the arbitration without an Administrator. If NAF and JAMS both decline to administer arbitration of the Dispute, and if the parties are unable to mutually agree upon a licensed attorney to act as arbitrator without an Administrator, then either party may file a Lawsuit and move for an ADR Order. The arbitrator, howsoever appointed, shall have expertise in the subject matter of the Dispute. Venue for the arbitration proceeding shall be as stated elsewhere in this Agreement with respect to any judicial proceedings between the parties. Absent such a provision, the arbitration shall be conducted at a location determined by mutual agreement of the parties or by the Administrator if no agreement can be reached. The arbitrator shall apply the law of the state specified in the agreement giving rise to the Dispute.

TERMS GOVERNING THOSE DISPUTES SUBMITTED TO ARBITRATION. This Section 2 governs Disputes that are submitted for binding arbitration under subsection 26.1.425.1.4. This Section 2 shall not apply to any Dispute that is pending in a state or federal court located in the State of California, except to the extent such Dispute may also be pending in a state or federal court located outside of California. An arbitrator shall have no authority to determine the validity, enforceability, meaning and scope of this Dispute Resolution Provision, or (ii) class action claims brought by either party as a class representative on behalf of others, or by a class representative on either party’s behalf as a class member, which matters may be determined only by a court without a jury. Arbitration under this provision shall be conducted before a single arbitrator through either the National Arbitration Forum (“NAF”) or Judicial Arbitration and Mediation Service, Inc. (JAMS), as selected by the initiating party, in accordance with the rules of NAF or JAMS (the “Administrator”). However, if the parties agree, a licensed attorney may be selected by the parties to conduct the arbitration without an Administrator. If NAF and JAMS both decline to administer arbitration of the Dispute, and if the parties are unable to mutually agree upon a licensed attorney to act as arbitrator without an Administrator, then either party may file a Lawsuit and move for an ADR Order. The arbitrator, howsoever appointed, shall have expertise in the subject matter of the Dispute. Venue for the arbitration proceeding shall be as stated elsewhere in this Agreement with respect to any judicial proceedings between the parties. Absent such a provision, the arbitration shall be conducted at a location determined by mutual agreement of the parties or by the Administrator if no agreement can be reached. The arbitrator shall apply the law of the state specified in the agreement giving rise to the Dispute. In any arbitration commenced by a consumer regarding a consumer Dispute, Lender or Bank shall pay one half of the Administrator's initial filing fee, up to $500. If Lender or Bank commences arbitration or is the moving party obtaining an ADR Order, Lender or Bank shall pay all Administrator and arbitrator fees, regardless of whether or not the consumer is the prevailing party in such arbitration, unless such Dispute involves a claim for damages by a consumer and is found by the arbitrator to be frivolous. For this paragraph, “consumer Dispute” shall mean a Dispute involving credit or services provided by Lender or Bank, primarily for personal, family or household purposes, in which the claim for damages is less than $75,000. The Administrator and the arbitrator shall have the authority, to the extent practicable, to take any reasonable action to require the arbitration proceeding to be completed within 180 days of commencing the arbitration. The arbitrator: (i) will render a decision and any award applying applicable law; (ii) will hear and rule on appropriate dispositive motions for judgment on the pleadings, for failure to state a claim, or for full or partial summary judgment; (iii) will give effect to any statutory or contractual limitations period (e.g., any statute of limitations) in determining any Dispute or defense; (iv) shall have the authority to impose sanctions on any party that fails to comply with time periods imposed by the Administrator or the arbitrator, including, without limitation, the sanction of entering a final award against the party that fails to comply; (v) shall have authority to award costs and fees (including attorneys' fees and costs, arbitration administration fees and costs, and arbitrator(s)' fees) to the extent permitted by law; (vi) shall recognize and honor claims of privilege recognized at law; and (vii) with regard to motions and the arbitration hearing, shall apply the Federal Rules of Evidence. The doctrines of compulsory counterclaim, res judicata, and collateral estoppel shall apply to any arbitration proceeding hereunder. Commencement of an arbitration by any party shall not prevent any party from at any time (i) seeking and obtaining from a court of competent jurisdiction (notwithstanding ongoing arbitration) provisional or ancillary remedies including but not limited to injunctive relief, temporary restraining orders, property preservation orders, foreclosure, sequestration, eviction, attachment, replevin, garnishment, and/or the appointment of a receiver; or (ii) availing itself of any self-help remedies such as setoff and repossession rights or non-judicial foreclosure of collateral. The exercise of such rights shall not constitute a waiver of the right to submit any Dispute to arbitration. Judgment upon an arbitration award may be entered in any court having jurisdiction except that, if the arbitration award exceeds $200,000, any party shall be entitled to a de novo appeal of the award before a panel of three arbitrators. To allow for such appeal, if the award (including Administrator, arbitrator, and attorney’s fees and costs) exceeds $200,000, the arbitrator will issue a written, reasoned decision supporting the award, including a statement of authority and its application to the Dispute. A request for de novo appeal must be filed with the arbitrator within 30 days following the date of the arbitration award; if such a request is not made within that time period, the arbitration award shall become final and binding. On appeal, the arbitrators shall review the award de novo, meaning that they shall reach their own findings of fact and conclusions of law rather than deferring in any manner to the original arbitrator. Appeal of an arbitration award shall be pursuant to the rules of the Administrator; if the Administrator has no such rules, then the JAMS arbitration appellate rules shall apply. To request information on how to submit an arbitration claim, or to request a copy of an Administrator’s rules or fee schedule, please contact the Administrators as follows: JAMS: 0000 Xxxx Xx., Xxxxx 000, Xxxxxx, XX 00000, Phone: (000) 000-0000, Fax: (000) 000-0000, E-mail: xxxx@xxxxxxx.xxx, Website: xxx.xxxxxxx.xxx; NAF: National Arbitration Forum, P.O. Box 50191, Minneapolis, MN 00000-0000, Phone (000) 000-0000, E-Mail: xxxx@xxxxxxxx.xxx, Website: xxx.xxxxxxxx.xxx. Arbitration under this provision concerns a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. If the terms of this Section 2 vary from the Administrator’s rules, this Section 2 shall control. SECTION 3: