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                                      Appellate Court                           Date: 2017.01.23
                                                                                15:50:56 -06'00'




                 Keefe v. Allied Home Mortgage Corp., 2016 IL App (5th) 150360



Appellate Court           ROSEMARY KEEFE, on Behalf of Herself and All Others Similarly
Caption                   Situated, Plaintiff-Appellant, v. ALLIED HOME MORTGAGE
                          CORPORATION and ALLIED HOME MORTGAGE CAPITAL
                          CORPORATION, Defendants-Appellees.



District & No.            Fifth District
                          Docket No. 5-15-0360



Filed                     November 28, 2016



Decision Under            Appeal from the Circuit Court of St. Clair County, No. 04-L-502; the
Review                    Hon. Vincent L. Lopinot, Judge, presiding.



Judgment                  Reversed and remanded.



Counsel on                Jeffrey J. Lowe and James J. Rosemergy, of Carey, Danis & Lowe, of
Appeal                    St. Louis, Missouri, for appellant.

                          Michael A. Brockland, of Cosgrove Law Group, LLC, of St. Louis,
                          Missouri, for appellees.



Panel                     JUSTICE CATES delivered the judgment of the court, with opinion.
                          Justice Moore concurred in the judgment and opinion.
                          Presiding Justice Schwarm dissented, with opinion.
                                             OPINION

¶1       The plaintiff, Rosemary Keefe, appeals from an order granting a motion to compel
     arbitration filed by defendants, Allied Home Mortgage Corporation and Allied Home
     Mortgage Capital Corporation. The plaintiff contends that the circuit court erred in finding
     that the parties’ arbitration agreement was enforceable where the designated arbitrator was no
     longer able to conduct consumer arbitrations and where there was no showing that the
     designated procedures governing the arbitration agreement authorized the appointment of a
     substitute arbitrator. For reasons that follow, we reverse and remand.

¶2                                         BACKGROUND
¶3       In 1999, the plaintiff, Rosemary Keefe, contacted the defendants for assistance with the
     refinancing of a loan on her property in Berwyn, Illinois. The defendants were in the business
     of brokering mortgages and providing mortgage related services in several states in the
     United States, including Illinois. On May 18, 1999, the plaintiff signed several refinancing
     documents, which included an arbitration rider. Two months later, the parties closed on the
     loan.
¶4       On September 2, 2004, the plaintiff filed a class action complaint against the defendants.
     The plaintiff alleged that the defendants engaged third parties to provide certain loan-related
     services, such as credit reports and appraisals, and paid the fees charged for those services.
     The plaintiff further alleged after payment of the third-party fees, the defendants then
     charged the plaintiff, and similarly situated borrowers, sums in excess of those fees
     (“upcharges”), and then concealed the “upcharges” by failing to disclose the actual fees that
     the defendants had paid to the third parties. The plaintiff’s complaint included counts
     asserting breach of fiduciary duty, breach of the covenant of good faith and fair dealing,
     unjust enrichment, and consumer fraud.
¶5       On December 15, 2004, the defendants filed a motion to compel arbitration and stay
     judicial proceedings based upon the arbitration rider. The plaintiff filed a memorandum in
     opposition. The plaintiff asserted that the arbitration rider was unenforceable because it was
     cost-prohibitive, unsupported by consideration, against public policy, and procedurally and
     substantively unconscionable. Over the next several months, the parties submitted additional
     oral and written arguments to the trial court. On July 18, 2007, the trial court denied the
     defendants’ motion to compel arbitration. The court found that the arbitration rider was
     illusory and procedurally and substantively unconscionable. The defendants appealed. In an
     opinion issued on July 10, 2009, this court found that the arbitration rider was supported by
     adequate consideration but that the provision prohibiting class arbitrations was substantively
     unconscionable. Keefe v. Allied Home Mortgage Corp., 393 Ill. App. 3d 226, 912 N.E.2d 310
     (2009). This court also determined that the provision prohibiting class arbitrations was
     severable from the remainder of the arbitration rider, leaving the agreement to arbitrate in
     place. Keefe, 393 Ill. App. 3d at 236, 912 N.E.2d at 320. The case was remanded to the
     circuit court with directions to sever the provision prohibiting class actions and to enforce the
     remainder of the arbitration clause.
¶6       Within days after the opinion was issued, the parties’ chosen arbitrator, the National
     Arbitration Forum (NAF), became embroiled in a controversy. On July 14, 2009, the
     Minnesota Attorney General filed a complaint against the NAF, and alleged, among other

                                                 -2-
       things, that the NAF had systematically used arbitrators with pro-business biases, and thereby
       engaged in consumer fraud and deceptive trade practices. On July 28, 2009, the NAF entered
       into a consent decree with the Minnesota Attorney General and agreed to stop accepting all
       consumer cases for arbitration. See State v. National Arbitration Forum, Inc., No.
       27-CV-09-18550, 2009 WL 5424036 (Minn. 4th Dist. Ct. July 17, 2009) (consent decree); In
       re National Arbitration Forum Trade Practices Litigation, 704 F. Supp. 2d 832, 835 (D.
       Minn. 2010).
¶7         On September 23, 2009, the plaintiff filed a motion in the circuit court and argued that
       the arbitration rider was unenforceable because the NAF was no longer able to arbitrate this
       dispute. On October 27, 2009, the defendants filed a memorandum in opposition. The
       defendants argued that the unavailability of the NAF did not render the arbitration rider
       unenforceable because the NAF was not designated as the exclusive arbitral forum and
       because the circuit court was authorized to appoint a substitute arbitrator under section 5 of
       the Federal Arbitration Act (FAA) (9 U.S.C. § 5 (2006)). On October 29, 2009, the plaintiff
       filed a reply and argued that the arbitration rider effectively designated the NAF as the
       exclusive arbitral forum and that no other provision in the rider authorized the selection or
       use of a substitute arbitrator. On January 7, 2011, the defendants filed a second motion to
       compel arbitration. On October 14, 2014, the circuit court granted the defendants’ motion to
       compel arbitration. This appeal followed.

¶8                                               ANALYSIS
¶9         Agreements to arbitrate are favored as a matter of policy in Illinois and federally.
       QuickClick Loans, LLC v. Russell, 407 Ill. App. 3d 46, 52, 943 N.E.2d 166, 172 (2011).
       Whenever possible, Illinois courts will construe arbitration agreements to uphold their
       validity. Salsitz v. Kreiss, 198 Ill. 2d 1, 13, 761 N.E.2d 724, 731 (2001). This pro-arbitration
       policy, however, is not intended to render arbitration agreements more enforceable than other
       contracts, and it does not operate in disregard of the intent of the contracting parties. Carter v.
       SSC Odin Operating Co., 2012 IL 113204, ¶ 55, 976 N.E.2d 344; Ervin v. Nokia, Inc., 349 Ill.
       App. 3d 508, 510, 812 N.E.2d 534, 537 (2004). Rather, arbitration agreements are to be
       enforced according to their terms, including those specifying the arbitral forum and the rules
       under which the arbitration will be conducted. 9 U.S.C. § 4 (2006); American Express Co. v.
       Italian Colors Restaurant, 570 U.S. ___, ___, 133 S. Ct. 2304, 2309 (2013).
¶ 10       Arbitration is consensual, and arbitration agreements, as creatures of contract, are
       construed under ordinary principles of contract law. Carr v. Gateway, Inc., 241 Ill. 2d 15, 20,
       944 N.E.2d 327, 329 (2011). Under ordinary contract principles, the primary objective is to
       give effect to the intent of the parties. Thompson v. Gordon, 241 Ill. 2d 428, 441, 948 N.E.2d
       39, 47 (2011). A contract must be construed as a whole, viewing each provision in light of
       the other provisions, rather than in isolation. Thompson, 241 Ill. 2d at 441, 948 N.E.2d at 47.
       If the words in the contract are clear and unambiguous, they must be given their plain,
       ordinary and popular meaning. Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d
       141, 153, 821 N.E.2d 206, 213 (2004). If the terms of the contract are reasonably susceptible
       of more than one meaning, they are ambiguous and will be strictly construed against the
       drafter. Central Illinois Light Co., 213 Ill. 2d at 153, 821 N.E.2d at 213. An arbitration
       agreement will not be extended by construction or implication. QuickClick Loans, 407 Ill.
       App. 3d at 52, 943 N.E.2d at 172. In addition, an arbitration agreement may be invalidated

                                                    -3-
       under state law contract defenses, such as fraud, duress, and impossibility. Carter, 2012 IL
       113204, ¶ 18, 976 N.E.2d 344.
¶ 11       In this case, we are asked to determine whether the parties’ agreement to arbitrate is
       enforceable. The question of enforceability arises now because the NAF, as the designated
       arbitral forum, is no longer able to conduct arbitrations involving consumer loans. The
       NAF’s unavailability raises two fundamental, multilayered issues. The first is whether the
       designation of the NAF as the arbitral forum was integral to the parties’ agreement to
       arbitrate, and if not, whether any other provision in the arbitration rider authorizes the
       appointment of a substitute arbitrator. The second is whether the term stating that the
       arbitration rider shall be governed by the Code of Procedure of the National Arbitration
       Forum (NAF Code) in effect at the date of the agreement is integral to the agreement to
       arbitrate. If the NAF Code is integral to the agreement to arbitrate, then there are questions
       about whether the applicable version of the NAF Code is available for use and whether it is
       permissible for an arbitrator, other than the NAF or its affiliates, to conduct an arbitration
       under the NAF Code. The interpretation of this arbitration rider presents questions of law that
       are reviewed de novo. Carr, 241 Ill. 2d at 20, 944 N.E.2d at 329.

¶ 12                                         The Arbitration Rider
¶ 13        The arbitration rider at issue states in pertinent part:
               “All 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, except as provided under ‘Exclusions from Arbitration’ below. This
               arbitration agreement is made pursuant to a transaction involving interstate
               commerce, and shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-4)
               and the Code of Procedure of the National Arbitration Forum as in effect at the date
               of this agreement. Copies of rules and forms can be obtained and any claims can be
               filed at any National Arbitration Forum office, www.arb-forum.com, or at P.O. Box
               50191, Minneapolis, MN 55405.”
¶ 14        This provision, drafted by the defendants and agreed to by both parties, plainly states that
       all claims and disputes arising from the loan “shall” be resolved by binding arbitration and
       that the arbitration agreement “shall” be governed by sections 1 through 4 of the FAA and
       the NAF Code in effect on the date of the agreement. The provision further states that copies
       of the rules and forms can be obtained and claims can be filed at any NAF office, online, or
       by mail. Thus, the arbitration rider contains three basic agreements. First, the parties agreed
       to arbitrate their disputes. Second, the parties agreed that the arbitration would be governed
       under sections 1 through 4 of the FAA and the version of the NAF Code that was in effect on
       May 18, 1999, the date that the arbitration rider was executed. The third agreement, albeit
       implicit, is that the parties intended to arbitrate their disputes before the NAF.
¶ 15        Although the arbitration rider does not expressly designate the NAF as the exclusive
       arbitral forum, when the terms of the rider are considered together, the intent of the parties is
       clear. The arbitration rider specifically mandates that the parties’ arbitration agreement
       “shall” be governed by the 1999 NAF Code. The arbitration rider also directs the parties to
       obtain copies of the rules and claim forms from any NAF office, or from its website, and to
       file the claim forms at any NAF office, online, or through its post office box. The inclusion
       of these directions supports a finding that the parties intended to arbitrate before the NAF.

                                                   -4-
       Indeed, these directions would be meaningless in the absence of the NAF’s designation as the
       arbitral forum. When the arbitration rider is considered as a whole and the term mandating
       the use of the 1999 NAF Code is read in conjunction with the provision directing the parties
       on how to obtain the rules and claim forms and where to file the claim forms, the reasonable
       and natural inference is that the parties intended that their disputes would be arbitrated
       exclusively before the NAF and governed by the 1999 NAF Code.

¶ 16                  Section 5 of the FAA and Enforceability of the Arbitration Rider
¶ 17        In this case, the NAF is no longer available to arbitrate this dispute. The parties disagree
       on the impact of the NAF’s absence. The plaintiff contends that the designation of the NAF
       is an integral part of the agreement, and that the NAF’s unavailability renders the arbitration
       rider unenforceable. The defendants contend that the NAF’s unavailability does not doom the
       arbitration rider because the circuit court can appoint a substitute arbitrator under section 5 of
       the FAA (9 U.S.C. § 5 (2006)).
¶ 18        The FAA provides a comprehensive procedure for the arbitration of disputes between the
       parties. 9 U.S.C. § 1 et seq. (2006). Generally, sections 1 through 4 of the FAA address the
       applicability of the FAA to the parties’ disputes, as well as the ability of one party to compel
       arbitration where another party has neglected or refused to comply with an arbitration
       agreement. 9 U.S.C. §§ 1-4 (2006). Section 4 permits a party to petition the court for an order
       directing that arbitration proceed in the manner provided in the arbitration agreement. 9
       U.S.C. § 4 (2006). The remaining sections, including section 5, provide procedural rules
       governing arbitration proceedings. 9 U.S.C. §§ 5-16 (2006).
¶ 19        Section 5 of the FAA provides a mechanism for appointing a substitute arbitrator, and
       states as follows:
                    “If in the agreement provision be made for a method of naming or appointing an
                arbitrator or arbitrators or an umpire, such method shall be followed; but if no method
                be provided therein, or if a method be provided and any party thereto shall fail to
                avail himself of such method, or if for any other reason there shall be a lapse in the
                naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the
                application of either party to the controversy the court shall designate and appoint an
                arbitrator or arbitrators or umpire, as the case may require, who shall act under the
                said agreement with the same force and effect as if he or they had been specifically
                named therein; and unless otherwise provided in the agreement the arbitration shall be
                by a single arbitrator.” 9 U.S.C. § 5 (2006).
¶ 20        Generally, section 5 anticipates that a designated arbitrator may become unavailable, and
       provides a procedure to appoint a substitute arbitrator. See 9 U.S.C. § 5 (2006); Carr, 241 Ill.
       2d at 30, 944 N.E.2d at 335. But the procedure provided in section 5 may not be employed to
       circumvent the parties’ designation of an exclusive arbitral forum. Accordingly, where the
       designation of an arbitral forum is integral to the agreement to arbitrate and the arbitral forum
       becomes unavailable to arbitrate the dispute, section 5 cannot be used to appoint a substitute
       arbitral forum and thereby salvage the arbitration agreement. Carr, 241 Ill. 2d at 26, 944
       N.E.2d at 333. In contrast, where the designation of an arbitral forum is “only an ancillary,
       logistical concern and the primary consideration is the intent to arbitrate disputes, allowing a
       court to appoint a substitute arbitrator fulfills the parties’ agreement to arbitrate.” Carr, 241
       Ill. 2d at 27, 944 N.E.2d at 333.

                                                   -5-
¶ 21        In determining whether the designated arbitral forum is integral to the parties’ agreement
       to arbitrate, a court looks to the essence of the agreement. Carr, 241 Ill. 2d at 22, 944 N.E.2d
       at 331; Brown v. Delfre, 2012 IL App (2d) 111086, ¶ 16, 968 N.E.2d 696. If the designation
       of the arbitral forum and the agreement to arbitrate are of equal importance, then the
       designation of the arbitral forum is integral and an alternate forum may not be substituted.
       Carr, 241 Ill. 2d at 22, 944 N.E.2d at 331; Brown, 2012 IL App (2d) 111086, ¶ 16, 968
       N.E.2d 696.
¶ 22        In this case, the arbitration rider does not use explicit language indicating that the NAF is
       the exclusive arbitral forum. But, as discussed earlier, the arbitration rider specifically
       mandates that the arbitration of disputes “shall” be conducted under the 1999 NAF Code and
       specifically directs that copies of the rules and claim forms may be obtained from the NAF
       and that claims may be filed with the NAF. After considering the arbitration rider as a whole
       and viewing each provision in light of the others, we have determined that the parties
       intended to arbitrate their disputes exclusively before the NAF, governed by the 1999 version
       of the NAF Code. The language in the arbitration rider demonstrates that the designation of
       the NAF as the arbitral forum, the designation of the 1999 NAF Code, and the agreement to
       arbitrate were of equal importance. Because the designation of the NAF as the arbitral forum
       and the agreement to arbitrate were of equal importance, the designation of the NAF was
       integral to the parties’ agreement to arbitrate. Accordingly, section 5 cannot be used to
       appoint a substitute arbitrator and thereby salvage the arbitration rider. Carr, 241 Ill. 2d at
       26, 944 N.E.2d at 333.
¶ 23        Further, setting aside for a moment the “integral versus ancillary” debate over the NAF’s
       designation, there emerges another clear and basic reason why section 5 of the FAA cannot
       be invoked in the case. The arbitration rider, by its very terms, incorporates only sections 1
       through 4 of the FAA. Section 5 of the FAA is not referenced in the rider. The arbitration
       rider was crafted by the defendants. It is reasonable to infer that by incorporating only the
       first four sections of the FAA, the defendants intended to omit the procedural sections of the
       FAA and to rely instead on the provisions in the 1999 NAF Code to govern the arbitration
       proceedings. To rewrite the arbitration rider to include section 5 of the FAA would violate
       basic principles of contract law and run contrary to the clear intent of the parties as expressed
       in the plain language of their agreement. Because section 5 of the FAA was intentionally
       omitted from the parties’ agreement, the procedural mechanism in section 5 cannot be
       employed to appoint a substitute arbitrator and thereby save the arbitration rider.

¶ 24                   The NAF Code and Enforceability of the Arbitration Rider
¶ 25       Next, we consider whether the applicable version of the NAF Code authorizes the
       appointment of a substitute arbitrator where the designated arbitrator is unavailable. In this
       case, the arbitration rider clearly and unequivocally states that any disputes “shall” be
       governed by the NAF Code in effect on the day of the agreement, May 18, 1999. The use of
       the mandatory language “shall” demonstrates the parties’ intent that the rules in the 1999
       NAF Code would govern any arbitrable disputes. The 1999 NAF Code was inextricably
       woven into the fabric of the arbitration agreement. Thus, the 1999 NAF Code was integral to
       the agreement to arbitrate, and it cannot be excised as some ancillary term.
¶ 26       Given the importance of the 1999 NAF Code, it is almost inconceivable that it was not
       produced in the circuit court. When the defendants filed their motions to compel arbitration,

                                                   -6-
       they included the 1999 arbitration rider and an affidavit attesting to the authenticity of that
       document, but they did not attach the 1999 NAF Code. In subsequent pleadings, the
       defendants attached and referenced portions of the 2005 NAF Code. A copy of the 2003 NAF
       Code was included with the plaintiff’s pleadings. Because the defendants moved to compel
       arbitration, it was initially their burden to establish the enforceability of the arbitration
       agreement. Hubbert v. Dell Corp., 359 Ill. App. 3d 976, 983, 835 N.E.2d 113, 121 (2005).
       Any doubts about enforceability that arise from the absence of the 1999 NAF Code are
       resolved against the defendants.
¶ 27        The dissent, however, contends that it was the plaintiff’s burden to present a sufficiently
       complete record to support her claims of appellate error and that any doubts about the
       enforceability of the arbitration agreement that arise from the absence of the 1999 NAF Code
       should be construed against the plaintiff. In making this argument, the dissent has entwined
       the defendants’ burden of proof in the trial court and the plaintiff’s duty in the appellate
       court. The appellant has a duty to present a sufficiently complete record of the proceedings in
       the trial court to support a claim of error. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459
       N.E.2d 958, 959 (1984). The appellant may not supplement the record on appeal with
       documents that were available but not presented to the trial court. See Ill. S. Ct. R. 329 (eff.
       Jan. 1, 2006) (a party may supplement the record on appeal only with documents that were
       actually before the trial court); Deason v. Gutzler, 251 Ill. App. 3d 630, 631, 622 N.E.2d
       1276, 1278 (1993). By all accounts, the record on appeal contains the complete record of
       proceedings before the circuit court. This is not a case where the appellant failed to include
       some portion of the circuit court record. The 1999 NAF Code was never presented to the trial
       court, and the trial court never considered it. As the party moving to compel arbitration, the
       defendants had the burden to establish the validity and enforceability of the arbitration
       agreement. The plaintiff had no duty to make the defendant’s record in the trial court, and the
       plaintiff could not include, in the record on appeal, a document that was not actually before
       the trial court. As such, any doubts arising from the absence of the 1999 NAF fall squarely
       on the defendants.
¶ 28        In this case, we do not have the text of the 1999 NAF Code. Therefore, we have no
       means to determine whether the 1999 NAF Code would permit the appointment of a
       substitute arbitrator, and if so, under what circumstances. See Carr, 241 Ill. 2d at 31-32, 944
       N.E.2d at 336.
¶ 29        The absence of the 1999 NAF Code presents additional obstacles to the enforceability of
       the arbitration rider. The parties are, without their designated rules of procedure, mandated
       by the language of the rider itself. Can a different code of procedure be implemented, and if
       so, who decides which code should be used? Where is the claim to be filed, and what is the
       filing fee? What are the powers and duties of the substitute arbitrator? What rules determine
       the availability and the scope of discovery, the format of the hearing, the introduction of
       evidence, and the costs of arbitration? Who will be obligated to pay those costs? In the
       absence of access to the 1999 NAF Code, any findings by this court regarding those
       questions are based on pure speculation. See Carr, 241 Ill. 2d at 31-32, 944 N.E.2d at 336.
¶ 30        In this case, the plain language of the arbitration rider reveals that the parties never
       intended that this court, or the circuit court, would choose the rules of procedure by which
       this arbitration would proceed. The parties agreed that the arbitration of any disputes would
       be governed by a specific set of procedural rules, the 1999 NAF Code. The procedural rules

                                                  -7-
       set forth in sections 5 through 16 of the FAA were specifically excluded. The 1999 NAF
       Code was an integral part of the parties’ agreement to arbitrate, and it cannot be severed
       without gutting the arbitration rider. The absence of the 1999 NAF Code renders the
       agreement to arbitrate unenforceable.

¶ 31                                   The NAF Consent Judgment
¶ 32       Finally, we pause to consider what level of confidence should be placed in the neutrality
       of the NAF Code in light of the consent judgment. Prior to 2009, the NAF was the largest
       forum in the United States for consumer-based arbitrations. When complaints of fraud and
       deceptive practices were raised by consumers, the Minnesota Attorney General began an
       investigation into the NAF’s practices, including the appointment of anti-consumer
       arbitrators. The Minnesota Attorney General found evidence that the NAF was not a neutral
       forum for consumer arbitrations as contemplated by the FAA and Congress. As a result of
       information obtained during the investigation, the Minnesota Attorney General filed a
       complaint against the NAF, alleging consumer fraud, deceptive trade practices, and false
       statements in advertising. Within a few weeks after the complaint was filed, the NAF settled
       the case with the Minnesota Attorney General. A court-approved consent judgment was
       entered on July 28, 2009. As part of the consent decree, the NAF agreed that it would not
       “accept any fee for processing any new Consumer Arbitration,” and that it would not
       “administer or process any new Consumer Arbitration.” See State v. National Arbitration
       Forum, Inc., No. 27-CV-09-18550, 2009 WL 5424036 (Minn. 4th Dist. Ct. July 17, 2009)
       (consent decree). Thus, the largest consumer-based arbitral forum in the United States agreed
       to cease all consumer arbitrations immediately.
¶ 33       In this case, the designated 1999 NAF Code was crafted by an entity that has been
       nationally discredited as an arbitral forum for consumer-based arbitrations. This should
       generate serious questions about the neutrality of the NAF Code, and the fundamental
       fairness and integrity of any proceeding conducted under the NAF Code. Such questions,
       while troubling, are not presently before this court and must be saved for another day.

¶ 34                                           CONCLUSION
¶ 35       In summary, the unavailability of the NAF and the absence of the 1999 NAF Code leave
       the parties without their designated arbitrator and the rules specifically chosen to govern the
       arbitration. The designation of the NAF as the arbitral forum and the term mandating use of
       the 1999 NAF Code were integral to the parties’ agreement to arbitrate. The arbitration rider
       specifically omitted the procedural rules set forth in sections 5 through 16 of the FAA,
       leaving the court without any rules by which this arbitration should proceed. It is not within
       the province of this court, or the trial court, to rewrite the arbitration rider to reinstate omitted
       terms or to add new terms. Such actions would violate basic rules of contract law and run
       contrary to the clear intent of the parties as expressed by the plain language in the arbitration
       rider. The unavailability of the NAF as an arbitral forum and the absence of the 1999 NAF
       Code render the parties’ agreement to arbitrate unenforceable.
¶ 36       Accordingly, the order of the circuit court granting the defendants’ motion to compel
       arbitration is reversed, and the cause is remanded for further proceedings.



                                                     -8-
¶ 37      Reversed and remanded.

¶ 38       PRESIDING JUSTICE SCHWARM, dissenting.
¶ 39       I respectfully dissent. The majority argues that the arbitration rider contains an
       “agreement, albeit implicit, *** that the parties intended to arbitrate their disputes before the
       NAF.” Supra ¶ 14. However, the language of the arbitration rider does not support this
       conclusion. The arbitration rider states that “[a]ll disputes *** arising from *** the loan ***
       shall be resolved by binding arbitration, and not by court action.” The arbitration rider states
       that claims can be filed at any NAF office but does not require it. The arbitration rider
       concludes with a block-letter disclaimer stating that the signee is “AGREEING TO HAVE
       ANY DISPUTE ARISING OUT [OF] THE MATTERS DESCRIBED *** ABOVE
       DECIDED EXCLUSIVELY BY ARBITRATION.” Thus, the arbitration rider has no
       language stating that the NAF must act as arbitrator. This case is unlike Carr v. Gateway,
       Inc., 241 Ill. 2d 15, 944 N.E.2d 327 (2011), where the arbitration agreement contained a
       clause “that allowed the arbitrator to impose monetary penalties on a party for bringing a
       dispute in any forum other than the NAF.” Id. at 20, 944 N.E.2d at 329. Because the
       arbitration rider in this case lacks a penalty provision or any other clause with a similar
       effect, it does not contain an agreement, even implicitly, that all disputes be arbitrated before
       the NAF.
¶ 40       Further, the designation of the NAF’s Code of Procedure without designating the NAF as
       arbitrator indicates that the NAF was not considered to be the exclusive arbitrator for any
       dispute. In Brown v. Delfre, 2012 IL App (2d) 111086, 968 N.E.2d 696, the parties had
       agreed to an arbitration agreement stating that arbitration would be “ ‘conducted by and
       according to the securities arbitration rules then in effect of the [arbitration company].’ ”
       (Emphasis in original.) Id. ¶ 4. The appellate court noted that the plain language stated only
       that arbitration “[would] be conducted ‘by and according to’ the rules” of the arbitration
       company.” Id. ¶ 19. The court noted that “if the parties contemplated that [the arbitration
       company] would be the exclusive arbitral forum, there would be no need to specify that the
       arbitration must be conducted by [the arbitration company’s] rules.” Id. ¶ 20. The court
       ultimately determined that the arbitration agreement did not require the use of the arbitration
       company as arbitrators and, therefore, held the circuit court erred in finding the arbitration
       agreement unenforceable. Id. ¶ 29. Similarly, if the parties in our case intended to have the
       NAF arbitrate all disputes, then the arbitration rider would not need to state that it was to be
       governed by the NAF’s Code of Procedure. Thus, the statement that arbitration was to be
       governed by the NAF’s Code of Procedure without an indication that NAF was to be the
       exclusive arbitrator supports the inference that the NAF was not to be the exclusive
       arbitrator.
¶ 41       The majority further argues that the arbitration rider’s failure to include section 5 of the
       FAA prevents us from affirming the circuit court’s decision. However, because the
       arbitration rider does not designate the NAF as exclusive arbitrator, the lack of a right to
       substitute arbitrator should have no bearing on this case. The arbitration rider did not require
       that NAF act as exclusive arbitrator, and we therefore are not being asked to appoint a
       substitute arbitrator to “replace” the NAF. The circuit court’s order simply compels the
       parties to settle their dispute before an agreed-upon arbitrator. Because no arbitrator has been


                                                   -9-
       a part of this case, the arbitration rider’s failure to include the FAA provision regarding
       procedures to appoint a substitute arbitrator should not affect our decision.
¶ 42       If the NAF were intended as an exclusive arbitrator, the parties may have included that
       information in the 1999 NAF Code governing the arbitration agreement. However, the 1999
       NAF Code is not a part of the record. The majority argues that “it was initially [the
       appellees’] burden to establish the enforceability of the arbitration agreement” and thus
       determines that “[a]ny doubts about enforceability that arise from the absence of the 1999
       NAF Code are resolved against the [appellees].” Supra ¶ 26. However, “[t]he law is well
       settled that the appellant bears the burden of presenting a sufficiently complete record to
       support her claim of error and any doubts arising from the incompleteness of the record will
       be resolved against her.” Lewandowski v. Jelenski, 401 Ill. App. 3d 893, 902, 929 N.E.2d
       114, 123 (2010). “When the appellant has failed to present this court with a complete record,
       the reviewing court must indulge in every reasonable presumption favorable to the judgment
       and will presume the trial court followed the law and had a sufficient factual basis for its
       ruling.” Id. See also Lamb-Rosenfeldt v. Burke Medical Group, Ltd., 2012 IL App (1st)
       101558, ¶ 22, 967 N.E.2d 411 (failure to include full transcripts of discovery depositions,
       response to motion for summary judgment, and transcript of hearing on the motion for
       summary judgment resolved against the appellant); In re Estate of Matthews, 409 Ill. App. 3d
       780, 783, 948 N.E.2d 187, 191 (2011) (petitioner’s failure to ensure her petition to vacate
       respondent’s claim and the transcript of the hearing conducted on her petition appeared in the
       record on appeal interpreted against her even when her petition was attached on the appendix
       to her appellate brief); Han v. Holloway, 408 Ill. App. 3d 387, 390, 945 N.E.2d 45, 48 (2011)
       (absence of appellant’s trial testimony, which was referenced throughout her brief and central
       to her argument on appeal, is interpreted against her). Thus, throughout civil law, failure to
       provide a sufficiently complete record is interpreted against the appellant. Even in criminal
       law, it is the appellant’s burden to properly complete the record on appeal, and any doubts
       arising from the incompleteness of the record are construed against the appellant unless the
       appellant shows the record is incomplete due to no fault of his or her own and demonstrates
       there is a colorable need for the missing portion of the record in order to have appellate
       review. People v. Henderson, 2011 IL App (1st) 090923, ¶ 45, 961 N.E.2d 407. Therefore,
       any doubts about enforceability that arise from the absence of the 1999 NAF Code should be
       interpreted against the appellant, not the appellees.
¶ 43       Further, even if we could interpret the 1999 NAF Code’s absence against the appellees,
       we should not do so in this case. The majority correctly notes that “[t]he party seeking to
       compel arbitration has the burden of proving that an arbitration agreement exists and that the
       claims raised are within the agreement’s scope.” Hubbert v. Dell Corp., 359 Ill. App. 3d 976,
       983, 835 N.E.2d 113, 121 (2005). The appellees moved to arbitrate on December 15, 2004.
       This motion was denied on July 18, 2007, and this court reversed the circuit court and
       compelled arbitration on July 10, 2009. Throughout these proceedings, the appellees used the
       arbitration rider to show that the arbitration agreement existed and that the claims were
       within its scope. The 1999 NAF Code was not needed, nor likely relevant, to meet the
       appellees’ burden. The 1999 NAF Code only became relevant when the appellant presented
       the motion leading to this appeal on September 23, 2009, after the appellees had successfully
       compelled arbitration. It was therefore the appellant’s burden to submit the 1999 Code before
       the circuit court, just as it was her burden to provide it as part of a complete record on appeal.


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¶ 44       The arbitration rider here stated repeatedly and clearly that it was to require that all
       disputes arising from the loan be resolved by binding arbitration. It contained no language
       requiring that the NAF act as exclusive arbitrator. It contained no penalty provision to be
       enforced if the parties chose an arbitrator other than the NAF. Based on the plain and obvious
       meaning of the arbitration rider as a whole, it is clear that the parties’ primary intent by the
       agreement was to arbitrate their disputes under NAF rules and not to require that the NAF
       serve as arbitrator. The arbitration rider does not implicitly show an agreement between the
       parties that the NAF will act as the exclusive arbitrator. Thus, the NAF is not the exclusive
       arbitrator, and the failure to include section 5 of the FAA in the arbitration rider is irrelevant
       because there has been no need for a substitute arbitrator. Moreover, even if the 1999 NAF
       Code could support the appellant’s argument, it was the appellant’s burden to include the
       1999 NAF Code both in the circuit court and on appeal, and any doubts arising from its
       absence should be construed against the appellant. Therefore, I respectfully dissent.




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