[00:00:02] Speaker 06:
Good morning, everyone.

[00:00:05] Speaker 06:
We have four cases on our docket today.

[00:00:09] Speaker 06:
One case ended up being submitted.

[00:00:15] Speaker 06:
And so our plan this morning, at least right now, is to take a break after two cases and then come back and do the last two.

[00:00:27] Speaker 06:
Call the first case, Parisi versus Greensky, case number 23-6218.

[00:00:49] Speaker 02:
Good morning, Your Honors.

[00:00:50] Speaker 02:
Appreciate the opportunity to be here.

[00:00:53] Speaker 02:
My co-counsel, Greensky, and I are going to be splitting our time.

[00:00:58] Speaker 02:
So I will be taking the first six minutes.

[00:01:00] Speaker 02:
He will be taking the second six minutes.

[00:01:01] Speaker 02:
And we will be reserving one and a half minutes each for rebuttal.

[00:01:05] Speaker 06:
And you understand that's on you.

[00:01:06] Speaker 06:
I'm not going to keep track for you.

[00:01:08] Speaker 02:
Yes, Your Honor.

[00:01:09] Speaker 02:
OK, thanks.

[00:01:11] Speaker 02:
The issues we think that decide this case are what type of challenge Parisi made below in the district court, and did that challenge apply to the arbitration agreement or to the entire agreement as a whole?

[00:01:23] Speaker 02:
Because 60 years of jurisprudence in the Supreme Court says that the challenge to an argument as a whole goes to the arbitrator to decide.

[00:01:33] Speaker 02:
And the first issue I want the court to pay attention to

[00:01:36] Speaker 02:
is the type of arguments that were raised below.

[00:01:39] Speaker 02:
Parisi argued, lack of meeting of the minds of essential terms and lack of consideration because the parties did not agree on financing terms.

[00:01:49] Speaker 05:
Who made the original offer vis-a-vis Anderson and Parisi?

[00:01:56] Speaker 02:
Your Honor, the offer was made on the iPad, essentially.

[00:02:00] Speaker 05:
Who made the offer?

[00:02:02] Speaker 02:
It would have been RBA.

[00:02:04] Speaker 05:
OK.

[00:02:04] Speaker 02:
Okay.

[00:02:06] Speaker 02:
And it would have been executed on that iPad.

[00:02:09] Speaker 02:
And she signed not once, but twice to confirm her agreement to the terms of the contract, Your Honor.

[00:02:21] Speaker 02:
But we think that, you know,

[00:02:23] Speaker 02:
She now argues fraud in the execution and lack of noticeable terms.

[00:02:28] Speaker 05:
Let me ask you another question.

[00:02:29] Speaker 05:
So your position is, is that once you put the iPad in front of her with the offer and she signed all the pages on the iPad that you had a deal.

[00:02:42] Speaker 02:
Oklahoma law says that a party is bound by the contract that they sign.

[00:02:48] Speaker 05:
Okay.

[00:02:48] Speaker 05:
So you say they had a deal.

[00:02:49] Speaker 05:
Yes.

[00:02:50] Speaker 05:
All right.

[00:02:51] Speaker 05:
What would have happened if Green Sky had responded, not that she was approved, but on the contrary, they had said, we deny her any financing at all.

[00:03:05] Speaker 02:
We believe that the contract between RBA and Pre-Z would still stand.

[00:03:10] Speaker 02:
And the reason is the Windows contract in and of itself, you look at the four corners of the contract and only the four corners of the contract, it says that we entered into a contract for the installation of Windows at a specific price and it has a green sky financing form.

[00:03:25] Speaker 02:
It does specify the plan.

[00:03:27] Speaker 02:
that she was approved for or supposed to be approved for.

[00:03:31] Speaker 02:
And the determination essentially of what that green sky financing form really means is essentially going to be decided on the merits of the case.

[00:03:39] Speaker 05:
Would she have had windows?

[00:03:42] Speaker 05:
Of course.

[00:03:42] Speaker 05:
I mean, why doesn't she have windows now?

[00:03:45] Speaker 05:
I mean, if you had a deal and you were ready to perform and you were going to perform and the financing fell through, why doesn't she have windows?

[00:03:55] Speaker 05:
Well, I think that goes to the merits of the case instead of dealing with the issue of who decides, essentially, whether or not... Well, what I'm trying to decide is whether Anderson really believed that they had a deal before financing came through.

[00:04:12] Speaker 02:
Yes.

[00:04:14] Speaker 02:
And the way this usually works, this is not really part of the record, but the way this usually works is that we get a down payment and that allows us to order the windows

[00:04:24] Speaker 02:
We order the windows.

[00:04:25] Speaker 02:
Once we order the windows, we can't cancel it just like Parisa can't cancel her contract.

[00:04:30] Speaker 02:
And then once we get the windows in, we schedule an installation.

[00:04:33] Speaker 02:
And the reason that I believe that this wouldn't have been, the installation of the windows wouldn't have occurred is because she disputed the financing.

[00:04:42] Speaker 02:
Again, that's not part of the record here.

[00:04:44] Speaker 02:
The real issue is whether or not the arbitrator decides if this issue, whether the arbitrator decides whether the contract is valid or not.

[00:04:54] Speaker 05:
Fair enough.

[00:04:55] Speaker 03:
Go ahead.

[00:04:57] Speaker 03:
The window agreement references the promotional financing 3541.

[00:05:04] Speaker 03:
What does that mean in terms of what the window agreement really is?

[00:05:13] Speaker 02:
It's going to be up to a arbitrator, we believe, to decide exactly what that is.

[00:05:17] Speaker 03:
No, let's just skip that.

[00:05:19] Speaker 03:
Just go to us.

[00:05:21] Speaker 03:
It's an issue that we may have to address.

[00:05:24] Speaker 02:
Right.

[00:05:24] Speaker 02:
Well, it's our position that essentially that was not a contingent term.

[00:05:29] Speaker 02:
Um, it was, it was a simply identifying that she was financing the purchase and the type of plan that she applied for.

[00:05:37] Speaker 02:
And then it specified essentially that the terms and conditions that she needed, that, that, um, governed her loan needed to actually be, um, be dealt with with Green Sky.

[00:05:50] Speaker 03:
Well, it, it, it, and then it references generally financing in another place, doesn't it?

[00:05:56] Speaker 02:
It does reference financing.

[00:05:59] Speaker 03:
Isn't that reference ambiguous because of the other reference to 3541 financing?

[00:06:07] Speaker 02:
I don't think so.

[00:06:08] Speaker 02:
I mean, I think financing was part of the deal.

[00:06:10] Speaker 02:
We knew that she was going to finance it.

[00:06:13] Speaker 03:
But this reference to promotional financing being in there, doesn't that reflect upon the state of mind of one of the parties to this purported agreement?

[00:06:25] Speaker 02:
I think what the contract says, the four corners of the contract, it says that this was supposed to be a finance transaction, but it also had other terms that still bounded to the contract.

[00:06:37] Speaker 02:
It wasn't contingent.

[00:06:38] Speaker 03:
No, that's not my question.

[00:06:40] Speaker 03:
I'm saying, doesn't the reference to the promotional financing in the window agreement indicate what the plaintiff's state of mind was vis-a-vis entering this contract?

[00:06:54] Speaker 02:
I believe it indicates what it says and it indicates that... You're not going to answer my question, are you?

[00:06:59] Speaker 03:
You can say yes or you can say no.

[00:07:02] Speaker 03:
Does it reflect upon the plaintiff's state of mind in entering into this purported agreement?

[00:07:09] Speaker 02:
I believe what it references is what the parties agreed upon and they agreed upon that this is the term of agreement that financing that she was applying for.

[00:07:20] Speaker 03:
So you didn't give me... I asked for a yes or no and you didn't give me either one.

[00:07:24] Speaker 03:
Does it reflect upon her state of mind?

[00:07:29] Speaker 02:
It reflects upon the, I guess, the intentions of both parties, essentially, of what they agreed upon.

[00:07:35] Speaker 03:
All right.

[00:07:36] Speaker 03:
So then promotional financing is what it means, correct?

[00:07:40] Speaker 02:
The promotional financing, I think if you look at this transaction, the only dispute we really have are financing terms, right?

[00:07:51] Speaker 02:
I mean, she agreed to purchase the windows.

[00:07:53] Speaker 02:
There was no dispute whatsoever except for when she didn't get approved for the financing.

[00:07:59] Speaker 06:
But she said, her testimony is that she made it clear that she only could purchase the windows.

[00:08:07] Speaker 06:
if she had the promotional financing.

[00:08:10] Speaker 02:
And she did.

[00:08:10] Speaker 02:
And that's what we put on the contract.

[00:08:12] Speaker 02:
And that is what is on our contract, on the four corners of our contract.

[00:08:15] Speaker 06:
And she didn't get the promotional financing.

[00:08:18] Speaker 06:
But somehow she got a contract plus

[00:08:21] Speaker 06:
Right.

[00:08:21] Speaker 06:
25%.

[00:08:22] Speaker 02:
And that happens.

[00:08:25] Speaker 02:
Sometimes people don't qualify.

[00:08:26] Speaker 02:
It doesn't mean it's fraud and execution or misrepresentation.

[00:08:31] Speaker 02:
It just means that she didn't qualify.

[00:08:33] Speaker 02:
And if she didn't qualify, then we would have to have the arbitrator or the court decide essentially what that means.

[00:08:40] Speaker 02:
Does that mean it's an invalid contract?

[00:08:42] Speaker 02:
Does that mean it's illusory?

[00:08:43] Speaker 02:
But still, it doesn't come down to the formation of the contract.

[00:08:47] Speaker 02:
And the formation of a contract actually occurred

[00:08:50] Speaker 02:
which, and the formation of the arbitration agreement actually occurred, which means the decisions that we're making today, the decisions that the district court made, they all should have gone to the arbitrator to decide.

[00:09:01] Speaker 02:
And I'm sorry, but I have to get my co-counsel's time.

[00:09:03] Speaker 05:
Hold on.

[00:09:03] Speaker 05:
I've got one more question.

[00:09:05] Speaker 05:
So, who drew down on the shopping pass?

[00:09:10] Speaker 05:
Who authorized the payment?

[00:09:14] Speaker 02:
That is a green sky question.

[00:09:16] Speaker 05:
Well, you got the money.

[00:09:18] Speaker 02:
We did get the money from Green Sky.

[00:09:22] Speaker 05:
All the briefs use the passive voice on that.

[00:09:25] Speaker 05:
It was drawn down.

[00:09:26] Speaker 05:
Is it your position that Anderson did not request the funds so it can be drawn down?

[00:09:37] Speaker 05:
I mean, how did that happen?

[00:09:38] Speaker 02:
Again, this is not in the record, and this is why if there are these disputed issues, there really should be a formation trial.

[00:09:47] Speaker 02:
But the way that that would have occurred typically is if we entered into the contract.

[00:09:51] Speaker 05:
Well, there is evidence in the record.

[00:09:52] Speaker 05:
She said she did not authorize it.

[00:09:55] Speaker 02:
Well, she entered in a contract agreeing to a deposit essentially from the financing, which we received.

[00:10:01] Speaker 05:
Where is that in your contract?

[00:10:05] Speaker 05:
That she agrees you can draw down

[00:10:09] Speaker 02:
There's the deposit and the deposit is being financed.

[00:10:11] Speaker 05:
Well, it says she's going to pay a deposit.

[00:10:13] Speaker 02:
Again, it's an interpretation.

[00:10:14] Speaker 05:
You said she still has to pay it even if there's no financing.

[00:10:18] Speaker 02:
Yes, Your Honor.

[00:10:20] Speaker 02:
We do believe that that's what the contract says.

[00:10:22] Speaker 05:
Yeah.

[00:10:22] Speaker 05:
So there's got to be something authorizing the payment.

[00:10:26] Speaker 05:
I mean... The contract in itself would have authorized the payment.

[00:10:33] Speaker 05:
Do you dispute that she didn't authorize it?

[00:10:36] Speaker 02:
Do we dispute that she didn't authorize it?

[00:10:37] Speaker 02:
No, we think that she did authorize it.

[00:10:40] Speaker 02:
Yes, Your Honor, and I would like to give my co-counsel time.

[00:10:44] Speaker 06:
Just a minute.

[00:10:45] Speaker 06:
Do you have any more questions?

[00:10:49] Speaker ?:
No.

[00:10:49] Speaker 05:
Okay, thank you.

[00:10:50] Speaker 05:
Okay, I want to ask you, who authorized the payment?

[00:10:55] Speaker 04:
Wasn't Greensky, Your Honor.

[00:10:57] Speaker 05:
Somebody told you to release the money.

[00:11:00] Speaker 04:
That's right.

[00:11:01] Speaker 04:
And I don't... Greensky does not have that visibility, Your Honor.

[00:11:04] Speaker 04:
Greensky is the servicer of the loan.

[00:11:05] Speaker 04:
It didn't fund the loan.

[00:11:06] Speaker 04:
It's not a party to the loan agreement.

[00:11:09] Speaker 04:
All Greensky sees is a request to use the funds.

[00:11:12] Speaker 04:
Greensky doesn't fund the loan.

[00:11:14] Speaker 03:
It doesn't... So that's at best... Greensky is owned by the lender though, correct?

[00:11:20] Speaker 03:
No, Green Sky is not owned by a lender.

[00:11:22] Speaker 04:
No, that's one of the... Totally independent of the lender.

[00:11:25] Speaker 04:
Absolutely, Your Honor.

[00:11:26] Speaker 04:
That's one thing that the district court had made several fundamental misunderstandings of what is going on here, but that was the most critical one because the... I'm sorry, Your Honor, go ahead.

[00:11:35] Speaker 03:
The loan agreement does say there is no loan without the authorizing transaction, right?

[00:11:44] Speaker 04:
That's correct.

[00:11:45] Speaker 04:
It says that the use of the loan will create the contract, all terms of the agreement.

[00:11:50] Speaker 04:
That is acceptance.

[00:11:52] Speaker 04:
And that's what happened here.

[00:11:53] Speaker 03:
But isn't it also true that the plaintiff didn't need to use the loan if she were to get Windows, she could pay it Anderson independent.

[00:12:06] Speaker 03:
She doesn't have to borrow money to do that, even though she may have a loan agreement.

[00:12:12] Speaker 03:
Isn't that correct?

[00:12:13] Speaker 03:
That's absolutely correct.

[00:12:15] Speaker 03:
Okay, then why then should they allow Anderson to come in and take its share of the lending transaction upfront before there's been a window installed, before anything happened, and to charge this plaintiff $8,000 plus dollars?

[00:12:39] Speaker 04:
That's not a Green Sky.

[00:12:40] Speaker 04:
I don't know what Green Sky says that Green Sky is is the servicer of the loan and it operates the Green Sky program.

[00:12:47] Speaker 04:
It does not run the lender.

[00:12:49] Speaker 04:
It doesn't.

[00:12:50] Speaker 04:
It has no control over the lender.

[00:12:52] Speaker 04:
It's that's simply they are a servicer of loans through which

[00:12:57] Speaker 04:
this network of merchants, which Anderson would be, and consumers and banks.

[00:13:02] Speaker 03:
This transaction on the $8,000 that went to Anderson had to go through your client as a servicer, correct?

[00:13:10] Speaker 04:
Greensky serviced the loan once it was drawn down upon.

[00:13:13] Speaker 04:
That's correct, Your Honor.

[00:13:15] Speaker 04:
That's correct.

[00:13:15] Speaker 04:
But other than that, as I said, Greensky has no visibility into that.

[00:13:20] Speaker 04:
And all Greensky knows, and that's why the loan agreement says what it says, once the

[00:13:25] Speaker 04:
loan is drawn down upon, and it's also why it says by the borrower or authorized user, then there's a contract which includes the arbitration agreement.

[00:13:36] Speaker 04:
And so in this case, Green Sky sees that there's been a use.

[00:13:40] Speaker 04:
Now, whether that use is authorized, that's what's been delegated to the arbitrator.

[00:13:43] Speaker 04:
All the district court had to do here, and the district court did this, was two things, and they're undisputed.

[00:13:50] Speaker 04:
One was, well, is there a contract?

[00:13:52] Speaker 04:
What does it say?

[00:13:53] Speaker 04:
We know that.

[00:13:54] Speaker 04:
for sure, right?

[00:13:55] Speaker 04:
We know there was a contract that says, here's what it forms.

[00:13:59] Speaker 04:
Here's what forms a contract.

[00:14:00] Speaker 04:
And number two is the contract was, quote, used.

[00:14:04] Speaker 04:
There was use.

[00:14:06] Speaker 04:
So right there, that's where the district court should have stopped by going further and saying, well, Parisi disputes whether that was authorized.

[00:14:13] Speaker 04:
OK, that may be a fair fact question for the arbitrator.

[00:14:17] Speaker 04:
There's the delegation provision that's never been disputed here that it applies.

[00:14:21] Speaker 04:
That's exactly... Who did she delegate authority to?

[00:14:24] Speaker 04:
I beg your pardon, your honor.

[00:14:25] Speaker 04:
Who did Parisi delegate authority to?

[00:14:28] Speaker 04:
The party's delegated, not Parisi, your honor.

[00:14:30] Speaker 04:
The party's delegated to the arbitrator.

[00:14:33] Speaker 04:
No, no.

[00:14:34] Speaker 05:
On the drawdown of the money, you said she accepted because somebody took the money out of the shopping pass, but you don't know who.

[00:14:42] Speaker 04:
No, Green Sky has no visibility into that.

[00:14:44] Speaker 05:
Right.

[00:14:45] Speaker 05:
So how do you even know if she did it?

[00:14:48] Speaker 05:
I mean, if I did it, you're not going to, if I was a random third party who went in and

[00:14:54] Speaker 05:
authorized the drawdown, you wouldn't say that she had to arbitrate whether I was authorized, would you?

[00:15:03] Speaker 04:
I would say the question, Your Honor, is who is authorized under the many cases that we've cited.

[00:15:08] Speaker 05:
You have no deal, though, until somebody draws down the money.

[00:15:14] Speaker 05:
That's correct.

[00:15:15] Speaker 05:
Because as it starts out, she makes an offer to you, right?

[00:15:19] Speaker 05:
I want a loan from you for 0%.

[00:15:22] Speaker 04:
You rejected it.

[00:15:24] Speaker 04:
That's not correct, Your Honor.

[00:15:26] Speaker 04:
That's the district court's error.

[00:15:28] Speaker 04:
There was no offer to Greensky.

[00:15:29] Speaker 04:
Greensky is not a part of the loan agreement.

[00:15:31] Speaker 04:
It could not make an offer.

[00:15:32] Speaker 05:
It goes to you.

[00:15:33] Speaker 04:
It does not, Your Honor.

[00:15:35] Speaker 04:
I'm sorry.

[00:15:35] Speaker 05:
Did your client make an effort in this case to keep the bank out and say that your client was the proper party?

[00:15:42] Speaker 04:
I was not in the trial court.

[00:15:44] Speaker 04:
The fact is, the bank makes the loan.

[00:15:47] Speaker 04:
Do you know?

[00:15:48] Speaker 04:
Your Honor, the bank makes the loan.

[00:15:50] Speaker 04:
Do you know?

[00:15:50] Speaker 04:
Did the client make that representation?

[00:15:53] Speaker 04:
I know that they misnamed BMO Harris as the party because BMO Harris was not the one that was going to be subject to the arbitration.

[00:16:01] Speaker 04:
The arbitration agreement is what we're looking at here, not the loan agreement.

[00:16:05] Speaker 04:
Green Sky is not a party.

[00:16:06] Speaker 05:
They filed a lawsuit in federal court.

[00:16:10] Speaker 05:
I mean, BMO Harris is at some point going to be in that suit, aren't they?

[00:16:15] Speaker 04:
I can be, I suppose.

[00:16:17] Speaker 04:
Most of the time, lenders can be sued by consumers because they are the lender.

[00:16:23] Speaker 04:
I don't know what went through the strategic machinations of the plaintiff's counsel and how they don't, but I do know that they don't understand the Green Sky program and neither did the district court.

[00:16:33] Speaker 04:
All the district court had to do was to say, we have an agreement because that's what it says in the loan contract and we know

[00:16:41] Speaker 04:
that the loan was drawn down upon.

[00:16:43] Speaker 04:
From where it was authorized, it's like a credit card, which everybody has agreed with.

[00:16:47] Speaker 04:
We all get credit cards.

[00:16:49] Speaker 04:
If the credit card is used, we're stuck with it.

[00:16:51] Speaker 04:
If we say it wasn't authorized, well, guess what?

[00:16:53] Speaker 04:
We're going to go to arbitration on whether it was authorized.

[00:16:56] Speaker 04:
That's exactly what happened here.

[00:16:57] Speaker 04:
The shopping pass is like a credit card.

[00:16:59] Speaker 04:
It was used.

[00:17:00] Speaker 04:
There's a dispute on the merits as to whether it was authorized.

[00:17:04] Speaker 04:
That's what's been delegated to the arbitrator.

[00:17:06] Speaker 04:
I'm sorry I've gone over my time, Your Honors.

[00:17:08] Speaker 06:
Any more questions?

[00:17:20] Speaker 04:
Thank you, Your Honors.

[00:17:21] Speaker 04:
Appreciate the time.

[00:17:29] Speaker 00:
Good morning, and may it please the court.

[00:17:31] Speaker 00:
Hannah Kieschnick on behalf of APHLE, retired Lieutenant Colonel Susan Preci.

[00:17:36] Speaker 00:
I appreciate there are a lot of issues, but perhaps just to take a step back.

[00:17:41] Speaker 00:
Here's how this case started.

[00:17:42] Speaker 00:
An RBA sales rep

[00:17:44] Speaker 00:
convince Parisi to sign on a blank iPad screen so that she could apply for a loan with 0% interest.

[00:17:52] Speaker 00:
Even though that's all she did, defendants then said that Parisi was locked into paying RBA to install Windows using a loan with 25% interest, which would have more than doubled her costs.

[00:18:07] Speaker 00:
This is a case involving straightforward, these are issues involving straightforward questions of contract formation and defendant's arguments violate these basic rules.

[00:18:18] Speaker 00:
Because Parisi didn't have notice and didn't assent, she didn't form either of the two agreements that defendants rely on to compel arbitration.

[00:18:30] Speaker 00:
I'd like to start perhaps with the who decides question.

[00:18:34] Speaker 00:
This is quite straightforward.

[00:18:36] Speaker 00:
As this court held in the Fedor case, the issue of whether an arbitration agreement was formed between the parties must always be decided by a court.

[00:18:46] Speaker 00:
And Ms.

[00:18:48] Speaker 00:
Aprici's arguments go directly to the very existence of arbitration clauses and arbitration agreements here.

[00:18:56] Speaker 00:
So the district court was correct to decide these formation questions.

[00:19:01] Speaker 00:
On the point of formation, I'll start with RBA, or renewal by Anderson, and the windows contract.

[00:19:07] Speaker 00:
There are a number of reasons why that contract was not formed.

[00:19:12] Speaker 00:
Not the least of which is that Parisi lacked the three basic requirements of reasonable notice.

[00:19:19] Speaker 00:
The first being that an offer to contract was being made at all.

[00:19:24] Speaker 00:
Second, how to accept that offer, and third, what the terms of that offer were.

[00:19:30] Speaker 00:
On that first point, Parisi didn't have notice that she was being presented with an offer to contract.

[00:19:38] Speaker 00:
I point the court to paragraph 13 of her declaration.

[00:19:42] Speaker 00:
She says, quote, I was never informed that my signature could be used on anything other than a credit check and a loan application.

[00:19:51] Speaker 00:
In other words, a reasonable consumer wouldn't have known that they were being presented with a contract to buy windows then and there on the spot.

[00:20:01] Speaker 00:
Instead, submitting a loan application would make someone think,

[00:20:05] Speaker 00:
This was the very start of a process that could eventually lead to them hearing back on the loan application, perhaps taking out the loan, and then deciding to buy Windows.

[00:20:17] Speaker 06:
Well, she did hear back on the loan application during that conversation with Anderson's rep, right?

[00:20:25] Speaker 00:
That's correct, but that happened approximately 30 minutes after RBA contends that the agreement was formed.

[00:20:33] Speaker 00:
And so hearing back over the phone that she had been approved for the two-year loan program,

[00:20:40] Speaker 00:
wasn't sufficient to provide her with notice that she was being offered a contract to buy windows at the time RBA says she actually agreed to buy the windows.

[00:20:54] Speaker 00:
Which brings me to the second problem with reasonable notice here, which is that you have to have notice

[00:21:00] Speaker 00:
that the action you're undertaking is going to be construed as assenting to that particular contract.

[00:21:08] Speaker 00:
And here, there's a mismatch.

[00:21:10] Speaker 00:
Again, for that problem of the RBA sales rep's representation, this is just for a credit check and a loan application.

[00:21:17] Speaker 00:
Here, her signature can't bind her to the Windows contract because she provided it for another purpose.

[00:21:28] Speaker 06:
on the on the final point of reasonable notice when she provided it for another purpose but the contract itself indicates otherwise yes she has an obligation to read the contract

[00:21:42] Speaker 06:
Read what she's signing.

[00:21:45] Speaker 00:
There are two responses to that, Your Honor.

[00:21:47] Speaker 00:
The first is that when she went to sign the iPad, it was blank other than a signature line or a checkbox to populate her signature.

[00:21:59] Speaker 00:
So she had no visible notice.

[00:22:01] Speaker 05:
But didn't she have some responsibility to say, I have no idea what I'm signing.

[00:22:05] Speaker 05:
You need to show me this before I sign it.

[00:22:09] Speaker 00:
Yes, which brings me to the second point, which is whether we think of this as a duty to read issue or a duty to inquire, that kind of duty doesn't apply if there isn't first a predicate notice that there's a contract or terms being offered at all.

[00:22:26] Speaker 05:
They're asking her to sign a bunch of times.

[00:22:29] Speaker 05:
I mean, isn't that a notice that you might be getting yourself into an agreement?

[00:22:35] Speaker 00:
Yes, and what she had notice of was what the RBA sales rep told her.

[00:22:41] Speaker 00:
Which is in dispute.

[00:22:44] Speaker 00:
Which actually is not in dispute.

[00:22:46] Speaker 00:
The RBA has not disputed Parisi's testimony in her declaration.

[00:22:52] Speaker 00:
about anything to do with the contracting process.

[00:22:56] Speaker 00:
It hasn't disputed the two key facts here.

[00:22:59] Speaker 00:
The first being, here's what the RBA sales rep told me.

[00:23:03] Speaker 00:
This is for a credit check and a loan application.

[00:23:05] Speaker 00:
Not, this is an agreement to undertake legal obligations in this moment and buy windows here now.

[00:23:14] Speaker 00:
And the second is that when she actually went to sign that iPad screen,

[00:23:20] Speaker 00:
It was blank.

[00:23:21] Speaker 00:
She couldn't see anything at all except for the signature line.

[00:23:25] Speaker 00:
So she did sign, but she wasn't on notice about the purpose of the signature, other than what the RBA sales rep had told her.

[00:23:34] Speaker 00:
She didn't have any other way to verify it.

[00:23:36] Speaker 03:
I think another way to think about this- Mr. Kelly was neither deposed nor filed a declaration, did he?

[00:23:44] Speaker 01:
That's correct.

[00:23:45] Speaker 03:
All right.

[00:23:47] Speaker 03:
Evidence we have of this session is from the plaintiff.

[00:23:52] Speaker 01:
That's correct.

[00:23:53] Speaker 03:
So it has been disputed in any way in this record by the defendants.

[00:24:02] Speaker 00:
It has not been disputed by RBA.

[00:24:05] Speaker 00:
They have not, RBA has not disputed that she couldn't see the terms, the iPad screen other than the signature line.

[00:24:13] Speaker 00:
Here's what the RBA sales rep told her.

[00:24:16] Speaker 03:
Do you?

[00:24:18] Speaker 06:
There wasn't anything in this contract, as there sometimes is, where something she signed had a box that said, I have read and I understood the terms of this contract.

[00:24:31] Speaker 00:
There is something akin to that.

[00:24:35] Speaker 00:
But again, she wouldn't have known to even ferret out that term for the context.

[00:24:42] Speaker 06:
Is she saying she didn't even see that?

[00:24:45] Speaker 00:
That's correct.

[00:24:46] Speaker 06:
That the screen was blank, didn't even have that term on it.

[00:24:48] Speaker 00:
That's correct.

[00:24:50] Speaker 00:
So at paragraph 17 of her declaration, she says, here are the only two things I could see on this screen.

[00:24:57] Speaker 00:
a signature line or a check box.

[00:25:01] Speaker 00:
And when she checked that box, her signature popped up.

[00:25:06] Speaker 00:
That's it.

[00:25:07] Speaker 00:
There were no terms visible otherwise.

[00:25:10] Speaker 00:
And that obviously fails.

[00:25:12] Speaker 03:
What this court said... I know there may be hard copy, but can this be recreated digitally so that on a screen

[00:25:24] Speaker 03:
The signature page is by itself blank with no other text, whereas on the hard copy it would be all bunched together.

[00:25:32] Speaker 03:
Is that what happened?

[00:25:35] Speaker 03:
I mean, there's no text at all.

[00:25:37] Speaker 00:
There's no text at all.

[00:25:39] Speaker 00:
It has been undisputed.

[00:25:40] Speaker 00:
There's no text at all, but for that line.

[00:25:44] Speaker 03:
On any of the places where she signed her name.

[00:25:48] Speaker 00:
That's correct.

[00:25:49] Speaker 03:
And also on any screen where she checked a box.

[00:25:56] Speaker 00:
That's correct.

[00:25:57] Speaker 00:
Nothing at all.

[00:25:58] Speaker 00:
And that obviously fails what this court described.

[00:26:01] Speaker 03:
There was a declaration by somebody.

[00:26:03] Speaker 03:
I can't think of the name of the person.

[00:26:05] Speaker 00:
Yes.

[00:26:05] Speaker 00:
I think it was Erickson.

[00:26:07] Speaker 00:
I could be wrong on that name, and I apologize if that's the case.

[00:26:11] Speaker 00:
Or Caliban, which would be for Green Sky.

[00:26:16] Speaker 03:
The declaration... Did anybody explain or address this

[00:26:23] Speaker 03:
declaration by the plaintiff that the only thing on the screen were signatures and check boxes.

[00:26:35] Speaker 00:
That has gone entirely unrefuted.

[00:26:38] Speaker 03:
Can you tell from her declaration that

[00:26:47] Speaker 03:
As Kelly scrolled through this, there was text.

[00:26:51] Speaker 03:
It just wasn't on the page where she signed.

[00:26:54] Speaker 00:
No, Your Honor.

[00:26:54] Speaker 00:
This wasn't like what you could imagine, which is scrolling through a number of pages and seeing the text kind of fly by and being like, whoa, slow down.

[00:27:05] Speaker 00:
That is not what Parisi has testified.

[00:27:08] Speaker 00:
What she has said is that the RBA sales rep

[00:27:11] Speaker 00:
swiped through screens and all that she could see was the signature line.

[00:27:17] Speaker 00:
So it went blank screen with line to blank screen with either checkbox or line.

[00:27:23] Speaker 00:
And just to give the reference points, excuse me, that would appear among other paragraphs, paragraph 17 of her declaration.

[00:27:34] Speaker 00:
That's a problem because at the bare minimum, there has to be reasonable notice of the terms of the contract.

[00:27:43] Speaker 00:
They have to be at least reasonably conspicuous or clearly presented.

[00:27:49] Speaker 00:
And a blank screen, it falls far short of that requirement.

[00:27:54] Speaker 00:
And again, just to refer to, well, wouldn't she have known perhaps that she was agreeing to something?

[00:28:01] Speaker 00:
It's the combination of these two problems.

[00:28:07] Speaker 00:
This is what the RBA rep said, and then she couldn't verify that in any other way because there weren't any visible terms on the screen.

[00:28:17] Speaker 00:
And so she had no reason to inquire.

[00:28:20] Speaker 00:
And that duty to inquire or read only applies once there's that predicate notice.

[00:28:27] Speaker 03:
Which paragraph of the declaration states what she thought she was doing?

[00:28:31] Speaker 00:
Sure, so a few paragraphs.

[00:28:35] Speaker 00:
I would point the court to paragraph 13, where she says, I was never informed that my signature could be used on anything other than a credit check and a loan application.

[00:28:46] Speaker 00:
She states throughout her declaration, for example,

[00:28:52] Speaker 00:
After she signed that first time, then Mr. Kelly swiped the iPad in an upward motion.

[00:28:59] Speaker 00:
Again, no terms were visible.

[00:29:02] Speaker 00:
And then he stated he needed some additional signatures to secure the zero interest for two years and no payments for two years loan program.

[00:29:13] Speaker 00:
In other words, this was just to apply for a loan.

[00:29:16] Speaker 00:
It wasn't to undertake legal applications and buy the windows then and there.

[00:29:22] Speaker 00:
If the court has no further questions, I apologize.

[00:29:25] Speaker 06:
I just have a clarification.

[00:29:26] Speaker 06:
And then, so after she signed, and then there's this telephone call where the Anderson representative holds out the phone and says, oh, your financing application has been accepted, right?

[00:29:40] Speaker 00:
That's correct.

[00:29:41] Speaker 06:
That's her affidavit that says something to that.

[00:29:44] Speaker 00:
Yes.

[00:29:44] Speaker 00:
She couldn't see any terms related to the loan agreement.

[00:29:49] Speaker 06:
Did anyone ask the question?

[00:29:52] Speaker 06:
Did she ask or was she told this is the financing agreement you need, which is the 0% 24 months?

[00:30:01] Speaker 06:
There just wasn't any further conversation?

[00:30:04] Speaker 00:
Not that we are aware of and not that Ms.

[00:30:09] Speaker 00:
Parisi has testified to.

[00:30:11] Speaker 06:
The next step was... No one clarified with her at that point that she had not been approved for the

[00:30:18] Speaker 06:
promotional financing, which she had said she needed.

[00:30:22] Speaker 00:
That's correct.

[00:30:23] Speaker 00:
What they did do appears at paragraph 26 of her application.

[00:30:29] Speaker 00:
Greensky's telephone representative said, congratulations, you've been approved for the two-year loan program with Greensky.

[00:30:36] Speaker 00:
A reasonable consumer under those circumstances would think

[00:30:40] Speaker 00:
the loan I think I applied for was approved.

[00:30:43] Speaker 00:
How great.

[00:30:44] Speaker 00:
Presumably this will then start the process of looking at those loan terms, deciding to take them, entering into that contract, and only then going to buy the windows.

[00:30:59] Speaker 05:
So let me ask you a question that I didn't necessarily get an answer to on the last one.

[00:31:04] Speaker 05:
Is there any text in this

[00:31:06] Speaker 05:
Anderson agreement that says that Anderson is authorized to draw down on the shopping pass and essentially obligate her.

[00:31:15] Speaker 00:
Green Sky hasn't pointed to anything in the windows contract that authorizes

[00:31:23] Speaker 05:
I'm asking you, do you believe there is any text?

[00:31:28] Speaker 00:
I have not been able to find any reference to a shopping pass or you are hereby authorizing us to take out or to agree to a loan on your behalf.

[00:31:39] Speaker 00:
And that is what would be required for a contract for the loan agreement contract to be formed.

[00:31:47] Speaker 00:
The loan agreement is clear.

[00:31:49] Speaker 00:
on how to accept either the borrower uses the shopping pass or to quote the loan agreement at page 68 of the record, an authorized user uses the shopping pass.

[00:32:03] Speaker 00:
And because the question of whether an agreement was accepted in the manner that it prescribes goes directly to contract formation, this is a question for the court and the district court was correct to conclude there was no evidence of authorization.

[00:32:18] Speaker 00:
So the loan agreement was not accepted, not formed, and can't support a motion to compel arbitration.

[00:32:25] Speaker 00:
I see my time is up, but otherwise we would rest on our papers and ask this court to affirm.

[00:32:30] Speaker 03:
Well, help me.

[00:32:31] Speaker 03:
I thought in one of the two agreements that there was a provision that authorized Anderson to draw this down.

[00:32:44] Speaker 03:
And you're telling me no.

[00:32:47] Speaker 03:
Is that correct?

[00:32:47] Speaker 01:
That's correct.

[00:32:48] Speaker 03:
I mean, I can look at the hard copy of both agreements and there is nothing, nothing that says that Anderson can draw on this loan, authorize it.

[00:33:07] Speaker 03:
Not that I can see explicitly, but perhaps... So if they install one window,

[00:33:17] Speaker 03:
How is the loan activated then?

[00:33:22] Speaker 03:
Unless Anderson says to the servicer, pay me.

[00:33:32] Speaker 00:
My understanding of the contracts here, and forgive me if I'm misunderstanding your honor's question, I think the loan agreement would have had to be formed before

[00:33:44] Speaker 00:
There could be any deposit that would then trigger RBA to actually start installing Windows.

[00:33:52] Speaker 00:
And here, neither of the contracts was formed, both because there wasn't, Parisi hadn't authorized anyone to use the shopping pass for her.

[00:34:03] Speaker 00:
There's nothing in, and I'll put your honor to

[00:34:08] Speaker 00:
the, um, I think the best they could do for authorization.

[00:34:11] Speaker 00:
Um, but there's, there's nothing that authorized RBA to accept a loan on her behalf and, um, RBA.

[00:34:19] Speaker 03:
What, what, uh, have the defendant said, what is it in either of these two contracts?

[00:34:26] Speaker 03:
Uh, that would cause, uh, Greensky to allow this $8,000 plus charge.

[00:34:37] Speaker 00:
No.

[00:34:39] Speaker 00:
And in fact, I think we heard the concession in the first 15 minutes today that Green Sky has no visibility into authorization.

[00:34:51] Speaker 00:
It doesn't know who authorized the drawdown or use of the shopping pass.

[00:34:57] Speaker 00:
And that's a problem because there were only two ways to accept the loan agreement.

[00:35:03] Speaker 00:
Either the borrower used the shopping pass and Parisi has been clear she did not.

[00:35:11] Speaker 00:
And she has also been clear that she didn't authorize.

[00:35:14] Speaker 00:
The only evidence that Green Sky, excuse me, she didn't authorize anyone to use the shopping pass for her.

[00:35:20] Speaker 00:
That's at paragraph 46 of her declaration.

[00:35:22] Speaker 00:
The only evidence that Green Sky has offered is the mere fact of use.

[00:35:31] Speaker 00:
of the shopping pass, but that's not sufficient.

[00:35:33] Speaker 03:
That's your reference to that voucher or whatever it was, a separate document indicating this transaction, correct?

[00:35:41] Speaker 00:
That's correct, yes.

[00:35:43] Speaker 00:
And Your Honor, you asked, there's absolutely no reference to the shopping pass and the windows contract, nor is there a reference to I'm authorizing you to take out loans on my behalf or accept a loan on my behalf, and particularly not

[00:36:01] Speaker 00:
a loan with such markedly different terms, from 0% to 25% from payments in 24 months to 18 months earlier.

[00:36:11] Speaker 00:
I appreciate that my time is up.

[00:36:13] Speaker 00:
Thank you very much.

[00:36:19] Speaker 06:
I'm going to let you guys have, if you want, let's give you two minutes of rebuttal because we've gone over substantial

[00:36:36] Speaker 02:
Yes, Your Honor.

[00:36:36] Speaker 02:
Thank you.

[00:36:38] Speaker 02:
The type of arguments that have been raised by Parisi are fraud in the execution and lack of notice.

[00:36:44] Speaker 02:
Those were never raised before.

[00:36:46] Speaker 02:
We never had an opportunity to respond to those types of actions.

[00:36:49] Speaker 03:
To what we were just discussing.

[00:36:52] Speaker 03:
Where in either contract does it allow Anderson to effectively get money on this loan?

[00:37:04] Speaker 02:
I was looking for it and I couldn't find it, your honor.

[00:37:07] Speaker 03:
So, I mean, it's- Okay.

[00:37:09] Speaker 03:
So she didn't authorize it.

[00:37:14] Speaker 03:
Anderson didn't have the power to, nobody else had the power.

[00:37:18] Speaker 03:
How was it authorized?

[00:37:20] Speaker 02:
It's very possible it's in the contract and I just couldn't locate it.

[00:37:24] Speaker 02:
Your Honor, we believe that the arguments that have been raised are illusory type arguments and that this court's decision in 2016, Henry Cox, which considered the same type of illusory type arguments as to whether or not the contract was valid or not, the court had to decide, like here, whether those arguments challenged the entire agreement or the arbitration clause.

[00:37:48] Speaker 02:
The court held, we hold this is a challenge to the entire agreement because arbitration clause is unenforceable only if the entire agreement is unenforceable.

[00:37:58] Speaker 02:
So even though the court recognized that the consumer might be right, they said it was for the arbitrator to decide.

[00:38:05] Speaker 02:
And that's the key issue.

[00:38:07] Speaker 02:
What is it for?

[00:38:08] Speaker 02:
Is it for the arbitrator to decide or the court to decide these disputes among these parties?

[00:38:12] Speaker 02:
And 60 years of Supreme Court precedent says that this decision goes to the arbitrator.

[00:38:17] Speaker 02:
There was never any challenge to the delegation clause, never any challenge to the arbitration agreement.

[00:38:24] Speaker 02:
The only challenge they now raise is this formation issue under fraud in the execution and lack of notice, which was never raised below.

[00:38:32] Speaker 05:
Well, that's part of it.

[00:38:34] Speaker 02:
Yes.

[00:38:34] Speaker 05:
Maybe against your client.

[00:38:36] Speaker 05:
I mean, the argument against Greensky is a little bit different.

[00:38:39] Speaker 02:
Yes.

[00:38:39] Speaker 02:
Your Honor, I'm out of time.

[00:38:41] Speaker 05:
OK.

[00:38:42] Speaker 05:
Never mind she answered it I Think just to be clear your answer is you don't know where in this contract.

[00:38:50] Speaker 05:
There's at least the anderson contract There's any text that gives your client the authorization to draw down on that shopping pass without Her doing something first.

[00:39:01] Speaker 02:
I cannot answer that here today, okay?

[00:39:07] Speaker 06:
Appreciate your arguments the case will be submitted and counselor excused