Rel: 11/14/14




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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130219
                             ____________________

                                   Regions Bank

                                           v.

                            Jerry Wayne Neighbors

                 Appeal from Montgomery Circuit Court
                            (CV-13-901459)



BRYAN, Justice.

      Regions Bank ("Regions") appeals from an order denying

its motion to compel arbitration.                  We reverse and remand.
1130219

       In   1999,     Jerry    Wayne     Neighbors          obtained    from       Union

Planters Bank a loan in the amount of $64,100, which was

secured by a mortgage on real property owned by Neighbors and

his then wife.        Regions is the successor in interest to Union

Planters Bank.         As part of the loan transaction, Neighbors

executed a dispute-resolution agreement ("the DRA"), which

provides, in pertinent part: "Borrower and Lender irrevocably

agree to settle all disputes between them ... by negotiation,

mediation, and arbitration ...."                    The DRA further provides

that     "'disputes'        means      all       past,   present,       and    future

disagreements,         controversies,             claims,     and    counterclaims

between Borrower and Lender and includes without limitation

all    matters      relating      to   this      Agreement,    any     extension      of

credit, any tort, any insurance, any service, or any product."

The DRA also states: "Borrower and Lender intend for this

Agreement to cover the broadest range of disputes and legal

issues that may be arbitrated under federal law.                       Borrower and

Lender      agree    that   any    questions        as   to   the    scope    of    this

Agreement shall be determined by the arbitrator (including,

without limitation all issues of formation, consideration,




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1130219

capacity,   fairness,     unconscionability,    mutuality,      duress,

fraud, adhesion, arbitrability, revocability, and waiver)."

    In    2008,   a   loan-modification    agreement   was   executed,

purportedly amending the mortgage.         Neighbors denies that he

signed the loan-modification agreement; he claims that his

signature on that document was forged.        The loan-modification

agreement also contains an arbitration provision.

    In 2013, Neighbors sued Regions, alleging that Regions

had negligently and wantonly allowed an imposter to forge

Neighbors's    signature    on   the   loan-modification     agreement.

Relying on the DRA, Regions moved to compel the arbitration of

Neighbors's claims. 1      Neighbors opposed the motion to compel

arbitration.      Following a hearing, the trial court denied the

motion to compel, without stating a reason.        Regions appealed

pursuant to Rule 4(d), Ala. R. App. P., which authorizes an




    1
     When the original loan documents were executed, they were
supplemented by a rider that included an arbitration agreement
separate from the DRA. However, the rider indicates that the
arbitration agreement therein would not apply if there is a
"separate Alternative Dispute Resolution Agreement," like the
DRA. However, the arbitration provision in the rider would
apply if the DRA were determined          to be invalid or
unenforceable. Regions sought arbitration under the DRA, not
the arbitration provision in the rider or the arbitration
provision in the loan-modification agreement.

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1130219

appeal from an order either granting or denying a motion to

compel arbitration.

               "'This Court's review of an order
          granting or denying a motion to compel
          arbitration is de novo. ...'

    "United Wisconsin Life Ins. Co. v. Tankersley, 880
    So. 2d 385, 389 (Ala. 2003). Furthermore:

              "'"A motion to compel arbitration
              is analogous to a motion for
              summary judgment. TranSouth Fin.
              Corp. v. Bell, 739 So. 2d 1110,
              1114  (Ala.    1999).    The   party
              seeking to compel arbitration has
              the   burden    of    proving    the
              existence of a contract calling
              for arbitration and proving that
              that    contract     evidences     a
              transaction affecting interstate
              commerce. Id. 'After a motion to
              compel arbitration has been made
              and supported, the burden is on
              the    non-movant     to     present
              evidence    that    the    supposed
              arbitration   agreement     is   not
              valid or does not apply to the
              dispute in question.'"

          "'Fleetwood Enters., Inc. v. Bruno, 784 So.
          2d 277, 280 (Ala. 2000) (quoting Jim Burke
          Auto., Inc. v. Beavers, 674 So. 2d 1260,
          1265 n. 1 (Ala. 1995) (emphasis omitted)).'

    "Vann v. First Cmty. Credit Corp., 834 So. 2d 751,
    753 (Ala. 2002)."

Cartwright v. Maitland, 30 So. 3d 405, 408–09 (Ala. 2009).




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1130219

       In this case, there is no dispute regarding the existence

of   the    DRA   and    the   fact   that      it   evidences       a    transaction

affecting interstate commerce.                  Rather, the parties disagree

about      whether   Neighbors's          claims     are   covered       by   the   DRA.

Regions argues that the scope of the DRA is broad enough to

include Neighbors's claims.                    Regions also argues that the

issue whether the scope of the DRA encompasses Neighbors's

claims is a threshold issue that, under the terms of the DRA,

should      be    decided      by   the    arbitrator;       this        argument     is

dispositive.         Neighbors argues that, because the dispute in

this case involves an alleged forgery, the dispute cannot be

subject to the provisions of the DRA.                  Neighbors also suggests

that the DRA does not cover his claims because, he says,

pursuant to the terms of the judgment divorcing him and his

wife, he stopped making payments on the original mortgage in

2006       when    his    ex-wife         remarried.       Although           Neighbors

characterizes the dispute otherwise, we conclude that the

dispute in this case concerns the scope of the DRA.

       Whether a specific dispute falls within the scope of an

arbitration agreement is a threshold question of "substantive

arbitrability," a term sometimes used by this Court, or simply



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1130219

"arbitrability" as the United States Supreme Court has called

it.    Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35

So. 3d 601, 604 (Ala. 2009) (discussing the difference between

questions     of    "substantive        arbitrability"        and    "procedural

arbitrability");         Howsam v. Dean Witter Reynolds, Inc., 537

U.S.   79,   83-85    (2002)     (discussing     the    difference       between

"questions of arbitrability," which this Court has sometimes

referred to as questions of "substantive arbitrability," and

"procedural        questions,"    which      this     Court    has     sometimes

referred to as questions of "procedural arbitrability").                      As

a threshold matter, a court decides issues of substantive

arbitrability "[u]nless the parties clearly and unmistakably

provide otherwise."            AT&T Techs., Inc. v. Communications

Workers of America, 475 U.S. 643, 649 (1986).                   In this case,

the DRA shows that the parties clearly and unmistakably agreed

to    have   an    arbitrator,    not    a   court,    decide       substantive-

arbitrability issues concerning the scope of the DRA and,

indeed, all issues of "arbitrability."                The DRA provides that

"Borrower and Lender agree that any questions as to the scope

of    this   Agreement    shall    be    determined     by     the    arbitrator

(including, without limitation all issues of ... arbitrability



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1130219

...)."    Thus, as an initial matter, the arbitrator must decide

whether Neighbors's claims fall within the scope of the DRA.

    The trial court erred in denying the motion to compel

arbitration.    We therefore reverse the order and remand the

case for further proceedings consistent with this opinion.

    REVERSED AND REMANDED.

    Stuart, Bolin, Parker, Main, and Wise, JJ., concur.

    Shaw, J., concurs in the result.

    Moore, C.J., and Murdock, J., dissent.




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1130219

MURDOCK, Justice (dissenting).

    I respectfully dissent.

    I do not agree that the issue of arbitrability was for

the arbitrator to decide in this case.         Whether the dispute at

issue     falls   within   the   scope   of   the   dispute-resolution

agreement was for the trial court to decide.           See Anderton v.

The Practice-Monroeville, P.C. [Ms. 1121417, Sept. 26, 2014]

___ So. 3d ___, ___ (Ala. 2014) (Murdock, J., dissenting);

Auto Owners Ins., Inc. v. Blackmon Ins. Agency, Inc., 99 So.

3d 1193, 1199 (Ala. 2012) (Murdock, J., dissenting).




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