                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5325-17T2

ROSA M. WILLIAMS-HOPKINS,
on behalf of herself and those
similarly situated,

          Plaintiff-Appellant,

v.

LVNV FUNDING, LLC,

     Defendant-Respondent.
______________________________

                    Argued March 27, 2019 – Decided April 26, 2019

                    Before Judges Koblitz, Currier, and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-6190-17.

                    Scott C. Borison (Legg Law Firm, LLP), of the District
                    of Columbia, Maryland, and California bars, admitted
                    pro hac vice, argued the cause for appellant (Kim Law
                    Firm, LLC, and Scott C. Borison, attorneys; Yongmoon
                    Kim and Scott Borison, of counsel and on the briefs).

                    Michael A. Iannucci argued the cause for respondent
                    (Blank Rome, LLP, attorneys; Michael A. Iannucci, on
                    the brief).
PER CURIAM

      Plaintiff Rosa M. Williams-Hopkins appeals from a June 8, 2018 order

compelling arbitration and dismissing her complaint with prejudice. We affirm

the order compelling arbitration. However, we remand to the trial court to issue

an amended order staying the case pending arbitration or, in the alternative,

dismissing the complaint without prejudice.

      The facts are set forth in plaintiff's complaint. In 2003, plaintiff acquired

a credit card from First Premier Bank (Bank). To be issued a credit card,

plaintiff was required to sign a Credit Card Contract and Initial Disclosure

Agreement (Agreement), indicating her assent to the terms and conditions in the

document.

      The Agreement stated "any claim, dispute or controversy between you and

us arising from or relating to the [c]ontract or your [c]redit [a]ccount

relationship . . . including, but not limited to the validity, enforceability or scope

of the [a]rbitration [p]rovision [or] the contract. . . shall be settled by binding

arbitration . . . ." The term "claim" addressed "claims of every kind and nature,

including but not limited to initial claims, counterclaims, cross claims and third

party claims, and claims based upon contract, tort, fraud and other torts, statutes,

. . . regulations, common law and equity." The word "contract" encompassed


                                                                              A-5325-17T2
                                          2
"the terms and conditions outlined in [the] Agreement." The term "us" included

the Bank "and all of its affiliates, licensees, predecessors, successors, assigns,

[and] any purchaser of your [c]redit [a]ccount . . . ." The Agreement also

included, in capital letters, a "Waiver of Right to Trial" and "Waiver of Right to

Participate in Class Action."

      Plaintiff did not deny signing the Agreement. Nor did she disavow her

use of the credit card for three years before defaulting on her payment

obligations.

      Defendant LVNV Funding, LLC purchased plaintiff's credit card account

debt from the Bank. Plaintiff did not dispute that defendant purchased her debt

related to the credit card.

      On October 18, 2017, plaintiff commenced a class action lawsuit against

defendant.     Defendant moved to dismiss plaintiff's complaint and compel

arbitration in accordance with the Agreement. After hearing the arguments of

counsel, the motion judge granted defendant's motion and dismissed plaintiff's

complaint with prejudice. The judge concluded plaintiff signed the Agreement

and, consistent with the terms and conditions in the Agreement, plaintiff's claims

were required to be resolved through arbitration.




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                                        3
      On appeal, plaintiff argues defendant failed to prove it had a valid

assignment of the Agreement from the Bank.         Absent evidence of a valid

assignment, plaintiff claims defendant cannot compel arbitration. 1

      "The existence of a valid and enforceable arbitration agreement poses a

question of law" requiring our de novo review. Barr v. Bishop Rosen & Co.,

Inc., 442 N.J. Super. 599, 605 (App. Div. 2015) (citing Hirsch v. Amper Fin.

Servs., LLC, 215 N.J. 174, 186 (2013)). "Our review of a contract, generally,

is de novo, and therefore we owe no special deference to the trial court's . . .

interpretation. Our approach in construing an arbitration provision of a contract

is governed by the same de novo standard of review." Atalese v U.S. Legal

Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014) (citation omitted).

      Both federal and state law governing arbitration agreements apply to this

matter. The Federal Arbitration Act, 9 U.S.C. §§ 1 to 16, and the Uniform

Arbitration Act, N.J.S.A. 2A:23B-1 to -32, support arbitration of disputes.

Roach v. BM Motoring, LLC, 228 N.J. 163, 173 (2017); Hojnowski v. Vans

Skate Park, 187 N.J. 323, 342 (2006).



1
   Plaintiff contends she raised this issue to the trial court. However, motion
briefs are not part of the record on appeal. See R. 2:6-1(a)(2). In reviewing the
transcript of the motion to compel arbitration, we note the issue was not argued
before the motion judge.
                                                                         A-5325-17T2
                                        4
      The Agreement states any claim "including, but not limited to the validity,

enforceability or scope of the [a]rbitration [p]rovision [or] the contract" shall be

"settled by binding arbitration."    The Agreement expressly provides neither

party has "the right to litigate any claim in court or have a jury trial on that

claim." The Agreement applies to plaintiff and "any purchaser of [a] [c]redit

[a]ccount."

      The Agreement also provides any claim shall be adjudicated by an

arbitrator. The United States Supreme Court has held "a court may not decide

an arbitrability question that the parties have delegated to an arbitrator." Henry

Schein, Inc. v. Archer & White Sales, Inc., ___ U.S. ___, 139 S. Ct. 524, 530

(2019); see also Amalgamated Transit Union, Local 880 v. N.J. Transit Bus

Operations, Inc., 200 N.J. 105, 118 (2009) (holding "[a] court's duty is to refrain

from adjudicating the merits of a dispute that properly belongs to an arbitrator").

      Here, plaintiff's claim relates to the Bank's assignment of the Agreement

to defendant. This issue, as well as other issues raised by plaintiff, must be

submitted to arbitration in accordance with the terms of the Agreement. During

oral argument before the panel, defendant conceded the arbitrator should

determine whether the Bank assigned to defendant all rights under the

Agreement, including the right to compel arbitration.


                                                                            A-5325-17T2
                                         5
      While we affirm the order compelling arbitration of plaintiff's claims, the

judge improvidently dismissed plaintiff's complaint with prejudice. See GMAC

v. Pittella, 205 N.J. 572, 582 n.6 (2011) (citing N.J.S.A. 2A:23B-7(g)). The

Uniform Arbitration Act provides for stays, rather than dismissals, of ma tters

pending arbitration. Ibid. Therefore, we remand the matter to the trial court to

enter an amended order staying the action pending arbitration or, in the

alternative, dismissing the complaint without prejudice.

      Affirmed as to compelling arbitration. Remanded for the entry of an

amended order consistent with this opinion. We do not retain jurisdiction.




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