                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Asset Acceptance, LLC v. Tyler, 2012 IL App (1st) 093559




Appellate Court            ASSET ACCEPTANCE, LLC, Plaintiff-Appellee, v. TERRENCE
Caption                    TYLER, Defendant-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1-09-3559


Filed                      March 2, 2012


Held                       Where plaintiff purchased defendant’s credit card account, sought
(Note: This syllabus       arbitration regarding the amount due, was awarded the full amount
constitutes no part of     claimed and then sought confirmation of the award, the trial court
the opinion of the court   properly found that defendant forfeited his claim that the arbitration
but has been prepared      proceedings were a fraud and dismissed his counterclaims on the ground
by the Reporter of         that they were not properly raised in the action to confirm the award, but
Decisions for the          the trial court erred in confirming the award, since plaintiff did not
convenience of the         comply with the requirement of section 13 of the Federal Arbitration Act
reader.)
                           that plaintiff file with its motion to confirm not only the arbitration
                           award, but also the arbitration agreement.
Decision Under             Appeal from the Circuit Court of Cook County, No. 07-M1-140644; the
Review                     Hon. Leon Wool, Judge, presiding.



Judgment                   Affirmed in part and reversed in part.
Counsel on                  Theodore A. Woerthwein and John Miller, both of Woerthwein & Miller,
Appeal                      of Chicago, for appellant.

                            Stephen R. Swofford, David M. Schultz, and John P. Ryan, all of
                            Hinshaw & Culbertson LLP, of Chicago, for appellee.


Panel                       JUSTICE GARCIA delivered the judgment of the court, with opinion.
                            Justices McBride and Palmer1 concurred in the judgment and opinion.



                                               OPINION

¶1          The circuit court granted the motions of plaintiff Asset Acceptance, LLC (Asset), to
        confirm an arbitration award and to dismiss defendant Terrence Tyler’s five-count
        counterclaim. In its complaint, Asset alleged it was assigned Tyler’s credit card debt. In an
        arbitration proceeding in which Tyler did not appear, Asset was awarded the full amount of
        the debt of $4,356.99. In proceedings before the court to confirm the award, in addition to
        various affirmative defenses and counterclaims, Tyler denied the existence of an agreement
        to arbitrate. Asset moved to confirm the award and to dismiss the affirmative defenses and
        counterclaims, arguing the defenses were forfeited when he failed to raise them during the
        statutory limitations period to contest the arbitration award and his counterclaims were
        subject to dismissal because they were improperly pled in an action to confirm an arbitration
        award. The court granted both motions. We affirm the circuit court’s ruling that the
        counterclaims could not be asserted in a summary proceeding to confirm an arbitration
        award. However, we reverse the order confirming the arbitration award where Asset failed
        to make out a prima facie case to confirm the arbitration award when it did not produce the
        parties’ written agreement to arbitrate as required by statute.

¶2                                        BACKGROUND
¶3          On April 26, 2007, Asset filed its complaint, seeking a judgment based on an arbitration
        award it received against Tyler. The complaint attached the written arbitration decision.
        Asset’s complaint alleged the following. MBNA America Bank, N.A. (MBNA), entered into
        a credit card agreement with Tyler and Tyler incurred charges on the card. Asset purchased
        Tyler’s credit card account with MBNA. After Tyler failed to pay his balance of over $4,000,
        Asset filed a demand for arbitration on January 15, 2007, with the National Arbitration
        Forum. On March 12, 2007, an arbitration hearing was held; Tyler did not participate. The


                1
                Justice Cahill served on the panel at oral argument. Justice Palmer replaced Justice Cahill
        following Justice Cahill’s death on December 4, 2011.

                                                   -2-
     arbitration decision recited, “On or before 01/15/2007 the Parties entered into a written
     agreement to arbitrate their dispute.” The decision stated, “No Party has asserted that this
     Arbitration Agreement is invalid or unenforceable.” The arbitrator awarded Asset the full
     amount claimed. When Tyler failed to timely challenge the award under the Federal
     Arbitration Act (FAA) (9 U.S.C. § 1 et seq. (2006)), Asset filed a complaint in the circuit
     court, requesting judgment against Tyler in the amount of the arbitration award. The
     complaint had attached Asset’s legal support supervisor’s sworn affidavit in which he
     attested to the truthfulness of the balance Tyler owed to Asset. Before Tyler responded to the
     complaint, Asset filed a motion to confirm the arbitration award. Asset did not attach an
     arbitration agreement between MBNA and Tyler to its motion to confirm filed on March 11,
     2008.
¶4       On March 13, 2008, Tyler filed an answer with affirmative defenses and counterclaims.
     In his answer, Tyler denied entering into a credit card agreement with MBNA. Tyler also
     asserted other affirmative defenses and five counterclaims. For his counterclaim relief, Tyler
     sought damages in excess of $50,000.
¶5       On June 11, 2008, Asset moved to strike Tyler’s affirmative defenses and dismiss each
     of Tyler’s counterclaims on various grounds. Asset attached two purported bank card
     documents to its motion to dismiss, each containing an arbitration clause. Premised on its
     right to arbitrate the dispute over credit card debt, Asset argued all of Tyler’s claims were
     unavailing. Asset argued that Tyler’s affirmative defenses were insufficient as a matter of
     law and his counterclaims were subject to dismissal with prejudice because (1) none was
     raised at arbitration proceeding as required by the arbitration clause and (2) the claims were
     barred by the 90-day limitation period set by the Illinois Uniform Arbitration Act (Illinois
     Act) (710 ILCS 5/2(b) (West 2010))2 and the 3-month limitation period set by the FAA (9
     U.S.C. § 12 (2006)).
¶6       In his June 30, 2008 response to Asset’s motion to confirm the award, Tyler argued in
     part that Asset’s motion should be denied because neither the arbitration decision nor the
     purported bank card agreements were authenticated.
¶7       In its reply, Asset asserted that Tyler was barred from challenging the arbitration award
     because he failed to move to vacate the award within the nearly identical limitation periods
     of the FAA and the Illinois Act. Further, Asset contended that the allegations in the
     complaint were verified by the legal support supervisor’s affidavit attached to the complaint.
¶8       On July 18, 2008, Tyler filed a motion to strike Asset’s motion to dismiss the
     counterclaims, arguing in part that Asset’s motion, supported by the purported bank card
     agreements, was legally insufficient.
¶9       On March 12, 2009, the circuit court ordered Asset to file a supplemental brief “as to why


             2
               Neither party argues the Illinois Act provides a separate basis for the positions taken in the
     respective briefs. Accordingly, we limit our discussion of the issues raised in this appeal to the FAA.
     See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489
     U.S. 468, 477 (1989) (“state law may *** be pre-empted to the extent that it actually conflicts with
     federal law”).

                                                   -3-
       the arbitration award bars Tyler’s counterclaims.” In its supplemental brief, Asset argued that
       Tyler’s counterclaims were time barred because they were filed well beyond the FAA’s
       three-month limitation period to challenge an arbitration award. Asset claimed the limitation
       period began to run when notice of the arbitration award was mailed to Tyler on March 12,
       2007; the counterclaims were not filed until March 13, 2008.
¶ 10        Asset also asserted it did not have to petition a court under section 4 of the FAA to
       compel Tyler to arbitrate the dispute. According to Asset, the arbitration agreement between
       MBNA and Tyler expressly provided that disputes are subject to arbitration pursuant to
       National Arbitration Forum (NAF) rules, which allow an arbitrator to issue an award even
       if the opposing party fails to appear at the arbitration hearing. Asset submitted Tyler’s letter
       from February 2007 to confirm Tyler received notice of the arbitration proceeding, in which
       Tyler stated: “I’m very disturbed that I have received correspondence that you have filed an
       arbitration claim.”
¶ 11        In Tyler’s response to Asset’s supplemental brief, he argued that Asset did not comply
       with the requirement in section 13 of the FAA that the underlying arbitration agreement be
       attached to the motion to confirm. Tyler also asserted section 4 of the FAA required Asset
       to file a court action to compel arbitration before it could proceed to an arbitration hearing.
       He argued that in the absence of a section 4 petition, Asset could not seek judicial
       confirmation of the arbitration award. Finally, Tyler contended the FAA’s three-month
       limitation period did not apply to his claim that no agreement to arbitrate existed.
¶ 12        The circuit court dismissed all five counts of Tyler’s counterclaim with prejudice, ruled
       Tyler’s affirmative defenses were unavailable in a proceeding to confirm an arbitration
       award, and granted Asset’s motion to confirm the arbitration award. The court denied Tyler’s
       motion to reconsider. This timely appeal followed.

¶ 13                                        ANALYSIS
¶ 14       Tyler challenges the rulings below on various fronts. First, he contends no prima facie
       case for confirmation was established by Asset because Asset did not present sufficient proof
       of an agreement to arbitrate under section 13 of the FAA. Second, Tyler asserts Asset was
       required to file a petition under section 4 of the FAA before proceeding to an arbitration
       hearing. Third, Tyler argues that the FAA’s three-month limitation period to vacate an
       arbitration award does not apply to a party contending that no agreement to arbitrate exists.
       Fourth, Tyler argues that the circuit court erred in dismissing his counterclaims because
       Asset failed to support its motion to dismiss with an affidavit. Fifth, Tyler argues that the
       award lacks trustworthiness because the NAF proceeding was a fraud. Finally, Tyler argues
       that the circuit court erred when the court dismissed his counterclaim alleging violations of
       the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq. (2006)) because
       the claim was independent of the action to confirm the arbitration award.
¶ 15       We address only those issues necessary to resolve this appeal. We first address Tyler’s
       challenge to the proceedings before the NAF. We then address whether Tyler’s counterclaims
       were properly pled in a proceeding to confirm an arbitration award, including his claim under
       the FDCPA. Next, we address whether section 4 of the FAA applies to the instant case. We

                                                 -4-
       then address Tyler’s contention that Asset did not make out a prima facie case to support its
       motion to confirm the arbitration award. Only if Asset made out a prima facie case to
       confirm the arbitration award would we need to address Tyler’s claim that no arbitration
       agreement existed, a claim he contends he may assert beyond the statutory period for
       contesting arbitration awards under the FAA. We address each of the issues consistent with
       the briefs of the parties that focus on the FAA, rather than its counterpart the Illinois Act,
       which the parties do not dispute is for all practical purposes identical to the FAA on the
       issues presented.

¶ 16                                1. Proceedings Under the NAF
¶ 17        Tyler argues that the entire proceeding before the NAF was a fraud. Tyler suggests that
       its fraudulent nature rendered futile any effort on his part to challenge the proceeding before
       the NAF. We disagree.
¶ 18        This is precisely the sort of claim that the FAA permits. Section 10 provides, in part, that
       an award may be vacated where the award was procured by fraud or where the arbitrators’
       misbehavior prejudiced the rights of a party. 9 U.S.C. §§ 10(a)(1), (a)(3) (2006). We find no
       difference between Tyler’s claim that the NAF is a fraud and the challenges permitted under
       section 10(a)(1) or section 10(a)(3); nor does Tyler offer a difference.
¶ 19        Because Tyler’s claim that the NAF proceeding was a fraud was the sort of claim
       permitted under section 10 of the FAA, Tyler was required to file that challenge “within three
       months after the award [was] filed or delivered” as prescribed by section 12 of the FAA. 9
       U.S.C. § 12 (2006). In any event, Tyler fails to provide us with any authority to support his
       contention that he may raise his “fraud” claim in a proceeding to confirm the arbitration
       award, which renders this claim forfeited. “Points raised in a party’s brief without ***
       relevant authority may be deemed waived.” Heatherly v. Rodman & Renshaw, Inc., 287 Ill.
       App. 3d 372, 379 (1997) (citing Ill. S. Ct. R. 341(e)(7) (eff. Aug. 1, 1988)).
¶ 20        The circuit court properly dismissed Tyler’s blanket contention that the NAF proceeding
       was a fraud.

¶ 21                                       2. Counterclaims
¶ 22       Tyler insists his five-count counterclaim was improperly dismissed by the circuit court.
       Tyler contends Asset’s failure to attach an affidavit to its motion to dismiss Tyler’s five-
       count counterclaim precluded the dismissal. By implication, Asset contends no affidavit was
       legally required to establish the affirmative matters raised in its motion filed under section
       2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)).
¶ 23       Our review of a dismissal based on a section 2-619 motion is de novo. Smith v.
       Waukegan Park District, 231 Ill. 2d 111, 115 (2008). A section 2-619 motion to dismiss
       affords a “means of obtaining *** a summary disposition of issues of law or of easily proved
       issues of fact, with a reservation of jury trial as to disputed questions of fact.” (Internal
       quotation marks omitted.) Id. at 120. Dismissal of a claim is appropriate when an affirmative
       matter bars or defeats a claim. Id. An affirmative matter encompasses any defense other than


                                                 -5-
       a negation of the essential allegations of the cause of action. Piser v. State Farm Mutual
       Automobile Insurance Co., 405 Ill. App. 3d 341, 344 (2010). An agreement to arbitrate is an
       affirmative matter that defeats claims that were required to be raised, but were not, in the
       arbitration proceeding. See Hollingshead v. A.G. Edwards & Sons, Inc., 396 Ill. App. 3d
       1095, 1101 (2009); Griffith v. Wilmette Harbor Ass’n, 378 Ill. App. 3d 173, 180 (2007). The
       failure to act within the time provided by law is likewise an affirmative matter. See Hubble
       v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d
       262, 267 (2010) (citing 735 ILCS 5-619(a)(5) (West 2006)).
¶ 24        Where the affirmative matter asserted is apparent on the face of a pleading, no affidavit
       is required to support a section 2-619 motion. Sierens v. Clausen, 60 Ill. 2d 585, 588 (1975).
       Even if an affidavit should have been filed, the absence of an affidavit may not be fatal.
       “[T]he Civil Practice Law *** needs to be construed liberally to fulfill its purpose of
       providing substantial justice and resolution on the merits, rather than imposing seemingly
       insurmountable procedural obstacles to litigation.” Doe v. Montessori School of Lake Forest,
       287 Ill. App. 3d 289, 296 (1997) (overlooking the failure to support section 2-619(a)(5) and
       section 2-619(a)(9) motions with affidavits). We turn to the reasons for the circuit court’s
       dismissal of Tyler’s five-count counterclaim.
¶ 25        “Actions to confirm arbitration awards *** are straightforward proceedings in which no
       other claims are to be adjudicated.” Ottley v. Schartzberg, 819 F.2d 373, 377 (2d Cir. 1987).
       “[T]he Federal Arbitration Act allows arbitration to proceed with only a summary hearing
       and with restricted inquiry into factual issues.” Booth v. Hume Publishing, Inc., 902 F.2d
       925, 932 (11th Cir. 1990). Counterclaims “that are beyond the scope of the defenses
       enumerated in the Act would change the nature of the confirmation proceedings and would
       defeat the purpose of the Act.” Id. at 933.
¶ 26        In his counterclaim, Tyler asserted five counts. In the first counts, Tyler asserted that
       Asset violated (1) the FDCPA, (2) the Illinois Collection Agency Act (225 ILCS 425/1 et
       seq. (West 2008)), (3) the Illinois Interest Act (815 ILCS 205/1 et seq. (West 2008)), and (4)
       the Consumer Fraud and Deceptive Practices Act (815 ILCS 505/1 et seq. (West 2008)). In
       count V of the counterclaim, Tyler requested an accounting of his unpaid obligation.
¶ 27        It is uncontested that none of Tyler’s counterclaims asserts a defense permitted under
       section 10 or 11 of the FAA to warrant consideration in the course of a motion to confirm
       an arbitration award. Booth, 902 F.2d at 932. By the express terms of the counts, each
       asserted a substantive claim that had no connection with a proceeding to confirm an
       arbitration award. The counterclaims were properly dismissed given the limited nature of the
       arbitration-based proceedings before the circuit court. See id. at 931; Ottley, 819 F.2d at 377.
¶ 28        Tyler nonetheless argues that count II of his counterclaim alleging a violation of the
       FDCPA is a cause of action independent of whether or not the arbitration award is or is not
       confirmed. He makes no similar claim as to the other three substantive counts. While Tyler
       maintains that his FDCPA claim was properly before the circuit court below, the claim is
       forfeited in the absence of supporting authority in his brief. Heatherly, 287 Ill. App. 3d at 379
       (citing Ill. S. Ct. R. 341(e)(7) (eff. Aug. 8, 1988)).
¶ 29        The circuit court properly granted Asset’s motion to dismiss each of Tyler’s


                                                 -6-
       counterclaims because the claims were not subject to adjudication in a proceeding to confirm
       an arbitration award, an affirmative matter apparent from the face of the motion.

¶ 30                                    3. Section 4 of the FAA
¶ 31       Tyler next argues Asset was required to file a court action to compel arbitration under
       section 4 of the FAA before Asset could proceed with the arbitration hearing before the NAF.
       Consistent with the parties’ briefs, we address whether the absence of a petition under section
       4 of the FAA precluded the arbitration proceeding before the NAF. See Bess v. DirectTV,
       Inc., 381 Ill. App. 3d 229, 234 (2008) (analyzing issue under section 4 of the FAA); but see
       Valden v. Discover Bank, 556 U.S. 49, 71 n.20 (2009) (the Supreme Court has not decided
       whether section 4 of the FAA applies to proceedings in state courts).
¶ 32       Under section 4 of the FAA, “A party aggrieved by the alleged failure, neglect, or refusal
       of another to arbitrate under a written agreement for arbitration may petition *** for an order
       directing that such arbitration proceed in the manner provided for in such agreement.” 9
       U.S.C. § 4 (2006).
¶ 33       There is a split in the federal circuit courts of appeal on whether section 4 of the FAA
       permits or mandates a court order directing that arbitration proceed. Four circuits have held
       that the language in section 4 of the FAA providing for “an order directing that such
       arbitration proceed” is permissive. Val-U Construction Co. of South Dakota v. Rosebud
       Sioux Tribe, 146 F.3d 573, 580 (8th Cir. 1998); Bernstein Seawell & Kove v. Bosarge, 813
       F.2d 726, 733 (5th Cir. 1987); Standard Magnesium Corp. v. Fuchs, 251 F.2d 455, 458 (10th
       Cir. 1957); Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir. 1953). A section
       4 action is required “only in those cases where one party refuses to participate in the
       arbitration and a court order is necessary for the arbitration to proceed ex parte.” Standard
       Magnesium Corp., 251 F.2d at 458 (an example where a section 4 petition is mandated is an
       arbitration agreement that requires each party to appoint an arbitrator and one party refuses
       to do so).
¶ 34       The First Circuit Court of Appeals has ruled a section 4 action must precede all
       arbitration proceedings if a party has failed to participate in the arbitration hearing. “It is
       unlikely that Congress intended to allow the provisions of section 4 to be bypassed so easily”
       by a party initiating arbitration and prevailing by default. MCI Telecommunications Corp.
       v. Exalon Industries, Inc., 138 F.3d 426, 430 (1st Cir. 1998). The reasoning in MCI
       Telecommunications Corp. on this point has been called into question. See, e.g., NCO
       Portfolio Management, Inc. v. Walker, 2008-1011, at 12 (La. App. 3 Cir. 2/4/09); 3 So. 3d
       628, 636 (“the MCI court appears to have a flaw in its logic. Section 4 permits (‘may’) but
       does not require (‘must’) a party to affirmatively petition the court for an order enforcing
       arbitration.”).
¶ 35       The express language of section 4 also suggests that only a party “aggrieved” by the
       refusal to arbitrate need petition a court for an order directing arbitration. 9 U.S.C. § 4 (2006)
       (“A party aggrieved *** may petition *** for an [arbitration] order ***.”). The language also
       makes clear that the ordered arbitration “proceed in the manner provided for in [the
       arbitration] agreement.” Id. Thus, it is the terms of the arbitration agreement that control

                                                  -7-
       whether a section 4 petition is mandated. Standard Magnesium Corp., 251 F.2d at 458. It
       follows that if the rules of the arbitration forum provided for by the parties’ agreement
       expressly permits ex parte proceedings, then section 4 of the FAA does not apply. Id. at 457
       (a section 4 petition is permissive and therefore not always a prerequisite to proceed with
       arbitration and for an award to be valid); Bernstein Seawell & Kove, 813 F.2d at 733 (“The
       decision to submit a dispute to arbitration is left solely to the agreement of the parties to the
       contract, and they are bound by its provisions.”); see also Peregrine Financials & Securities
       v. Hakakha, 338 Ill. App. 3d 197, 202-03 (2003) (section 4 of the FAA does not apply when
       neither party “refused” to arbitrate).
¶ 36       Here, we find no support for Tyler’s implicit contention that Asset was an “aggrieved”
       party under section 4 of the FAA to compel court action before arbitration could go forward.
       It makes no sense that under section 4 a party is rendered “aggrieved” after the opposing
       party fails to appear at the arbitration proceeding. Also, the arbitration agreement, upon
       which Asset claims to have acted, provided that the arbitration would proceed according to
       NAF rules. The NAF rules allow ex parte arbitration proceedings. A party is not “aggrieved”
       within the meaning of section 4 simply by the failure of the opposing party to participate in
       an arbitration proceeding in the manner provided for in the arbitration agreement. 9 U.S.C.
       § 4 (2006); Standard Magnesium Corp., 251 F.2d at 458; Peregrine Financials & Securities,
       338 Ill. App. 3d at 202-03.
¶ 37       We also note that Tyler’s February 2007 letter acknowledged that he received notice of
       Asset’s intention to arbitrate its claim. Tyler did not contend that his consent to arbitration
       was required. Nor did Tyler expressly state that he would not appear at the arbitration
       hearing. There is no support in the record that Tyler’s letter of February 2007 or his failure
       to appear at the arbitration equates with a refusal to arbitrate under section 4 of the FAA.
¶ 38       Because Asset was not an “aggrieved” party, it was not required to invoke section 4 of
       the FAA before proceeding to arbitrate its dispute with Tyler before the NAF.

¶ 39                          4. Prima Facie Case for Confirmation
¶ 40       We now address Tyler’s salient issue. Though related to his claim that no arbitration
       agreement existed between the parties, this issue differs regarding the party that carries the
       burden of proof, Asset as plaintiff or Tyler as defendant. Tyler contends that Asset failed to
       present a prima facie case for confirmation under section 13 of the FAA. In other words,
       Asset failed to carry its burden of proof that its motion to confirm was legally sufficient
       under section 13 of the FAA. As best we can tell, Asset’s position is that what is present in
       the record was sufficient for the circuit court to rule in its favor on its motion to confirm the
       arbitration award: “The award specifically finds that there was a valid arbitration agreement,
       binding upon the parties, and that no one had contended otherwise.”
¶ 41       The FAA supplies the mechanisms for the enforcement of arbitration awards. Hall Street
       Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008). “[A]rbitration is simply a matter
       of contract between the parties; it is a way to resolve those disputes–but only those
       disputes–that the parties have agreed to submit to arbitration.” First Options of Chicago, Inc.
       v. Kaplan, 514 U.S. 938, 943 (1995). “[S]ubmission of disputes to [arbitration] is totally

                                                 -8-
       dependent on the private will of the parties as embodied in whatever contract they may have
       entered into.” MCI Telecommunications Corp., 138 F.3d at 428. “The need for an agreement,
       or more accurately, one that is in writing, as [a] condition to gaining access to the umbrella
       provided by the FAA, manifests itself throughout the various provisions of this law.” Id. at
       429; see also Orion Shipping & Trading Co. v. Eastern States Petroleum Corp. of Panama,
       S.A., 312 F.2d 299, 300-01 (2d Cir. 1963) (district court correctly vacated arbitration award
       under sections 10 and 11 of the FAA where arbitrator improperly determined the rights of
       a party that was not a signatory to the arbitration clause).
¶ 42        The FAA requires the party seeking confirmation of an arbitration award to file its
       motion in the manner provided by law. 9 U.S.C. § 6 (2006) (“Any application to the court
       hereunder shall be made and heard in the manner provided by law ***.”). The specific
       manner to confirm an arbitration award is set forth in section 13 of the FAA: “The party
       moving for an order confirming *** an award shall *** file the following papers with the
       clerk: (a) The agreement; *** (b) The award.” 9 U.S.C. § 13 (2006). The standard of review
       of a circuit court’s decision to confirm an arbitration award is de novo. American Family
       Mutual Insurance Co. v. Stagg, 393 Ill. App. 3d 619, 622 (2009).
¶ 43        In addition to the written arbitration decision, the record contains two papers attached to
       Asset’s motion to dismiss Tyler’s counterclaims, each of which contains an “arbitration
       clause.” The first paper is unlabeled and bears no title; the second is titled “Credit Card
       Agreement Additional Terms and Conditions.” Neither paper contains Tyler’s name or his
       credit card account number. We understand Asset to contend that the two papers, along with
       the findings in the written arbitration decision, adequately support that an “arbitration
       agreement” existed between the parties for purposes of section 13 of the FAA.
¶ 44        Asset, however, also insists that Tyler’s assertion that no arbitration agreement was ever
       presented below was foreclosed by his failure to raise the issue under the provisions of the
       FAA. Asset cites Best Coin-Op, Inc. v. Clementi, 120 Ill. App. 3d 892, 898-99 (1983), and
       Mid-America Regional Bargaining Ass’n v. Modern Builders Industries Concrete Co., 101
       Ill. App. 3d 83, 88 (1981), as authority. We disagree that the two cases address the precise
       issue we address now.
¶ 45        In Mid-American Regional Bargaining Ass’n, the court addressed the question of whether
       the defendant “can raise the issue of whether there was an agreement to arbitrate seven
       months after it had notice of the award.” Mid-American Regional Bargaining Ass’n, 101 Ill.
       App. 3d at 84. Similarly, in Best Coin-Op, the issue was “whether defendants’ alleged timely
       failure to assert any of the statutory grounds for vacatur of the arbitrator’s award *** waived
       their right to challenge [the] award.” Best Coin-Op, 120 Ill. App. 3d at 893. Each case
       analyzed the issue in terms of the burden of the party that lost at arbitration and sought to
       vacate the award. In contrast, Tyler contends that Asset failed to meet its burden to make out
       a prima facie case to confirm the award under section 13 of the FAA, which renders
       inapposite both Mid-American Regional Bargaining Ass’n and Best Coin-Op. Neither case
       guides our decision here.
¶ 46        The precise issue before us concerns Asset’s burden to demonstrate it was entitled to
       have the arbitration award confirmed. The burden to challenge the arbitration award did not


                                                 -9-
       shift to Tyler until Asset established a prima facie case. See Morrison v. Flowers, 308 Ill.
       189, 195 (1923) (“A prima facie case is one *** established by evidence adduced by the
       plaintiff in support of his case ***.”); Getto v. City of Chicago, 392 Ill. App. 3d 232, 239-40
       (2009) (circuit court erred in shifting the burden of proof to the defendant at the conclusion
       of the trial); Tepper v. County of Lake, 233 Ill. App. 3d 80, 81 (1992) (circuit court erred in
       granting the defendant’s motion for a directed finding when the plaintiff presented a prima
       facie case).
¶ 47       The issuance of a credit card is only an offer to extend credit; acceptance of the credit
       offer occurs each time a credit purchase is made by the cardholder. Garber v. Harris Trust
       & Savings Bank, 104 Ill. App. 3d 675, 684 (1982). Consistent with the treatment of each
       credit card purchase as a separate offer and acceptance, modifications to credit card terms
       are binding between the parties when, after notice of the modifications, the cardholder uses
       his credit card. Id.
¶ 48       We take the papers containing an arbitration clause Asset filed below to suggest that the
       dispute between MBNA (hence Asset) and Tyler regarding his credit card debt was subject
       to arbitration. Problematic for Asset, however, is that the papers provide no evidence that
       they pertain to Tyler’s account; or that Tyler received the papers; or that Tyler agreed to the
       terms set forth in the papers by making a credit purchase after he was mailed the attached
       papers. See FIA Card Services, N.A. v. Weaver, 2010-1372, at 15 (La. 3/15/11); 62 So. 3d
       709, 718 (where no credit card contract containing an arbitration clause was ever signed,
       credit card issuer had burden to demonstrate modifications to the terms of the credit
       agreement were sent to cardholder and cardholder “made at least one purchase after this
       date”). In fact, the papers do not support the conclusion that Tyler and MBNA entered into
       a contract to arbitrate their disputes. MCI Telecommunications Corp., 138 F.3d at 428
       (arbitration agreements are “embodied in whatever contract [the parties] may have entered
       into”). Under Illinois law, similar documents have been deemed insufficient to establish a
       contract. Velocity Investments, LLC v. Alston, 397 Ill. App. 3d 296, 299 (2010) (the bank’s
       “ ‘Cardmember Agreement and Disclosure Statement’ ” was legally insufficient to collect
       on a credit card debt because the “Statement” was “not the written contract, as it offers no
       evidence that defendant agreed to be bound by these terms or that these terms even applied
       to this particular account”).
¶ 49       Nor does Asset provide us with information as to when the attached papers became part
       of any credit card agreement by Tyler’s use of the MBNA credit card. In fact, Asset failed
       to make any showing that the “arbitration clause” reflected in each of the papers predated
       Tyler’s receipt of the initial offer of credit by MBNA. It could be that the attached papers
       came into existence after Tyler’s last use of the MBNA credit card. See FIA Card Services,
       2010-1372, at 14 (La 3/15/11); 62 So. 3d 709, 718 (“It is undisputed that the original
       agreement between [credit card holder] and MBNA contains no arbitration clause.”). Asset
       failed to provide the information necessary to uphold the “arbitration clause” papers, spread
       of record, as the equivalent of the underlying agreement to arbitrate between the parties as
       required by section 13 of the FAA. Id.; see also Velocity, 397 Ill. App. 3d at 299 (the absence
       of the underlying written contract not sufficiently explained (citing 735 ILCS 5/2-606 (West
       2006))).

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¶ 50       Nor do the allegations in Asset’s complaint fill in the gaps in the credit-offer-and-
       acceptance dates. Asset alleged that MBNA issued Tyler a credit card with a specific
       number, but failed to state when the credit card was issued. Asset alleged the “Defendant
       incurred charges by the use of the credit card,” but failed to state the date of the last charge
       on the credit card. While Asset alleged that “[o]n or about January 15, 2007, the plaintiff
       (Asset) filed a Demand for arbitration with the National Arbitration Forum,” the complaint
       does not state when Asset became the assignee of Tyler’s credit card debt initially held by
       MBNA.
¶ 51       The written arbitration decision also leaves unanswered the question of when the
       purported arbitration agreement became incorporated in the credit agreement between
       MBNA and Tyler. The written arbitration decision from the NAF, which Asset properly
       submitted under section 13 of the FAA with its motion to confirm before the circuit court,
       states in paragraph 4 of the decision that “[o]n or before 01/15/2007 the Parties entered into
       a written agreement to arbitrate their dispute.” While the “before” portion is undoubtedly
       accurate, it does nothing to confirm that an “agreement” to arbitrate between the parties
       existed prior to Tyler’s last use of the MBNA credit card. See FIA Card Services, 2010-1372,
       at 14 (La. 3/15/11); 62 So. 3d 709, 718 (“It is undisputed that the original agreement between
       [credit card holder] and MBNA contains no arbitration clause.”). Further, the allegation that
       Asset purchased Tyler’s credit card debt from MBNA supports the conclusion that no written
       agreement to arbitrate ever existed between Asset and Tyler, contrary to the assertion in
       paragraph 4 of the written arbitration decision. Rather, to the extent a written agreement to
       arbitrate existed, the agreement must have been between MBNA and Tyler, and it is
       reasonable to conclude that MBNA never appeared before the NAF to provide information
       regarding when the arbitration agreement was entered into. It is also reasonable to conclude
       that Asset’s demand for arbitration, which it filed on January 15, 2007, means Asset was
       assigned Tyler’s MBNA credit card debt sometime before that date, rendering meaningless
       the assertion in the award that the parties entered into an agreement to arbitrate on or before
       January 15, 2007.
¶ 52       The streamlined proceedings provided in the FAA to favor resolution of disputes by
       arbitration work in both directions. See Hubble, 238 Ill. 2d at 268 (in construing a statute,
       “a court may properly consider *** the purpose and necessity for the law”). A defendant is
       limited to the challenges in sections 10 and 11 to seek a vacatur of an arbitration award. See
       Ottley, 819 F.2d at 377; Booth, 902 F.2d at 931. Similarly, a plaintiff seeking to confirm an
       arbitration award before the circuit court must comply with the relatively simple
       requirements of section 13 that it file with its motion to confirm “the agreement” and “the
       award” with the court. 9 U.S.C. § 13 (2006); FIA Card Services, 2010-1372 (La. 3/15/11);
       62 So. 3d 709; MBNA America Bank, N.A. v. Credit, 132 P.3d 898, (Kan. 2006); Yates v.
       CACV of Colorado, LLC, 693 S.E.2d 629, 634 (Ga. Ct. App. 2010) (the plaintiff failed to
       meet its “burden of proving the existence of such a valid and enforceable agreement [to
       arbitrate]”). The interpretation of federal law by state courts may guide our interpretation of
       that same law. See Hubble, 238 Ill. 2d at 271-72 (the decisions of both federal and state
       courts interpreting the same federal law offer guidance).
¶ 53       We agree with the decision of the Louisiana Supreme Court that it is only upon the

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       presentation of both papers required by section 13 that a prima facie case is established to
       permit confirmation of an arbitration award. FIA Card Services, 2010-1372 (La. 3/15/11);
       62 So. 3d 709. Though it would seem a simple matter to present the underlying arbitration
       agreement, cases do arise, just as in the case before us, where the existence of such an
       agreement is called into question. See MBNA America Bank, 132 P.3d at 902 (“[A] national
       trend [has arisen] in which consumers are questioning MBNA and whether arbitration
       agreements exist. [Citations.]”).
¶ 54        In MBNA American Bank, the Kansas Supreme Court reached a result similar to the
       decision by the Louisiana Supreme Court. The Kansas high court concluded that the
       plaintiff’s motion to confirm an arbitration award failed to meet its evidentiary burden. The
       court stated that MBNA’s failure to attach a copy of the arbitration agreement alone “would
       have justified the district court in its decision to deny MBNA’s motion to confirm the
       award.” Id. at 901.
¶ 55        As the plaintiff in the proceeding before the circuit court to confirm the arbitration award,
       Asset bore the burden to make a prima facie case. See Morrison, 308 Ill. at 195 (it is the
       plaintiff’s evidence that establishes a prima facie case). We cannot agree with Asset’s claim
       that the award itself may satisfy this burden. To so rule would render the clear and
       unequivocal language in section 13 of the FAA that two papers be submitted with a motion
       to confirm an arbitration award meaningless. See State Building Venture v. O’Donnell, 239
       Ill. 2d 151, 160 (2010) (statute should be construed so that no term is rendered “meaningless
       or superfluous”). Not surprisingly, Asset has presented us with no authority that both
       requirements under section 13 may be satisfied by submission of the written arbitration
       decision itself.
¶ 56        Nor do we agree with any suggestion that the affidavit attached to Asset’s complaint was
       an adequate substitute for the requisite documentary showing under section 13 to confirm the
       arbitration award. See Velocity, 397 Ill. App. 3d at 299 (citing 735 ILCS 5/2-606 (West
       2006)) (affidavit in record did not satisfy the requirement that the written contract be
       presented).
¶ 57        On the record before us, Asset failed to satisfy its burden to establish a prima facie case
       to confirm the arbitration award. Under section 13 of the FAA, Asset was required to file its
       motion to confirm with the written agreement to arbitrate that purportedly existed between
       MBNA and Tyler, along with the written arbitration decision. Absent the arbitration
       agreement, Asset was not entitled to a confirmation of the arbitration award it received
       against Tyler. The circuit court erred in confirming the arbitration award.
¶ 58        In light of our holding, we do not reach Tyler’s claim that he could contest the very
       existence of an arbitration agreement with MBNA and its successor Asset in the course of
       a proceeding to confirm the arbitration award. See MCI Telecommunications Corp., 138 F.3d
       at 430 (“no indication that Congress intended for a party to be found to have waived the
       argument that there was no written agreement to arbitrate if that party failed to raise the
       argument within the time period established by section 12 [of the FAA]”).




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¶ 59                                      CONCLUSION
¶ 60       Tyler forfeited his claim that the arbitration proceedings before the NAF were a fraud
       when he failed to assert that claim within the time limits of the FAA. Tyler’s five-count
       counterclaim was properly dismissed where the counterclaims were not subject to
       adjudication in a proceeding to confirm the arbitration award. The circuit court erred,
       however, in granting Asset’s motion to confirm the arbitration award because Asset failed
       to make out a prima facie case under section 13 of the FAA, which directs that the written
       agreement to arbitrate between the parties be filed, a simple yet necessary requirement. We
       reverse the circuit court’s order confirming the arbitration award.

¶ 61      Affirmed in part and reversed in part.




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