Preview
FILED
4/9/2020 5:42PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE N0 DC-19—16012
KIRK ALEXANDER, 1N THE DISTRICT COURT
Plaintiff,
V
WWWWWWWWWW
lOIST JUDICIAL DISTRICT COURT
FREEDOM DEBT RELIEF, LLC
Defendant,
DALLAS COUNTY, TEXAS
DEFENDANT’S MOTION TO COMPEL ARBITRATION
AND ABATE LITIGATION
Defendant Freedom Debt Relief, LLC (“FDR” 0r “Defendant”) asks the Court t0 order
arbitration and stay this lawsuit.
I. INTRODUCTION
1. On October 1, 2019, Plaintiff, Kirk Alexander, sued Defendant for breach 0f
contract, fraudulent inducement, deceptive trade practices, and conversion.
2. On January 14, 2020, Defendant filed itsOriginal Answer t0 Plaintiff’s Original
Petition generally denying each 0f Plaintiff” s claims.
3. Discovery in this case is being conducted under a Level 1 Discovery Control Plan.
Trial is currently set for July 7, 2020. T0 date, n0 discovery has been conductedl
II. BACKGROUND
4. This dispute arises out 0f Plaintiff’s execution 0f an agreement with Defendant for
debt relief services related t0 Plaintiff” s unsecured credit balances (the “Agreement”). A true and
correct copy 0f the agreement has been attached as Exhibit A and incorporated by reference.
lDefendant served Request for Disclosure to Plaintiff along with itsOriginalAnswer on January 14,2020, which
responses were due on February 13, 2020. Plaintiff failed to respond.
DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 1
5. In connection with the Agreement, the parties agreed that any dispute “arising out
0f 0r in any way relating t0 the Agreement” would be resolved through binding arbitration (the
“Arbitration Provision”). See Exhibit A at 10.
6. The Arbitration Provision, as part 0f the Agreement, was made in consideration 0f
Defendant’s agreement and assent t0 the other terms 0f the Agreement. Defendant has fully
performed all 0f its duties under the Agreement, including providing proper notice as required
under the Arbitration Provision (see Exhibit A at 10 1]2), attached hereto as Exhibit B.
7. This dispute is subject t0 the Arbitration Provision, which is governed by the
Federal Arbitration Act. See Exhibit A at 10 1]
4. Plaintiff’s initiation 0f this lawsuit against
Defendant in this Court ignores the effect and intent 0f the Arbitration Provision, which was signed
and accepted by Plaintiff. Defendant now asks the Court t0 compel Plaintiff’s compliance with
the Arbitration Provision in accordance with its terms.
III. ARGUMENT & AUTHORITIES
8. A party seeking t0 compel arbitration must establish that (1) there is a valid
agreement t0 arbitrate, and (2) the claims raised are within the scope 0f the agreement t0 arbitrate.
See 9 U.S.C. §§ 2, 4; In re D. Wilson Constr. C0., 196 S.W.3d 774, 781 (TeX. 2006);
In re Oakwood Mobile Homes, Ina, 987 S.W.2d 571, 573 (Tex. 1999).
9. The Arbitration Provision isvalid because itwas voluntarily signed by Plaintiff and
meets allrequirements 0f a valid contract.
10. Plaintiff’s claims are within the scope 0f the Arbitration Provision because it
encompasses all claims “arising out 0f 0r in any way relating t0 the Agreement 0r the breach,
termination, enforcement, interpretation 0r validity” thereof. See Exhibit A at 10 1]
1.
1 1. When a court orders the parties t0 arbitration, it must abate the proceedings pending
the outcome 0f the arbitration. 9 U.S.C. § 3.
DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 2
IV. PRAYER
12. WHEREFORE PREMISES CONSDIERED, Defendant respectfully prays that its
Motion to Compel Arbitration and Abate Litigation be granted; that the Arbitration Provision
shown in Exhibit A be enforced according to its terms; that the Court enter an Order Compelling
Arbitration and Abating Litigation in the form submitted contemporaneously herewith; and that
the Court grant Defendant any such filrther legal or equitable relief to Which it may be justly
entitled.
Dated: April 9, 2020 Respectfully submitted,
/s/ Kelsey M. Taylor
DOUGLAS S. LANG
State Bar N0. 11895500
lan .dou dorse .com
KELSEY M. TAYLOR
State Bar No. 24098507
tavlor.kelsev@dorsev.com
DORSEY & WHITNEY LLP
300 Crescent Court, Suite 400
Dallas, Texas 75201
214.981.9900 (main)
214.981 .9901 (fax)
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on, April 9, 2020, a true and correct copy 0fthe foregoing
instrument was served on all counsel 0f record Via the Court’s electronic filing system.
/s/Kelsev M. Taylor
Kelsey M. Taylor
DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 3
CERTIFICATE OF CONFERENCE
Counsel for movant and counsel for respondent have personally conducted a telephone
conference on April 9, 2020, at Which there was a substantive discussion 0f every item presented to
the Court in this motion and despite best efforts the counsel have not been able t0 resolve the matters
presented.
Certified on the Day 0f April 9, 2020.
/s/ Kelsey M Taylor
Kelsey M. Taylor
DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 4
DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FSBD69E037D
M
freedom
D'E‘e T R E'LIE ‘I'I
Prepared For:
Prepared By:
Kirk ALEXANDER
Tyler Deterville
Debt Resolution Agreement
Kirk's Estimated*
Debt Resolution Comparison
Freedom Debt Relief,LLC $34,51 6—$38, 149
Debt Consolidation $62,782
Credit Counseling $60,368
Minimum Payments $134,354
Total Enrolled Debt: $48,294
Monthly Draft: $776
Estimated Debt Payoff: $34,516-$38.149
who make all their monthly program payments pay approximately 50% of their enrolled balance before fees, or 71% including fees (note, fees
*Clients
may vary by state or by debt amount), over 24 to 48 months. Not all clients are able to complete our program for various reasons, including their ability to
save Our estimates are based on prior results, which will vary depending on your specific circumstances. We do not guarantee that your
sufficient funds.
debts be resolved
will for a specific amount or percentage or within a specific period of time. We do not assume your debts, make monthly payments
to creditors or provide tax, bankruptcy, accounting or legal advice or credit repair services. Our service is not available in all states and our fees may
vary from state to state. Please contact a tax professional to discuss potential tax consequences of less than full balance debt resolution. Read and
understand
allprogram materials example, potential adverse impact on credit
prior to enrollment, including, for rating.
EXHIBIT A
DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FBBD69EO37D
contact information, (iv)fillout and return within five (5)
Freedom Debt Relief, LLC business days any and alldocuments we may reasonably
4940 S. Wendler Dr., Tempe, AZ 85282 request, (v) notify us promptly ifyou receive a settlement
Office: (877) 437-4999 Fax: (866) 559-3178 offer directly from a Creditor and (vi) consider promptly and
in good faithour recommendations regarding any proposed
Debt Resolution Agreement settlement offer.
This Debt Resolution Agreement, along with each of the A. Program Deposits: Beginning on March 09,
documents referenced in the subsection entitled 2015, you will deposit $776 per month (or every 28 days
"Documents Incorporated by Reference" in Section 7, for clients electing the bi-weekly deposit option) from your
(collectively the "Agreement"), is made by and between primary bank account into a dedicated bank account or such
Freedom Debt Relief, LLC, a Delaware limited liability other bank account as you may designate ("Settlement
company ("we," "us" or "our")and Kirk ALEXANDER ("you" Account"). The Settlement Account shall be for the exclusive
or "your") residing at 2226 Meadow Ln., Garland, TX, purpose of accumulating funds for settlements and for the
75040. This Agreement will not be effective until we receive payment of our fees. You will,at alltimes, own and control
from you a signed (or initialed) copy of each required the Settlement Account, the account terms and conditions
document ("Effective Date"). You may sign or initial manually of which will be set forth ina separate agreement between
or electronically. you and your bank. Fees and other charges associated with
your Settlement Account are payable only to your bank or
1. Our Guarantee: We will not charge any fee for our the payment processor and are not to be considered part 0f
services until we successfully resolve a debt for you and you the fee charged by us for the settlement of your debts.
have made a payment toward the settlement of that debt.
When one of your debts is resolved, we will charge you only
the fee associated with that debt at that time. Our fees are
described in more detail inSection 5, below.
2. Our Responsibilities: We will work in good faith to
resolve each of the debts listed on Exhibit A (individually
a "Debt" and collectively the "Debts") by negotiating
settlements with your creditors (individually a "Creditor" and
collectively the "Creditors"; as used herein, the terms
By your execution of this Agreement, you are
"Creditor" or "Creditors" shall include any assignee or
acknowledging that it is your responsibility to set aside
successor in interest toany Creditor). We believe that each
sufficient funds in your Settlement Account, on a
Creditor listed 0n Exhibit A will work with us to negotiate a
regular basis, to enable us to negotiate settlement offers
settlement of your Debts.
on your behalf. Unless we can demonstrate to a Creditor
that you have sufficient funds available in your
A. Program Progress: We wi|| keep you reasonably
informed of our efforts on behalf and advise we Settlement Account to make a settlement payment, we
your you if
become aware ofany significantchanges inCreditor policies
may not be able to negotiate settlement offers for you.
or other factors that may materially affect any good faith
B. Your Representations, Agreements &
estimates made by us with respect to the timing or amount
Acknowledgements: By your execution of this Agreement,
of any settlement. We willrespond promptly toyour inquiries
you are representing to us, and acknowledging your
and communications.
understanding of,the following matters.
B. Program Length: While we have estimated a
1i)Unsecured Debt Only: Each of the Debts
program length of 46 months that we believe isappropriate
isan unsecured debt owed by you to the Creditor, and
t0 fully resolve your Debts, the actual length of your program
(subject to Section 5(A), below) in the amount, listed on
willdepend upon your ongoing ability to make your program
Exhibit A and is your sole obligation and responsibility. You
deposits, as described in more detail inSection 3, below,
further acknowledge that we wi|| not assume 0r pay any
your Creditors' willingness t0 settle your Debts and the
Debt, attempt to extend the time you may have to pay any
length of any structured settlement of a Debt that we may
Creditor or otherwise attempt to modify the terms of any
obtain for you.
existing obligation.
3. Your Responsibilities: You will (i) respond promptly,
ii No Additional Char es- Additional Debt
truthfully and cooperatively to any inquiry or request we
Not Covered By This Agreement: Any additional charges
may make of you, (ii)assist us inverifying the information
you may make after the Effective Date on any Debt will
associated with any Debt, including but not limited to
impair our ability to secure settlement offers; accordingly,
account numbers, creditor identity and amount owed on
you agree not to incur any further charges on any Debt
the Effective Date, (iii)notifyus promptly of any change of
after the Effective Date. This Agreement covers only the
your telephone number, e-mail or physical address or other
TYD-2628962—91 2843/TX-1 204 1 4 Page 2 of 19
@
DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FSBD69E037D
obligations listed inExhibit A; the enrollment or resolution of remain in effect until you no longer have an ongoing
additional debts or debts arising after the Effective Date will relationship with us.
require a separate agreement.
4. Settlement of Your Debts:
A. Timinq and Amount of Settlement Offers: We
verifiable state of financial hardship and are unable t0 pay begin contacting your Creditors as soon as we determine
or continue to pay their minimum monthly payments t0 that a good faith offer to settle a given debt, whether on
Creditors without severe financial hardship. By your a lump-sum or installment basis, may be made, with such
execution of this Agreement you are confirming the truth determinations dependent upon such factors as the
and accuracy of all financial information you have furnished Creditor's settlement policies, the rate 0f account accretion,
t0 us, and confirming that you have considered other ways the size of each Debt and how close a Debt may be to
of dealing with your debt, including, for example, credit charge-off. Some Creditors prefer that they not be contacted
counseling or bankruptcy. until you have accumulated sufficient funds in your
Settlement Account to allow a negotiated resolution within
(iv) Effects of Participation in a Debt their historicnorms. While settlement guidelines differwidely
Resolution Program: Failing to make your minimum among Creditors, an accumulation of 25% of the then-
monthly payments to your Creditors (a) wi|| negatively affect current balance of a Debt will normally enable us to make a
your creditworthiness, (b) may result in "unpaid," "late," good-faith offer to settle that Debt.
"uncollected" 0r "charged-off“ entries on your credit
report(s), (c) may cause the amount of a Debt to increase B. Completina Settlement Offers: The negotiations
due to the assessment of additional interestand late and process isintensive and we often make several offers before
other fees and (d) could result inongoing collection efforts we are able to secure an appropriate settlement opportunity.
and, possibly, legal action.A Creditor may notify the Internal Immediately following the negotiation of an appropriate
Revenue Service of any forgiveness of some or all of a Debt, settlement offer, we willcontact you and inform you of the
and the amount of such forgiveness may be taxable income terms of the proposed settlement and ask that you confirm
to you. your acceptance to us. A|| settlement offers must be
specifically accepted by you before we can accept any
payment of fees from your Settlement Account.
AFTER YOU RECEIVE NOTICE FROM US, YOU MUST
PROMPTLY CONFIRM YOUR APPROVAL OF THE
SETTLEMENT OFFER.
C. Program Estimates: Based upon both our
experience in working with your Creditors as well as your
personal financial circumstances, we have made a good
C. Exclusions & Limitations: YOU UNDERSTAND program and
faith estimate that your length your monthly
AND ACKNOWLEDGE THAT WE DO NOT PROVIDE
program deposit requirements will be sufficient to enable us
LEGAL, TAX, BANKRUPTCY, ACCOUNTING OR negotiate settlements each however
to for of your Debts;
INVESTMENT ADVICE. You further understand and
your actual results may vary. Although we will use
acknowledge that we (i) will not be making periodic
reasonable efforts to negotiate a settlement offer from each
payments t0 any Creditor, make
(ii) n0 claim that our debt
of your Creditors, we cannot make promises or warranties
resolution program will improve your credit rating or that we
as to the outcome 0f our efforts or the time that it may take
will attempt to modify, correct or remove any reference or
us to resolve your Debts.
entry on your credit report(s), (iii)cannot advise or assist
you in the modification, improvement or correction of any 5. Fees: We do not charge or collect any fee for our
reference or other entry contained in any credit report and
settlement services unless and untila Debt issuccessfully
(iv)have not represented that we can stop collection phone
resolved. When we negotiate a proposed settlement 0f a
calls or other creditorcommunications.
Debt and you make a payment toward settlement 0f that
Debt, we charge and are entitled to collect 21% of the
D. Authorization to Review Consumer Credit
enrollment amount of that Debt, as reflected on Exhibit A.
Report Information: By your execution, below, you hereby
On an annualized basis, ifwe settle your debts over the
authorize and instruct us t0 obtain one or more credit reports
estimated 46 month program life, your fee would work out to
about you from any consumer reporting agency (often called
be approximately 5.5% of your enrolled debt per year.
a "credit bureau") for the purpose of performing the debt
reliefservices described herein, including reviewing the way Although the settlement offers we negotiate may have terms
that your creditors have reported your debts and your
that require a single payment (for example, a $1,000 lump
settlements to the credit bureaus. This authorization shall
sum payment to settle a $3,000 account) or that require
a number of payments (for example, payments of $1,000
TYD-2628962—91 2843/TX-1 204 1 4 Page 3 of 19
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DocuSign Envelope
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similar
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make
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and
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7.
governed
or
W
Additional
required by
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the
by and
principles.
state, any claim
law
Unless otherwise set
0f your
construed
or dispute
state,
in
this
accordance with
required
must be
by
forth herein or
Agreement
the
resolved
the
by
shall
laws
be
the state of Arizona, excluding any conflicts of law provisions
Unless otherwise law
of
of your
a court
only after you have accumulated sufficient funds in your located in Maricopa County, Arizona, and the parties agree
Settlement Account to pay both the negotiated amount of the to submit to the personal jurisdiction of the courts located
settlement and the full amount 0f the fee associated with that within Maricopa County, Arizona for the purpose of litigating
Debt. Similarly, in order to secure a beneficial settlement all such claims or disputes.
of a Debt for you, we may elect to spread our fee over
time ifsufficientfunds are not available inyour Settlement No Power of Attornev Conferred: We shall at all
Account. In cases where our fees are paid in more than one times act 0n your behalf as an independent contractor and
installment, we do not assess any interest0r other finance not as attorney-in-fact.We shall not have any authority to
charge on balances owing. Our fees, once earned, willbe contract for or bind you other than as expressly set forth
paid to us via electronic debit or check by phone from your herein or inthe Authorization to Communicate with Creditors
Settlement Account, as authorized by you in the Direct Debit and Collection Agencies, attached to this Agreement as
Authorization, attached hereto as Exhibit B, and are non- Exhibit C.
refundable.
Severability; Waiver: If any provision of this
A. Verifvinq Your Debt Balance: If you have Agreement is found to be invalid or unenforceable, the
completed Exhibit A based on one or more credit card remainder of this Agreement shall not be affected and the
statements dated prior to the Effective Date, or based on remaining terms will continue in effect and be binding on
no credit card statements at all,Exhibit A may not reflect the parties, provided that such holding of invalidity or
the actual amount owed to each of your Creditors. We may, unenforceability does not materially affect the essence of
from time t0 time, contact some 0r allof your Creditors this Agreement. The failure of either 0f us at any time to
to ascertain the exact amount owed to such Creditor(s) as enforce any provision 0f or any right under this Agreement
of the Effective Date. Ifwe substantiate that the amount will in no way be construed to be a waiver of such provisions
actually owed t0 any Creditor on the Effective Date differs or rights, nor shall the failure of either of us to exercise any
from the amount set forth on Exhibit A, Exhibit A shall be rights or options under this Agreement preclude or prejudice
deemed restated with your consent as of the Effective Date, the exercising of the same or any other right under this
with any corrected amount(s) controlling forall purposes. Agreement or in any way affect the validity of this
Agreement.
6. Withdrawal from the Program; Termination of this
Agreement: You may terminate this Agreement and Notice: Any notice 0r demand which is required or
withdraw from your debt resolution program at any time, provided to be given under this Agreement shall be deemed
without any termination fee or other penalty, by providing us to have been sufficiently given and received for allpurposes
with written notice of termination (which may be electronic). when delivered by hand or nationally recognized overnight
Our fees that are earned but remain unpaid,
right to collect in courier, or fivedays after being sent by certified or registered
whole or in part, for any reason wi||survive any termination mail,postage and charges prepaid, return receipt requested,
of this Agreement. to the person and at the address given in the first paragraph
of this Agreement.
We must receive your notice at least five (5) business days
prior to any scheduled electronic funds transfer inorder to Assignment: You may not assign or transfer any of
enable us to issue cancellation instructions to your bank. your rights or obligations under this Agreement, and any
Subject t0 our verification 0f your identity, we may, in our attempt to assign or transfer such rights or obligations will be
sole discretion, accept a verbal termination notice. A|| null and void. We may assign this Agreement without your
authorizations to communicate with your Creditors and any consent to (i)any parent, subsidiary or affiliateof ours, (ii)
other authorizations we may have to act on your behalf will an acquirer of all or substantially all of our assets or a
(iii)
be revoked and ineffective immediately upon termination. successor to us by merger.
In the event that you fail to make any payment required Insurance: We maintain the requisite surety bond or
by this Agreement, failto approve a settlement that we insurance to cover consumer claims as required by Texas
believe, in good faith, isin your best interests or otherwise law.
failto discharge any of your obligations, we have the right
to terminate this Agreement with five (5) days' written notice
(which may be electronic) to you, without any further
obligation 0f any sort.
TYD-2628962—91 2843/TX-1 204 1 4 Page 4 of 19
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DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FSBD69EO37D
aforementioned documents, as if each of them had been set
O forth herein intheir entirety. Please print and save a copy
of this Agreement and allexhibits and attachments for your
,—
records.
Complete Agreement; Modification &
Amendment: This Agreement represents our complete and
kn exclusive
supersedes
statement
communications
all
of
previous
relating
our mutual
written
to the
and
understandings
oral
provision
agreements
of any
and
and
service(s).
D mn lnrr Rfrn:The Other than as set forth herein, including but not limited to any
following documents are hereby incorporated herein by amendment provided for by Section 5(A), this Agreement
reference as part 0f thisAgreement: (i)Exhibit A (listingof may only be modified or amended by a writing signed by
Debts covered by this Agreement and Creditors to which the both of us, provided, however, that we may change any
Debts are owed); (ii)Exhibit B (Direct Debit Authorization); term of this Agreement, or add any additional term t0 this
Exhibit C
(iii) (Authorization to Communicate with Creditors Agreement, by providing you with fifteen (15) days' advance
and Collection Agencies); (iv)Exhibit D (Dispute Resolution written notice of such change. If youdecline to accept such
Procedures); (v) Exhibit E (Client Financial Analysis); and change, your sole and exclusive remedy wi|| be to terminate
(vi)the AFCC Disclosure Statement
Preview
FILED 4/9/2020 5:42PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE N0 DC-19—16012 KIRK ALEXANDER, 1N THE DISTRICT COURT Plaintiff, V WWWWWWWWWW lOIST JUDICIAL DISTRICT COURT FREEDOM DEBT RELIEF, LLC Defendant, DALLAS COUNTY, TEXAS DEFENDANT’S MOTION TO COMPEL ARBITRATION AND ABATE LITIGATION Defendant Freedom Debt Relief, LLC (“FDR” 0r “Defendant”) asks the Court t0 order arbitration and stay this lawsuit. I. INTRODUCTION 1. On October 1, 2019, Plaintiff, Kirk Alexander, sued Defendant for breach 0f contract, fraudulent inducement, deceptive trade practices, and conversion. 2. On January 14, 2020, Defendant filed itsOriginal Answer t0 Plaintiff’s Original Petition generally denying each 0f Plaintiff” s claims. 3. Discovery in this case is being conducted under a Level 1 Discovery Control Plan. Trial is currently set for July 7, 2020. T0 date, n0 discovery has been conductedl II. BACKGROUND 4. This dispute arises out 0f Plaintiff’s execution 0f an agreement with Defendant for debt relief services related t0 Plaintiff” s unsecured credit balances (the “Agreement”). A true and correct copy 0f the agreement has been attached as Exhibit A and incorporated by reference. lDefendant served Request for Disclosure to Plaintiff along with itsOriginalAnswer on January 14,2020, which responses were due on February 13, 2020. Plaintiff failed to respond. DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 1 5. In connection with the Agreement, the parties agreed that any dispute “arising out 0f 0r in any way relating t0 the Agreement” would be resolved through binding arbitration (the “Arbitration Provision”). See Exhibit A at 10. 6. The Arbitration Provision, as part 0f the Agreement, was made in consideration 0f Defendant’s agreement and assent t0 the other terms 0f the Agreement. Defendant has fully performed all 0f its duties under the Agreement, including providing proper notice as required under the Arbitration Provision (see Exhibit A at 10 1]2), attached hereto as Exhibit B. 7. This dispute is subject t0 the Arbitration Provision, which is governed by the Federal Arbitration Act. See Exhibit A at 10 1] 4. Plaintiff’s initiation 0f this lawsuit against Defendant in this Court ignores the effect and intent 0f the Arbitration Provision, which was signed and accepted by Plaintiff. Defendant now asks the Court t0 compel Plaintiff’s compliance with the Arbitration Provision in accordance with its terms. III. ARGUMENT & AUTHORITIES 8. A party seeking t0 compel arbitration must establish that (1) there is a valid agreement t0 arbitrate, and (2) the claims raised are within the scope 0f the agreement t0 arbitrate. See 9 U.S.C. §§ 2, 4; In re D. Wilson Constr. C0., 196 S.W.3d 774, 781 (TeX. 2006); In re Oakwood Mobile Homes, Ina, 987 S.W.2d 571, 573 (Tex. 1999). 9. The Arbitration Provision isvalid because itwas voluntarily signed by Plaintiff and meets allrequirements 0f a valid contract. 10. Plaintiff’s claims are within the scope 0f the Arbitration Provision because it encompasses all claims “arising out 0f 0r in any way relating t0 the Agreement 0r the breach, termination, enforcement, interpretation 0r validity” thereof. See Exhibit A at 10 1] 1. 1 1. When a court orders the parties t0 arbitration, it must abate the proceedings pending the outcome 0f the arbitration. 9 U.S.C. § 3. DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 2 IV. PRAYER 12. WHEREFORE PREMISES CONSDIERED, Defendant respectfully prays that its Motion to Compel Arbitration and Abate Litigation be granted; that the Arbitration Provision shown in Exhibit A be enforced according to its terms; that the Court enter an Order Compelling Arbitration and Abating Litigation in the form submitted contemporaneously herewith; and that the Court grant Defendant any such filrther legal or equitable relief to Which it may be justly entitled. Dated: April 9, 2020 Respectfully submitted, /s/ Kelsey M. Taylor DOUGLAS S. LANG State Bar N0. 11895500 lan .dou dorse .com KELSEY M. TAYLOR State Bar No. 24098507 tavlor.kelsev@dorsev.com DORSEY & WHITNEY LLP 300 Crescent Court, Suite 400 Dallas, Texas 75201 214.981.9900 (main) 214.981 .9901 (fax) ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that on, April 9, 2020, a true and correct copy 0fthe foregoing instrument was served on all counsel 0f record Via the Court’s electronic filing system. /s/Kelsev M. Taylor Kelsey M. Taylor DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 3 CERTIFICATE OF CONFERENCE Counsel for movant and counsel for respondent have personally conducted a telephone conference on April 9, 2020, at Which there was a substantive discussion 0f every item presented to the Court in this motion and despite best efforts the counsel have not been able t0 resolve the matters presented. Certified on the Day 0f April 9, 2020. /s/ Kelsey M Taylor Kelsey M. Taylor DEFENDANT’S MOTION T0 COMPEL ARBITRATION AND ABATE LITIGATION PAGE 4 DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FSBD69E037D M freedom D'E‘e T R E'LIE ‘I'I Prepared For: Prepared By: Kirk ALEXANDER Tyler Deterville Debt Resolution Agreement Kirk's Estimated* Debt Resolution Comparison Freedom Debt Relief,LLC $34,51 6—$38, 149 Debt Consolidation $62,782 Credit Counseling $60,368 Minimum Payments $134,354 Total Enrolled Debt: $48,294 Monthly Draft: $776 Estimated Debt Payoff: $34,516-$38.149 who make all their monthly program payments pay approximately 50% of their enrolled balance before fees, or 71% including fees (note, fees *Clients may vary by state or by debt amount), over 24 to 48 months. Not all clients are able to complete our program for various reasons, including their ability to save Our estimates are based on prior results, which will vary depending on your specific circumstances. We do not guarantee that your sufficient funds. debts be resolved will for a specific amount or percentage or within a specific period of time. We do not assume your debts, make monthly payments to creditors or provide tax, bankruptcy, accounting or legal advice or credit repair services. Our service is not available in all states and our fees may vary from state to state. Please contact a tax professional to discuss potential tax consequences of less than full balance debt resolution. Read and understand allprogram materials example, potential adverse impact on credit prior to enrollment, including, for rating. EXHIBIT A DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FBBD69EO37D contact information, (iv)fillout and return within five (5) Freedom Debt Relief, LLC business days any and alldocuments we may reasonably 4940 S. Wendler Dr., Tempe, AZ 85282 request, (v) notify us promptly ifyou receive a settlement Office: (877) 437-4999 Fax: (866) 559-3178 offer directly from a Creditor and (vi) consider promptly and in good faithour recommendations regarding any proposed Debt Resolution Agreement settlement offer. This Debt Resolution Agreement, along with each of the A. Program Deposits: Beginning on March 09, documents referenced in the subsection entitled 2015, you will deposit $776 per month (or every 28 days "Documents Incorporated by Reference" in Section 7, for clients electing the bi-weekly deposit option) from your (collectively the "Agreement"), is made by and between primary bank account into a dedicated bank account or such Freedom Debt Relief, LLC, a Delaware limited liability other bank account as you may designate ("Settlement company ("we," "us" or "our")and Kirk ALEXANDER ("you" Account"). The Settlement Account shall be for the exclusive or "your") residing at 2226 Meadow Ln., Garland, TX, purpose of accumulating funds for settlements and for the 75040. This Agreement will not be effective until we receive payment of our fees. You will,at alltimes, own and control from you a signed (or initialed) copy of each required the Settlement Account, the account terms and conditions document ("Effective Date"). You may sign or initial manually of which will be set forth ina separate agreement between or electronically. you and your bank. Fees and other charges associated with your Settlement Account are payable only to your bank or 1. Our Guarantee: We will not charge any fee for our the payment processor and are not to be considered part 0f services until we successfully resolve a debt for you and you the fee charged by us for the settlement of your debts. have made a payment toward the settlement of that debt. When one of your debts is resolved, we will charge you only the fee associated with that debt at that time. Our fees are described in more detail inSection 5, below. 2. Our Responsibilities: We will work in good faith to resolve each of the debts listed on Exhibit A (individually a "Debt" and collectively the "Debts") by negotiating settlements with your creditors (individually a "Creditor" and collectively the "Creditors"; as used herein, the terms By your execution of this Agreement, you are "Creditor" or "Creditors" shall include any assignee or acknowledging that it is your responsibility to set aside successor in interest toany Creditor). We believe that each sufficient funds in your Settlement Account, on a Creditor listed 0n Exhibit A will work with us to negotiate a regular basis, to enable us to negotiate settlement offers settlement of your Debts. on your behalf. Unless we can demonstrate to a Creditor that you have sufficient funds available in your A. Program Progress: We wi|| keep you reasonably informed of our efforts on behalf and advise we Settlement Account to make a settlement payment, we your you if become aware ofany significantchanges inCreditor policies may not be able to negotiate settlement offers for you. or other factors that may materially affect any good faith B. Your Representations, Agreements & estimates made by us with respect to the timing or amount Acknowledgements: By your execution of this Agreement, of any settlement. We willrespond promptly toyour inquiries you are representing to us, and acknowledging your and communications. understanding of,the following matters. B. Program Length: While we have estimated a 1i)Unsecured Debt Only: Each of the Debts program length of 46 months that we believe isappropriate isan unsecured debt owed by you to the Creditor, and t0 fully resolve your Debts, the actual length of your program (subject to Section 5(A), below) in the amount, listed on willdepend upon your ongoing ability to make your program Exhibit A and is your sole obligation and responsibility. You deposits, as described in more detail inSection 3, below, further acknowledge that we wi|| not assume 0r pay any your Creditors' willingness t0 settle your Debts and the Debt, attempt to extend the time you may have to pay any length of any structured settlement of a Debt that we may Creditor or otherwise attempt to modify the terms of any obtain for you. existing obligation. 3. Your Responsibilities: You will (i) respond promptly, ii No Additional Char es- Additional Debt truthfully and cooperatively to any inquiry or request we Not Covered By This Agreement: Any additional charges may make of you, (ii)assist us inverifying the information you may make after the Effective Date on any Debt will associated with any Debt, including but not limited to impair our ability to secure settlement offers; accordingly, account numbers, creditor identity and amount owed on you agree not to incur any further charges on any Debt the Effective Date, (iii)notifyus promptly of any change of after the Effective Date. This Agreement covers only the your telephone number, e-mail or physical address or other TYD-2628962—91 2843/TX-1 204 1 4 Page 2 of 19 @ DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FSBD69E037D obligations listed inExhibit A; the enrollment or resolution of remain in effect until you no longer have an ongoing additional debts or debts arising after the Effective Date will relationship with us. require a separate agreement. 4. Settlement of Your Debts: A. Timinq and Amount of Settlement Offers: We verifiable state of financial hardship and are unable t0 pay begin contacting your Creditors as soon as we determine or continue to pay their minimum monthly payments t0 that a good faith offer to settle a given debt, whether on Creditors without severe financial hardship. By your a lump-sum or installment basis, may be made, with such execution of this Agreement you are confirming the truth determinations dependent upon such factors as the and accuracy of all financial information you have furnished Creditor's settlement policies, the rate 0f account accretion, t0 us, and confirming that you have considered other ways the size of each Debt and how close a Debt may be to of dealing with your debt, including, for example, credit charge-off. Some Creditors prefer that they not be contacted counseling or bankruptcy. until you have accumulated sufficient funds in your Settlement Account to allow a negotiated resolution within (iv) Effects of Participation in a Debt their historicnorms. While settlement guidelines differwidely Resolution Program: Failing to make your minimum among Creditors, an accumulation of 25% of the then- monthly payments to your Creditors (a) wi|| negatively affect current balance of a Debt will normally enable us to make a your creditworthiness, (b) may result in "unpaid," "late," good-faith offer to settle that Debt. "uncollected" 0r "charged-off“ entries on your credit report(s), (c) may cause the amount of a Debt to increase B. Completina Settlement Offers: The negotiations due to the assessment of additional interestand late and process isintensive and we often make several offers before other fees and (d) could result inongoing collection efforts we are able to secure an appropriate settlement opportunity. and, possibly, legal action.A Creditor may notify the Internal Immediately following the negotiation of an appropriate Revenue Service of any forgiveness of some or all of a Debt, settlement offer, we willcontact you and inform you of the and the amount of such forgiveness may be taxable income terms of the proposed settlement and ask that you confirm to you. your acceptance to us. A|| settlement offers must be specifically accepted by you before we can accept any payment of fees from your Settlement Account. AFTER YOU RECEIVE NOTICE FROM US, YOU MUST PROMPTLY CONFIRM YOUR APPROVAL OF THE SETTLEMENT OFFER. C. Program Estimates: Based upon both our experience in working with your Creditors as well as your personal financial circumstances, we have made a good C. Exclusions & Limitations: YOU UNDERSTAND program and faith estimate that your length your monthly AND ACKNOWLEDGE THAT WE DO NOT PROVIDE program deposit requirements will be sufficient to enable us LEGAL, TAX, BANKRUPTCY, ACCOUNTING OR negotiate settlements each however to for of your Debts; INVESTMENT ADVICE. You further understand and your actual results may vary. Although we will use acknowledge that we (i) will not be making periodic reasonable efforts to negotiate a settlement offer from each payments t0 any Creditor, make (ii) n0 claim that our debt of your Creditors, we cannot make promises or warranties resolution program will improve your credit rating or that we as to the outcome 0f our efforts or the time that it may take will attempt to modify, correct or remove any reference or us to resolve your Debts. entry on your credit report(s), (iii)cannot advise or assist you in the modification, improvement or correction of any 5. Fees: We do not charge or collect any fee for our reference or other entry contained in any credit report and settlement services unless and untila Debt issuccessfully (iv)have not represented that we can stop collection phone resolved. When we negotiate a proposed settlement 0f a calls or other creditorcommunications. Debt and you make a payment toward settlement 0f that Debt, we charge and are entitled to collect 21% of the D. Authorization to Review Consumer Credit enrollment amount of that Debt, as reflected on Exhibit A. Report Information: By your execution, below, you hereby On an annualized basis, ifwe settle your debts over the authorize and instruct us t0 obtain one or more credit reports estimated 46 month program life, your fee would work out to about you from any consumer reporting agency (often called be approximately 5.5% of your enrolled debt per year. a "credit bureau") for the purpose of performing the debt reliefservices described herein, including reviewing the way Although the settlement offers we negotiate may have terms that your creditors have reported your debts and your that require a single payment (for example, a $1,000 lump settlements to the credit bureaus. This authorization shall sum payment to settle a $3,000 account) or that require a number of payments (for example, payments of $1,000 TYD-2628962—91 2843/TX-1 204 1 4 Page 3 of 19 ET DocuSign Envelope per our terms We month fee charged for in ID: for the F62080A4-C2F6—4D37-B95F-7FSBD69E037D four full, Creditor toward at an substantially recommended reserve the months settlement the time agreed similar to you. right to to of to you upon present settle any make a Debt $10,000 is any earned, settlement of that those to negotiated you a by account), payment and us settlement to Debt on and is a offer 7. governed or W Additional required by Program Provisions the by and principles. state, any claim law Unless otherwise set 0f your construed or dispute state, in this accordance with required must be by forth herein or Agreement the resolved the by shall laws be the state of Arizona, excluding any conflicts of law provisions Unless otherwise law of of your a court only after you have accumulated sufficient funds in your located in Maricopa County, Arizona, and the parties agree Settlement Account to pay both the negotiated amount of the to submit to the personal jurisdiction of the courts located settlement and the full amount 0f the fee associated with that within Maricopa County, Arizona for the purpose of litigating Debt. Similarly, in order to secure a beneficial settlement all such claims or disputes. of a Debt for you, we may elect to spread our fee over time ifsufficientfunds are not available inyour Settlement No Power of Attornev Conferred: We shall at all Account. In cases where our fees are paid in more than one times act 0n your behalf as an independent contractor and installment, we do not assess any interest0r other finance not as attorney-in-fact.We shall not have any authority to charge on balances owing. Our fees, once earned, willbe contract for or bind you other than as expressly set forth paid to us via electronic debit or check by phone from your herein or inthe Authorization to Communicate with Creditors Settlement Account, as authorized by you in the Direct Debit and Collection Agencies, attached to this Agreement as Authorization, attached hereto as Exhibit B, and are non- Exhibit C. refundable. Severability; Waiver: If any provision of this A. Verifvinq Your Debt Balance: If you have Agreement is found to be invalid or unenforceable, the completed Exhibit A based on one or more credit card remainder of this Agreement shall not be affected and the statements dated prior to the Effective Date, or based on remaining terms will continue in effect and be binding on no credit card statements at all,Exhibit A may not reflect the parties, provided that such holding of invalidity or the actual amount owed to each of your Creditors. We may, unenforceability does not materially affect the essence of from time t0 time, contact some 0r allof your Creditors this Agreement. The failure of either 0f us at any time to to ascertain the exact amount owed to such Creditor(s) as enforce any provision 0f or any right under this Agreement of the Effective Date. Ifwe substantiate that the amount will in no way be construed to be a waiver of such provisions actually owed t0 any Creditor on the Effective Date differs or rights, nor shall the failure of either of us to exercise any from the amount set forth on Exhibit A, Exhibit A shall be rights or options under this Agreement preclude or prejudice deemed restated with your consent as of the Effective Date, the exercising of the same or any other right under this with any corrected amount(s) controlling forall purposes. Agreement or in any way affect the validity of this Agreement. 6. Withdrawal from the Program; Termination of this Agreement: You may terminate this Agreement and Notice: Any notice 0r demand which is required or withdraw from your debt resolution program at any time, provided to be given under this Agreement shall be deemed without any termination fee or other penalty, by providing us to have been sufficiently given and received for allpurposes with written notice of termination (which may be electronic). when delivered by hand or nationally recognized overnight Our fees that are earned but remain unpaid, right to collect in courier, or fivedays after being sent by certified or registered whole or in part, for any reason wi||survive any termination mail,postage and charges prepaid, return receipt requested, of this Agreement. to the person and at the address given in the first paragraph of this Agreement. We must receive your notice at least five (5) business days prior to any scheduled electronic funds transfer inorder to Assignment: You may not assign or transfer any of enable us to issue cancellation instructions to your bank. your rights or obligations under this Agreement, and any Subject t0 our verification 0f your identity, we may, in our attempt to assign or transfer such rights or obligations will be sole discretion, accept a verbal termination notice. A|| null and void. We may assign this Agreement without your authorizations to communicate with your Creditors and any consent to (i)any parent, subsidiary or affiliateof ours, (ii) other authorizations we may have to act on your behalf will an acquirer of all or substantially all of our assets or a (iii) be revoked and ineffective immediately upon termination. successor to us by merger. In the event that you fail to make any payment required Insurance: We maintain the requisite surety bond or by this Agreement, failto approve a settlement that we insurance to cover consumer claims as required by Texas believe, in good faith, isin your best interests or otherwise law. failto discharge any of your obligations, we have the right to terminate this Agreement with five (5) days' written notice (which may be electronic) to you, without any further obligation 0f any sort. TYD-2628962—91 2843/TX-1 204 1 4 Page 4 of 19 ET DocuSign Envelope ID:F62080A4-C2F6—4D37-B95F-7FSBD69EO37D aforementioned documents, as if each of them had been set O forth herein intheir entirety. Please print and save a copy of this Agreement and allexhibits and attachments for your ,— records. Complete Agreement; Modification & Amendment: This Agreement represents our complete and kn exclusive supersedes statement communications all of previous relating our mutual written to the and understandings oral provision agreements of any and and service(s). D mn lnrr Rfrn:The Other than as set forth herein, including but not limited to any following documents are hereby incorporated herein by amendment provided for by Section 5(A), this Agreement reference as part 0f thisAgreement: (i)Exhibit A (listingof may only be modified or amended by a writing signed by Debts covered by this Agreement and Creditors to which the both of us, provided, however, that we may change any Debts are owed); (ii)Exhibit B (Direct Debit Authorization); term of this Agreement, or add any additional term t0 this Exhibit C (iii) (Authorization to Communicate with Creditors Agreement, by providing you with fifteen (15) days' advance and Collection Agencies); (iv)Exhibit D (Dispute Resolution written notice of such change. If youdecline to accept such Procedures); (v) Exhibit E (Client Financial Analysis); and change, your sole and exclusive remedy wi|| be to terminate (vi)the AFCC Disclosure Statement