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Transcript of Arbitration
Date: December 29, 2022
Case: Jones, et al. -v- The Bank of New York Mellon, et al.
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Transcript of Arbitration 11 to 4)
December 29, 2022
7
IN THE DISTRICT COURT OF PROCEEDINGS
HARRIS COUNTY, TEXAS
19eT JUDICIAL DISTRICT THE ARBITRATOR: I'll call Case
-e----------- ee Number 2019-71004. Iam John Wooldridge. I'ma senior
GUY JONES AND MARLA JONES, judge acting as an arbitrator in the proceedings of
Plaintiffs/Counterclaim Jones versus BONY; and I'm going to ask that everyone
Defendants, make their announcement and who is present for our
v cause No.
record, starting with Mr. Moon.
THE BANK OF NEW YORK MELLON 2018-71004
F/K/N THE BANK OF NEW YORK,
MR. MOON: My name is John Moon. I represent
AS TRUSTEE FOR Judge John T.
10 Marla and Guy Jones.
CERTIFICATEHOLDERS OF CWABS, Wooldridge 11 THE ARBITRATOR: And, Mr. Moon, Marla and Guy
INC AND NATIONSTAR MORTGAGE 12 Jones are here with us; they're on a phone with no
LLC D/B/A MR cooPeR, 13 video; is that correct?
Defendants/Counterclaim 14 MR. MOON: That is my understanding.
Plaintiffs 15 Marla, I've heard your voice. Guy, are you
wee ------- woe ek 16 there as well on the same phone?
Reporter's Transcript of Proceedings 17 GUY JONES: Yes, Iam. I'm here.
Conducted Virtually 18 THE ARBITRATOR: Next, please.
20 Thursday, December 29, 2022 19 MR. HUEBINGER: Good morning. My name is
21 11:51 a.m. PST 20 Jason Huebinger. | represent defendants in this matter.
22 Job No 476204 21 I'm joined today by corporate representative Alan Blunt.
23 Pages 1-82 22 THE ARBITRATOR: Thank you.
24 Reported By Rhonda Norberg, RPR 23 Again, good morning. It's a pleasure to be
25 CSR No 9265 CCRR No 185 24 with you. Just some housekeeping matters.
25 I've had some -- I have received, and I think
4
APPEARANCES everybody -- Mr. Moon, you may have gotten some emails
from your clients. I've tried to avoid responding to
ON BEHALF OF THE PLAINTIFFS/COUNTERCLAIM DEFENDANTS: those, since they are represented by counsel and it
JOHN HENRY MOON III, ESQUIRE would not be proper for me to have direct conversations
THE MOON LAW FIRM
since they are represented by counsel.
LLL Fairmont Parkway
Pasadena, Texas 77504 In those discussions, generally some general
713.999.9398 discussions or general emails to me about the process,
so I'd like to take a moment and just address that.
10 ON BEHALF OF DEFENDANTS THE BANK OF NEW YORK MELLON, 9 Before I get with that, I don't anticipate
ul AS TRUSTEE, AND NATIONSTAR MORTGAGE LLC: 10 having a very long day today. My father-in-law
just
12 JASON HUEBINGER, ESQUIR 11 passed away this morning, so I'm on my way back to
13 MCGUIREWOODS 12 Houston and -- but I didn’t want to reschedule this
4 Texas Tower 13 proceeding, but I don't intend to be with you for a very
15 845 Temas Avenue, 24th Floor 14 long time because I have some family matters I must
16 Houston, Texas 77002
15 attend to this afternoon and I'm actually out of town,
7 713.353.6684
18
16 so thank you for your cooperation and indulgence.
19 ALSO PRESENT; 17 He lived a long life. He was 98 years old, so
120 JOE RAMIREZ - Videoconference Technician 18 it was a--
21 19 MARLA JONES: Very sorry.
122 20 THE ARBITRATOR: -- long, filled life.
123 21 MR. MOON: Sorry to hear about that, Your
24. 22 Honor.
25 23 THE WITNESS: Well, thank you.
24 Back to the issues on the processes. This is
25 the -- an arbitration that's called for in a clause, and
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Transcript of Arbitration 2 (5 to 8)
December 29, 2022
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I'm going to let counsel -- I'm sure you will address housekeeping matters. In this case, we have a -- I
that today. It is being recorded at request. believe it was a -- an arbitration with regard to the
Anyone who makes a request, I'm -- I am happy mediated settlement agreement that was reached, and --
to accommodate a request for a recording, and everyone and the request for enforcement is by the defendants in
will have access to this recording should -- should they this case.
desire to -- to see or hear or review the transcript The case -- and I want to note specifically the
here today. plaintiffs identified in this case is the Joneses, who
So it's open to everybody. There's nothing brought this -- this suit in which this case was
sinister or evil about it. It's -- it's a standard, mediated, and this case is being arbitrated. The
0 typical proceeding; and having been a jurist for about 10 Joneses are the plaintiffs for purposes of the record,
11 20-something years, if anybody wants a record, I give it 11 and BONY -- I may be mispronouncing that, but under the
12 to them. 12 style of the case, BONYis the defendant in this case.
13 ‘That's the local rules anyway. Except ina 13 Tbelieve there's probably some cross-motions
14 mediation. I don't give you a record in a mediation. 14 involved; but throughout the reference today will be
15 ‘The -- the third thing is I did provide for 15 plaintiffs, Jones, represented by Mr. Moon, and the
16 breakout rooms. There was a question by the Jones with 16 defendants, BONY, represented by their counsel as well.
17 regard to the breakout rooms. That's just an 17 So I think I've taken care of all the
18 accommodation for breakout rooms. Nobody is going to go 18 housekeeping matters. I'm ready to proceed. You're up,
9 into the breakout rooms unless they desire to meet with 9 Mr. Huebinger. Are you ready?
20 their counsel privately and have some discussions. 20 MR. HUEBINGER: Yes, Your Honor.
21 But I will not be going into any breakout rooms 21 THE ARBITRATOR: Your motion, sir.
22 with any -- either side today in these proceedings. 22 MR. HUEBINGER: Thank you, Your Honor. Please
23 It's not like the mediation where I spent time in 23 let me know if you can see the PowerPoint presentation.
124 individual rooms separate from the opposing parties. 24 I'm sharing my screen at the moment. Can
25 But today's process, the breakout room is just 25 everyone see this?
6
an accommodation for you should you desire to meet with MR. MOON: Yes, I can.
your counsel privately outside the presence of everyone. MR. HUEBINGER: Thank you all for being here
We provide that in court proceedings. There today. I'll try to keep this brief, this is -- has
is -- in the civil courthouse in Harris County, we have been multiple proceedings on thi case.
conference rooms for lawyers so they can meet with their But in short, this case arises from a mortgage
clients confidentially as well. loan secured on real property in -- August 30th, 2022,
The -- the other matter I wanted to address the parties, personally and through their counsel,
is 's there's been some concern in which to get presented -- participated in a mediation before Your
before Judge Beau Miller in this case; and I want to 9 Honor.
10 assure you that the next stop was likely to be, when I 10 As aresult of this mediation, the parties
11 complete today, either side will have an option and an 11 executed a mediated settlement agreement on August 30th,
12 availability, depending on how I rule, to take the 12 2022. Pursuant to that MSA, there's a clause by which
13 arbitrator's findings to Judge Miller for his review and 13 if there's any type of disputes related to this MSA, the
14 to enter, if necessary -- enter a final award. 14 parties will come together first to try to mediate those
15 He's not -- his process is not to be my 15 disputes; and then to the extent there's an impasse at
16 appellate judge in this case, but he is the case -- the 16 that point, will thereby enter into an arbitration,
17 district judge who is handling the case, and -- and any 17 which then will be pursuant to a binding arbitration
18 order from this court for enforceability
will go to 18 agreement and order by Your Honor.
19 Judge Miller for review, so I just want to make sure 19 The parties did conduct this second mediation
20 everybody knows that this is an open, transparent 20 on November 22nd, 2022. They were unable to resolve
21 process and procedure and -- and -- and Judge Miller 21 their differences with respect to the MSA, and so that's
22 may, should you all desire to have him, take a look at 22 why we're here today pursuant to this arbitration
23 this process or the -- the arbitrator's final hearing 23 clause, which states in the event an agreement cannot be
24 award once I complete that. 24 reached after a one-day mediation with a mediator, the
25 Okay. I think I took care of all the 25 mediator shall act as an arbiter of the issues and shall
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Transcript of Arbitration 3 (9 to 12)
December 29, 2022
9 I
resolve the issues by telephone conference or meeting of MR. HUEBINGER: Yes.
the attorneys or mediator prior to the date of entry on THE ARBITRATOR: Because I'm not seeing -- all
a date selected by the mediator, and each party shall I'm seeing is -- are you into your PowerPoint?
share the cost of same equally. Because --
For clarity of the record, the mediator MR. HUEBINGER: Yes, I'm into my PowerPoint.
referenced in the arbitration clause is Judge THE ARBITRATOR: Somebody is not flipping the
Wooldridge, here today, and he will be acting as page.
arbitrator. MR. HUEBINGER: Let me see here. It shows mine
And for the record, defendants have no on -- it shows -- on mine, I see the Page 7.
0 objection to the enforceability of this arbitration 10 John, can you see my Page 7?
11 clause. We believe that it is enforceable over all ll MR. MOON: No. It says "Protected View" at the
12 claims relevant here today. 12 top, "Enable Editing," and then we've got an slide list
13 Now, as most on this call know, Texas law 13 on the left-hand side. It's just on your title page.
14 favors arbitration. It's not, per se, unconscionable; 14 MR. HUEBINGER: Let me try this.
15 and arbitration agreements in general are interpreted 15 THE VIDEOCONFERENCE TECHNICIAN: Let me know if
16 under traditional contract principles. 16 you need any help.
17 My understanding, based on plaintiff's 17 THE ARBITRATOR: While you're doing that, if
18 pre-arbitration briefing, is their primary argument 18 you would kind of just kind of go back — I hate for you
9 today will be that the MSA and the arbitration agreement 19 to repeat yourself, or ~
20 are unconscionable; and so that will be my primary 20 MR. HUEBINGER: Can everyone see it now? Is it
21 discussion here today, which, in general, in our -- a 21 the first page?
22 contract is unconscionable if it's so one-sided under THE ARBITRATOR: You're on Page 7 now.
23 the circumstances that it is rendered unconscionable. 23 MR. HUEBINGER: Okay. This is unusual. Let's
124 And plaintiffs have a two-part burden in establishing 24 see here.
25 that. 25 MR. MOON: Yeah, I see Page 7 too.
10 12
First, they have to show procedural THE VIDEOCONFERENCE TECHNICIAN: I think it has
unconscionability and substantive unconscionability. To to do when -- when you're sharing your screen, make sure
determine procedural unconscionability, the arbitrator you're sharing just the PowerPoint program.
will look at the contract formation prong, which, in (Discussion between Mr, Huebinger
this instance, is the MSA, and determine whether there and the Videoconference Technician
was a lack of meaningful choice for plaintiffs. held off the record.)
With respect to substantive unconscionability, MR. HUEBINGER: Thank you, Your Honor, for
that -- that relates to the fair he is of the underlying lettingme know about that. My apologies. So I'lljust
MSA. It has to be shockingly gross -- sufficiently 9 really briefly go over what | just mentioned, which is
10 shocking or gross in order to be declared 10 that we're here today on the arbitration of Jones v.
11 unconscionable; so the plaintiffs both have to show that 11 BONY.
12 they lacked a meaningful choice and that the underlying 12 This case arises out ofa real property loan.
13 terms were shocking or gr 13 And just so I'mclear, everyone can see Page 2 here?
14 So first and foremost, Texas courts have the 14 So on August 30th, the parties, personally and
15 presumption that, absent proof
of mental incapacity, a 15 through their counsel, participated in an in-person
16 party who signs an agreement understands what that 16 mediation with Your Honor; and as a result of this
17 agreement meant and what the words to that agreement 17 mediation, the parties executed and entered into a
18 meant. 18 settlement agreement that I'll refer to as the MSA, the
19 That's particularly the case as here, where 19 mediated settlement agreement, on August 30th, 2022.
20 both parties were represented by counsel, a point that 20 Pursuant to that mediated settlement agreement,
21 I'm going to raise several times. 21 there was a dispute of resolution provision by which if
22 And finally, just so we're awful on the same 22 any party had an issue with the MSA, then counsel can
23 page, there are five elements that an arbitrator -- 23 come together first to tryto resolve those issues ina
124 THE ARBITRATOR: Let me -- are you using the 24 mediation; and if they are unable to, they will then
25 PowerPoint? 25 exercise the right to trigger an arbitration, one-day
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Transcript of Arbitration 4 (13 to 16)
December 29, 2022
13 15
arbitration, before Your Honor; and on November 22nd, arbitration, then I'm sure Judge Wooldridge will put us
2022, the parties entered into that second mediation. into aroom.
They were unable to settle their differences But if you'll let Mr. Huebinger finish up his
with respect to the MSA; and so we are here today to statement --
resolve those impasse under this arbitration provision. MARLA JONES: Okay.
And with respect to the arbitration clause MR. MOON: -- that would be great --
itself, it reads "In the event an agreement can't be THE WITNESS: Okay.
reached after a one-day mediation," which did occur on MR. MOON: -- and then if y'all need to talk to
November 22nd, "the mediator shall act as an arbiter of me privately, we can ask the judge for that.
0 the issues and resolve the issues by telephone 10 Tm sorry to interrupt. I just felt like I
11 conference or a meeting of the attorneys and mediator 11 could handle that. I hope that was okay.
12 prior to the date of entry or ona date selected by the 12 MR. HUEBINGER: Absolutely. No -- no problem
13 mediator, and each party shall share the cost of the 13 at all.
14 same equally." For the record, the arbitrator and 14 THE ARBITRATOR: You may proceed.
15 mediator referenced here is Judge Wooldridge. 15 MR. HUEBINGER: With respect to
16 With respect to arrest arbitration agreements, 16 unconscionability, first and foremost, there's a
17 Texas law favors them, there's nothing unconscionable, 17 presumption that a person who signs an agreement, absent
18 per se, about them and they're interpreted under 18 proofof mental incapacity, understood it terms,
9 traditional contract standards. 9 understood what it meant with respect to the contract
20 Based on pre-arbitration briefing, my 20 itself; and on a broad basis, the elements of
21 understanding is the plaintiffs are arguing that the MSA 21 determining whether or not a contract is unconscionable
22 and its arbitration contract are unconscionable; and 22 are the arbitrator must look at, one, the entire
23 an-- an agreement is unconscionable ifit's so 23 atmosphere in which the agreement was made, which in
124 one-sided under the circumstances that a court will 24 this circumstance would be the MSA, and the -- any
25 render it unconscionable. 25 alternatives, if any available, to the parties at the
14 16
In order to establish this, a plaintiff arguing time the contract was made.
unconscionability has both a procedural and a Three, the non-bargaining ability of either
substantive unconscionability burden. To determine side; four, whether the contract was illegal or against
procedural unconscionability, courts look at the public policy; and five, whether or not the contract is
contract formation process and see if the plaintiff
had oppressive or unreasonable.
a lack of meaningful choice. With respect to settlement agreements, I cited
In other words, the plaintiffs here today have this case because I thought it was somewhat -- it was
to show that they lacked meaningful choice when forming 8 pretty on point. It's LeBlanc v. Lange. It's a Houston
the MSA at issue in this arbitration. 9 Court of Appeals case, so jurisdictionally, it has a lot
10 With respect to substantive unconscionability, 10 of precedence over this matter; and it arose from a
11 that concerns fairness, and the arbiter must find that 11 business association
that went wrong,
12 the terms of the MSA itself are sufficiently shocking or 12 The parties later resolved their issues via
13 gro to be rendered unconscionable, so plaintiffs 13 settlement agreement, but LeBlane argued it was
14 must show first a lack of meaningful choice with respect 14 unconscionable. And while the facts -- I don't want to
15 to the MSA; and secondly that its terms are shocking or 15 get too much into the facts. The Court itself found
16 gross. 16 that in the -- in rendering the settlement agreement,
17 MARLA JONES: Excuse me. When -- when -- when 17 LeBlane was represented by counsel and, through counsel,
18 do we -- if we have something to say, when -- to our -- 18 could have asked for revision of any offending terms;
19 our attorney, do we have to hang on and wait or -- or 19 and that even if LeBlanc thought he had no choice but to
120 did you say we can do that at any time? How would did 20 sign the agreement or that he had no bargaining ability,
21 that work? 21 there was no shocking facts suggesting procedural
122 I'm sorry to interrupt. 22 unconscionability.
23 MR. MOON: Marla, if you would, let me 23 And I reference this case for two reasons.
24 Huebinger finish; and then if you want to speak to me 24 First, both parties in the November 22nd, 2022, and the
25 before I -- I talk to Judge Wooldridge in the -- for the 25 August 30th mediation were represented by counsel, could
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Transcript of Arbitration 5 (17 to 20)
December 29, 2022
17 19
have asked for revision of any offending terms to the unconscionable, we would ask that Your Honor enter an
agreement; and while that's not a, per se, bar to order that basically says that this MSA is conscionable
allowing an unconscionability argument, it is a very and that it is enforceable against the plaintiffs in
high burden to establish that there was procedural or light of the circumstances.
substantive unconscionability where both sides were And that concludes my presentation. My only
represented by counsel; and secondly, to show that this one other small point I'd like to raise now, if Your
is an objective metric when looking at whether or not Honor will permit, is that prior to the arbitration,
there was substantive or procedural unconscionability. plaintiff submitted a lot of documents; and some of
Whether or not plaintiffs individually felt those documents were related to the underlying lawsuit,
0 like they had no choice or that they had no bargaining 10 which are fine, but other documents seemed to deal with
11 ability, et cetera, it doesn't matter. It's whether or 11 other lawsuits, other circumstances that were not --
12 not objectively speaking, they had no choice, no 12 where the plaintiffs were not involved or my client was
13 bargaining ability, et cetera. 13 not involved.
14 So with respect to arbitration agreements, the 14 So to the extent the plaintiffs are trying to
15 burden is even higher because mutual promises to 15 argue that it's unconscionable by using evidence of
16 arbitrate in and of themselves constitute sufficient 16 other matters in order to establish some kind of pattern
17 consideration and arbitration agreements are only 17 of bad behavior by one of my clients, I would object to
18 illusory if one party is able to avoid the promise to 18 that because the unconscionability elements are clear
9 arbitrate altogether, so if an arbitration provision 9 that the determination relates to the bargaining and
20 allowed one party to avoid arbitration while also, you 20 history of the two parties in this lawsuit, not anything
21 know, mandating that another party arbitrate, those are 21 that happened outside those confines, but that's --
22 illusory contracts. 22 that's all Ihave to say, Your Honor.
23 ‘That's not what we have here. Both sides 23 THE ARBITRATOR: Okay. Mr. Moon, are you ready
24 agreed to arbitrate; and with respect to arbitration, 24 to proceed?
25 unequal bargaining power is not sufficient grounds for 25 MR. MOON: I think my clients wanted to meet
18 20
determining that a well-supported claim that an with me privately, Judge, if that would be acceptable.
arbitration agreement is conscionable. We'll tryto briefly meet with them and address whatever
There has to be some kind of fraud or other concerns they have.
type of basis to argue that an arbitration agreement THE ARBITRATOR: Very well. Everybody stand
that is mutually applicable is unconscionable. by.
And -- and just to sum up, Your Honor, I'd like We'll go off the record, at this time, Rhonda.
to go through the applicability of the unconscionability (Arecess was taken from 12:15 p.m.
elements I referenced earlier. to 12:34 pm.)
First, the entire atmosphere in which the 9 THE ARBITRATOR: Rhonda, you're back on the
10 agreement was made. The MSA was agreed to and signed 10 record.
1 during a mediation where both parties were represented 11 Let the record reflect all present when we last
12 by counsel and the mediation was conducted by a neutral 12 recessed are again present. Off the record, Mr. Moon
13 mediator. 13 entered the room. The Jones were still moving into the
14 The alternatives available to the parties of 14 room. You advised you wished to have your position, and
15 the mediation, plaintiffs had multiple alternatives, 15 then Mr. Jones wishes to address the arbitrator.
16 including proceeding with the -- with the litigation at 16 Did | correctly recite the discussion that
17 issue, and instead decided to enter into the MSA. 17 happened off the record?
18 As -- as I mentioned, both parties were 18 MR. MOON: You did, Your Honor.
19 represented by counsel, so there was no disparaging 19 And, Mr. Jones, is that still how you'd like to
20 non-bargaining ability of one party. Both parties were 20 handle it?
21 on equal footing at a neutral mediation, represented by 21 GUY JONES: Yes, sir.
22 counsel; and finally there's nothing in the contract 22 THE ARBITRATOR: All right. You may proceed,
23 that's illegal, against public policy, oppressive, or 23 sir.
24 unreasonable; and because each of these elements lean 24 MR. MOON: Okay, Your Honor.
25 towards the contract being -- the MSA being 25 I'm making an argument on behalf of my clients
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Transcript of Arbitration 6 (21 to 24)
December 29, 2022
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regarding the unconscionability of the underlying I believe that that satisfies the second prong
mediated settlement agreement as well as the arbitration of the unconscionability argument as well, which would
clause. be the substantive unconscionability, which focuses on
Specifically, my clients would like the -- the fairness of the contract in light of the
the -- the judge to understand that there was a lot that circumstances.
led up to where we ended up in mediation. Specifically, So in light of the circumstance that brought
there was a mediated settlement agreement previously them there, the option to return to court was not one
entered into by the parties that did not bear their that was valid, it's one where they would have been held
signature that required them to pay the Bank of New York 9 to a MSA that was entered into without their
0 10 signature and, according to Mr. and Mrs. Jones, without
11 There was a dispute over that with regardto 11 their approval on the part of their attorney.
12 a-- amotion for summary judgment filed by Bank of 12 So in light of that, that is their argument
13 New York, and -- that we had a hearing on that led us to 13 with regards to both procedural and substantive
14 the second mediation. 14 unconscionability ofthe underlying MSA and why they're
15 Mr. and Mrs. Jones were under the impression 15 asking to be returned to court as opposed to entering an
16 that they were to be held to the [J mediated 16 arbitration award based upon the mediated settlement
17 settlement agreement, the original mediated settlement 17 agreement.
18 agreement, if they did not reach a second agreement. 18 And --
19 Their argument is that due to the fact that 19 THE ARBITRATOR: I'm sorry. Before you go on,
20 they believed they had no alternative, they had no -- no 20 Ijust want to make sure I'm clear.
121 other way forward but to agree, that that would speak 21 ‘There was a previous mediation
that they
22 both to the procedural unconscionability as well as the 22 entered into. Was I the mediator in that one, the J
23 substantive unconscionability; specifically, that 23 MR. MOON: You were not, Your Honor.
124 procedurally speaking, if they had not reached an 24 So just to clear that up, basically, they
25 agreement that day, then they would have been back in 25 had -- they had counsel prior to my involvement in the
22 24
court under the [J mediated settlement agreement cas ‘The case been going on quite a while. They had
that they did not agree to and that their attorney had mediated the case previously and entered into a mediated
signed on their behalf, but that they did not sign, and settlement agreement that was very similar to the one
then regarding the substantive unconscionability of it, that we entered into but for [I instead of
the fact that their attorney -- their argument was that That mediated settlement agreement was -- my
their attorney had gone into this agreement with their clients' argument to the court when Bank of New York
benefit or understanding or -- or acknowledgment; that filed a motion for summary judgment on that -- on that
they were put in a position where it was -- it was both original MSA, the one that Your Honor was not involved
procedurally and substantively unfair. 9 with, the one that I was not involved with -- my
10 Furthermore, my clients would like Your Honor 10 client's argument was that this was entered into by
1] to understand that they did not realize that the motion 11 their attorney and -- and bore only their attorney's
12 for summary judgment had not been ruled upon or signed 12 signature, did not bear their signature, and
13 by Judge Miller, and they subsequently learned that 13 specifically had -- we filed affidavits with the court
14 there was no signed order by Judge Miller, and that that 14 showing that Mr. Jones had left the mediation prior to
15 would weigh towards the unconscionability as well. 15 the MS -- MSA being entered, and that Ms. Jones felt
16 They feel as though they had no legitimate say 16 extremely pressured by her attorney and was the only
17 or stake in the -- in the mediation that happened 17 remaining person in -- involved in that mediation.
18 previously with -- with Your Honor, Judge Wooldridge, 18 So we went -- we attended a motion for summary
19 and that they were, in effect -- maybe not forced into 19 judgment and hearing on that with Judge Miller. Judge
20 an agreement, but that they lacked that other option 20 Miller had given some indications as to how -- how he
21 that would satisfy the procedural unconscionability 21 was going to rule and what his thoughts were about it,
22 argument and then secondly, get in the light of the case 22 and that led us to Your Honor because we had sort of
23 as a whole in regards to their first attorney and how 23 a-- I think Judge Miller -- we had to do additional
24 the mediated settlement agreement -- the original 24 briefing on that that Elizabeth and I both did; and then
25 mediated settlement agreement occurred. 25 I think in the -- in the midst of that, we had --
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Transcript of Arbitration 7 (25 to 28)
December 29, 2022
25 27
Elizabeth and I, my clients, and -- and Bank of New York it, and that, we found later to be not true because
had all kind of agreed let's go to mediation again and there was never anything signed by Judge Miller.
see if we can't get this resolved, and so that is sort He did not sign the order stating that we were
of the procedural aspect of how we got to Your Honor, bound by anything, WHICH we did not, at the time we
and so that's the -- I hope that helps. signed the -- at your mediation, we thought that it was
THE ARBITRATOR: Yes, it does. either Jj or I That's -- that's a no-brainer; but
And for - just for -- to be clear, this second we really were not even held to the [JJ at that point.
mediation that came back, the case did settle, resulting 8 Tf we'd have known that Judge Miller had not
in an MSA signed by all counsel and all parties with a 9 signed anything, that we were not bound by anything, we
0 settlement of J versus [J which was in the first 10 would have taken our chances in court. That is what
11 one; is that correct? 11 we've been wanting from day one, was to finally be able
12 MR. MOON: That is accurate, Your Honor. 12 to go into a courtroom and present all of our evidence
13 THE ARBITRATOR: So there was a negotiation 13 showing that they had absolutely no right to foreclose
14 even off of the first mediation where, arguably, there 14 to start with.
15 was an agreement reached, but Mr. Jones was not present 15 But that never got -- gets brought up. That is
16 when it came back and mediated, and then further 16 never allowed into the conversation, which is the basis
17 negotiation with all parties resulted in a further 17 of the whole lawsuit. The basis for the lawsuit is they
18 reduction agreement from [jj to IM] Okay. I got it. 18 want to foreclose and after --
9 All right. 19 (Marla Jones and Guy Jones speak
20 Mr. Jones, Mrs. Jones, Iam here. This is your 20 simultancously.)
21 opportunity. Glad to hear whatever you have to say. 21 MARLA JONES: -- having to do a lot of research
122 GUY JONES: Good afternoon, Your Honor. 22 ourselves because but not Mr. Moon, but Mr. Lane, the
123 On the first mediation, it was so lopsided that 23 previous attorneys, they just let all the -- all the
124 I just walked out because I just -- I -- I mean, there 24 facts and all the evidence showing that they did not
25 was nothing that we got to say init. The only thing we 25 even have the right -- they owed us money at the time
26 28
talked about is what the bank wanted. They never would they foreclosed.
let -- mean, we never got to say anything. None of that was ever presentedto the court or
And when it comes -- and when it comes to the to the mediators. The -- the mediator and the judge had
second one, the second one basically was just like the not even had the chance to look at all the evidence that
first one. All we went straight to was talking about this was a fraudulent lawsuit way back in 2010.
money. We never got to say one word. Straight to the (Marla Jones and Guy Jones speak
money thing, you know; and even in that, I don't think simultaneously.)
we're 100 percent responsible for all this mess anyway. MARLA JONES: We have been -- we have gone, as
‘They gotta be responsible in some kind of way, 9 the gentleman who started this -- he said that we --
10 but how come we -- you know, we're 100 percent. I don't 10 there have been multiple suits on it. He's right, but
11 understand that part of it. You know, the second one -- 1] they were never able to get a judge to get our house
12 and the only reason -- they just wear you out; but after 12 taken away.
13 you walk out of there, you start reading what -- what 13 GUY JONES: They got our insurance taken away
14 negotiation is in the dictionary and everything. 14 and everything.
15 Well, what happened was not a negotiation, is 15 MARLA JONES: Everything that -- that they
16 all can say. I mean, I -- you know, all we wanted to 16 tried to do was not enough to do it; and now it sounds
17 have was our say, ask them some questions. We never got 17 like they could possibly foreclose because of a piece of
18 to ask Bank of America nothing. 18 paper that was signed without any judge or mediator ever
19 MARLA JONES: Bank of New York. 19 getting to see the real basis.
120 GUY JONES: Bank of New York, we never got to 20 (Marla Jones and Guy Jones speak
21 ask them anything. Straight to mediation about the 21 simultaneously.)
122 money. Come on. That just doesn't seem right to me. 22 MARLA JONES: This is not just -- this isn't
23 MARLA JONES: ‘Then it was basically either sign 23 just what the bank thinks we owe them. They owed us
124 this one or you're responsible for the first one, so 24 money at the time they foreclosed, and they've got a
25 basically we had -- the option was this is it, this is 25 whole lot more fighting power than we used to have
PLANET DEPOS
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Transcript of Arbitration 8 (29 to 32)
December 29, 2022
29 31
because we're a little bit smarter now thanks to having to make it very clear what my practice is, mediation,
to go through all this. arbitration, and visiting judge.
It has never been fair from the beginning. We Since I'm a visiting judge, I cannot take -- I
might actually have a fair shot at going into a trial cannot have clients, I cannot practice law, I cannot
now because we do know so much. We took control of the appear in court unless I'm wearing a black robe. If I
case and we went and we -- we went through the court were your judge today or your arbitrator today, I would
records and we got all -- everything that was going on, be a decision-maker; but I'm not your judge, I'ma
and now
if we had to present our case, they would not, I mediator, which means I'm a facilitator; and a
don't believe, have a chance because of everything
Preview
Planet Depos’ We Make It Happen™ Transcript of Arbitration Date: December 29, 2022 Case: Jones, et al. -v- The Bank of New York Mellon, et al. Planet Depos Phone: 888-433-3767 Fax: 888-503-3767 Email: transcripts@planetdepos.com www.planetdepos.com Transcript of Arbitration 11 to 4) December 29, 2022 7 IN THE DISTRICT COURT OF PROCEEDINGS HARRIS COUNTY, TEXAS 19eT JUDICIAL DISTRICT THE ARBITRATOR: I'll call Case -e----------- ee Number 2019-71004. Iam John Wooldridge. I'ma senior GUY JONES AND MARLA JONES, judge acting as an arbitrator in the proceedings of Plaintiffs/Counterclaim Jones versus BONY; and I'm going to ask that everyone Defendants, make their announcement and who is present for our v cause No. record, starting with Mr. Moon. THE BANK OF NEW YORK MELLON 2018-71004 F/K/N THE BANK OF NEW YORK, MR. MOON: My name is John Moon. I represent AS TRUSTEE FOR Judge John T. 10 Marla and Guy Jones. CERTIFICATEHOLDERS OF CWABS, Wooldridge 11 THE ARBITRATOR: And, Mr. Moon, Marla and Guy INC AND NATIONSTAR MORTGAGE 12 Jones are here with us; they're on a phone with no LLC D/B/A MR cooPeR, 13 video; is that correct? Defendants/Counterclaim 14 MR. MOON: That is my understanding. Plaintiffs 15 Marla, I've heard your voice. Guy, are you wee ------- woe ek 16 there as well on the same phone? Reporter's Transcript of Proceedings 17 GUY JONES: Yes, Iam. I'm here. Conducted Virtually 18 THE ARBITRATOR: Next, please. 20 Thursday, December 29, 2022 19 MR. HUEBINGER: Good morning. My name is 21 11:51 a.m. PST 20 Jason Huebinger. | represent defendants in this matter. 22 Job No 476204 21 I'm joined today by corporate representative Alan Blunt. 23 Pages 1-82 22 THE ARBITRATOR: Thank you. 24 Reported By Rhonda Norberg, RPR 23 Again, good morning. It's a pleasure to be 25 CSR No 9265 CCRR No 185 24 with you. Just some housekeeping matters. 25 I've had some -- I have received, and I think 4 APPEARANCES everybody -- Mr. Moon, you may have gotten some emails from your clients. I've tried to avoid responding to ON BEHALF OF THE PLAINTIFFS/COUNTERCLAIM DEFENDANTS: those, since they are represented by counsel and it JOHN HENRY MOON III, ESQUIRE would not be proper for me to have direct conversations THE MOON LAW FIRM since they are represented by counsel. LLL Fairmont Parkway Pasadena, Texas 77504 In those discussions, generally some general 713.999.9398 discussions or general emails to me about the process, so I'd like to take a moment and just address that. 10 ON BEHALF OF DEFENDANTS THE BANK OF NEW YORK MELLON, 9 Before I get with that, I don't anticipate ul AS TRUSTEE, AND NATIONSTAR MORTGAGE LLC: 10 having a very long day today. My father-in-law just 12 JASON HUEBINGER, ESQUIR 11 passed away this morning, so I'm on my way back to 13 MCGUIREWOODS 12 Houston and -- but I didn’t want to reschedule this 4 Texas Tower 13 proceeding, but I don't intend to be with you for a very 15 845 Temas Avenue, 24th Floor 14 long time because I have some family matters I must 16 Houston, Texas 77002 15 attend to this afternoon and I'm actually out of town, 7 713.353.6684 18 16 so thank you for your cooperation and indulgence. 19 ALSO PRESENT; 17 He lived a long life. He was 98 years old, so 120 JOE RAMIREZ - Videoconference Technician 18 it was a-- 21 19 MARLA JONES: Very sorry. 122 20 THE ARBITRATOR: -- long, filled life. 123 21 MR. MOON: Sorry to hear about that, Your 24. 22 Honor. 25 23 THE WITNESS: Well, thank you. 24 Back to the issues on the processes. This is 25 the -- an arbitration that's called for in a clause, and PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 2 (5 to 8) December 29, 2022 5 I'm going to let counsel -- I'm sure you will address housekeeping matters. In this case, we have a -- I that today. It is being recorded at request. believe it was a -- an arbitration with regard to the Anyone who makes a request, I'm -- I am happy mediated settlement agreement that was reached, and -- to accommodate a request for a recording, and everyone and the request for enforcement is by the defendants in will have access to this recording should -- should they this case. desire to -- to see or hear or review the transcript The case -- and I want to note specifically the here today. plaintiffs identified in this case is the Joneses, who So it's open to everybody. There's nothing brought this -- this suit in which this case was sinister or evil about it. It's -- it's a standard, mediated, and this case is being arbitrated. The 0 typical proceeding; and having been a jurist for about 10 Joneses are the plaintiffs for purposes of the record, 11 20-something years, if anybody wants a record, I give it 11 and BONY -- I may be mispronouncing that, but under the 12 to them. 12 style of the case, BONYis the defendant in this case. 13 ‘That's the local rules anyway. Except ina 13 Tbelieve there's probably some cross-motions 14 mediation. I don't give you a record in a mediation. 14 involved; but throughout the reference today will be 15 ‘The -- the third thing is I did provide for 15 plaintiffs, Jones, represented by Mr. Moon, and the 16 breakout rooms. There was a question by the Jones with 16 defendants, BONY, represented by their counsel as well. 17 regard to the breakout rooms. That's just an 17 So I think I've taken care of all the 18 accommodation for breakout rooms. Nobody is going to go 18 housekeeping matters. I'm ready to proceed. You're up, 9 into the breakout rooms unless they desire to meet with 9 Mr. Huebinger. Are you ready? 20 their counsel privately and have some discussions. 20 MR. HUEBINGER: Yes, Your Honor. 21 But I will not be going into any breakout rooms 21 THE ARBITRATOR: Your motion, sir. 22 with any -- either side today in these proceedings. 22 MR. HUEBINGER: Thank you, Your Honor. Please 23 It's not like the mediation where I spent time in 23 let me know if you can see the PowerPoint presentation. 124 individual rooms separate from the opposing parties. 24 I'm sharing my screen at the moment. Can 25 But today's process, the breakout room is just 25 everyone see this? 6 an accommodation for you should you desire to meet with MR. MOON: Yes, I can. your counsel privately outside the presence of everyone. MR. HUEBINGER: Thank you all for being here We provide that in court proceedings. There today. I'll try to keep this brief, this is -- has is -- in the civil courthouse in Harris County, we have been multiple proceedings on thi case. conference rooms for lawyers so they can meet with their But in short, this case arises from a mortgage clients confidentially as well. loan secured on real property in -- August 30th, 2022, The -- the other matter I wanted to address the parties, personally and through their counsel, is 's there's been some concern in which to get presented -- participated in a mediation before Your before Judge Beau Miller in this case; and I want to 9 Honor. 10 assure you that the next stop was likely to be, when I 10 As aresult of this mediation, the parties 11 complete today, either side will have an option and an 11 executed a mediated settlement agreement on August 30th, 12 availability, depending on how I rule, to take the 12 2022. Pursuant to that MSA, there's a clause by which 13 arbitrator's findings to Judge Miller for his review and 13 if there's any type of disputes related to this MSA, the 14 to enter, if necessary -- enter a final award. 14 parties will come together first to try to mediate those 15 He's not -- his process is not to be my 15 disputes; and then to the extent there's an impasse at 16 appellate judge in this case, but he is the case -- the 16 that point, will thereby enter into an arbitration, 17 district judge who is handling the case, and -- and any 17 which then will be pursuant to a binding arbitration 18 order from this court for enforceability will go to 18 agreement and order by Your Honor. 19 Judge Miller for review, so I just want to make sure 19 The parties did conduct this second mediation 20 everybody knows that this is an open, transparent 20 on November 22nd, 2022. They were unable to resolve 21 process and procedure and -- and -- and Judge Miller 21 their differences with respect to the MSA, and so that's 22 may, should you all desire to have him, take a look at 22 why we're here today pursuant to this arbitration 23 this process or the -- the arbitrator's final hearing 23 clause, which states in the event an agreement cannot be 24 award once I complete that. 24 reached after a one-day mediation with a mediator, the 25 Okay. I think I took care of all the 25 mediator shall act as an arbiter of the issues and shall PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 3 (9 to 12) December 29, 2022 9 I resolve the issues by telephone conference or meeting of MR. HUEBINGER: Yes. the attorneys or mediator prior to the date of entry on THE ARBITRATOR: Because I'm not seeing -- all a date selected by the mediator, and each party shall I'm seeing is -- are you into your PowerPoint? share the cost of same equally. Because -- For clarity of the record, the mediator MR. HUEBINGER: Yes, I'm into my PowerPoint. referenced in the arbitration clause is Judge THE ARBITRATOR: Somebody is not flipping the Wooldridge, here today, and he will be acting as page. arbitrator. MR. HUEBINGER: Let me see here. It shows mine And for the record, defendants have no on -- it shows -- on mine, I see the Page 7. 0 objection to the enforceability of this arbitration 10 John, can you see my Page 7? 11 clause. We believe that it is enforceable over all ll MR. MOON: No. It says "Protected View" at the 12 claims relevant here today. 12 top, "Enable Editing," and then we've got an slide list 13 Now, as most on this call know, Texas law 13 on the left-hand side. It's just on your title page. 14 favors arbitration. It's not, per se, unconscionable; 14 MR. HUEBINGER: Let me try this. 15 and arbitration agreements in general are interpreted 15 THE VIDEOCONFERENCE TECHNICIAN: Let me know if 16 under traditional contract principles. 16 you need any help. 17 My understanding, based on plaintiff's 17 THE ARBITRATOR: While you're doing that, if 18 pre-arbitration briefing, is their primary argument 18 you would kind of just kind of go back — I hate for you 9 today will be that the MSA and the arbitration agreement 19 to repeat yourself, or ~ 20 are unconscionable; and so that will be my primary 20 MR. HUEBINGER: Can everyone see it now? Is it 21 discussion here today, which, in general, in our -- a 21 the first page? 22 contract is unconscionable if it's so one-sided under THE ARBITRATOR: You're on Page 7 now. 23 the circumstances that it is rendered unconscionable. 23 MR. HUEBINGER: Okay. This is unusual. Let's 124 And plaintiffs have a two-part burden in establishing 24 see here. 25 that. 25 MR. MOON: Yeah, I see Page 7 too. 10 12 First, they have to show procedural THE VIDEOCONFERENCE TECHNICIAN: I think it has unconscionability and substantive unconscionability. To to do when -- when you're sharing your screen, make sure determine procedural unconscionability, the arbitrator you're sharing just the PowerPoint program. will look at the contract formation prong, which, in (Discussion between Mr, Huebinger this instance, is the MSA, and determine whether there and the Videoconference Technician was a lack of meaningful choice for plaintiffs. held off the record.) With respect to substantive unconscionability, MR. HUEBINGER: Thank you, Your Honor, for that -- that relates to the fair he is of the underlying lettingme know about that. My apologies. So I'lljust MSA. It has to be shockingly gross -- sufficiently 9 really briefly go over what | just mentioned, which is 10 shocking or gross in order to be declared 10 that we're here today on the arbitration of Jones v. 11 unconscionable; so the plaintiffs both have to show that 11 BONY. 12 they lacked a meaningful choice and that the underlying 12 This case arises out ofa real property loan. 13 terms were shocking or gr 13 And just so I'mclear, everyone can see Page 2 here? 14 So first and foremost, Texas courts have the 14 So on August 30th, the parties, personally and 15 presumption that, absent proof of mental incapacity, a 15 through their counsel, participated in an in-person 16 party who signs an agreement understands what that 16 mediation with Your Honor; and as a result of this 17 agreement meant and what the words to that agreement 17 mediation, the parties executed and entered into a 18 meant. 18 settlement agreement that I'll refer to as the MSA, the 19 That's particularly the case as here, where 19 mediated settlement agreement, on August 30th, 2022. 20 both parties were represented by counsel, a point that 20 Pursuant to that mediated settlement agreement, 21 I'm going to raise several times. 21 there was a dispute of resolution provision by which if 22 And finally, just so we're awful on the same 22 any party had an issue with the MSA, then counsel can 23 page, there are five elements that an arbitrator -- 23 come together first to tryto resolve those issues ina 124 THE ARBITRATOR: Let me -- are you using the 24 mediation; and if they are unable to, they will then 25 PowerPoint? 25 exercise the right to trigger an arbitration, one-day PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 4 (13 to 16) December 29, 2022 13 15 arbitration, before Your Honor; and on November 22nd, arbitration, then I'm sure Judge Wooldridge will put us 2022, the parties entered into that second mediation. into aroom. They were unable to settle their differences But if you'll let Mr. Huebinger finish up his with respect to the MSA; and so we are here today to statement -- resolve those impasse under this arbitration provision. MARLA JONES: Okay. And with respect to the arbitration clause MR. MOON: -- that would be great -- itself, it reads "In the event an agreement can't be THE WITNESS: Okay. reached after a one-day mediation," which did occur on MR. MOON: -- and then if y'all need to talk to November 22nd, "the mediator shall act as an arbiter of me privately, we can ask the judge for that. 0 the issues and resolve the issues by telephone 10 Tm sorry to interrupt. I just felt like I 11 conference or a meeting of the attorneys and mediator 11 could handle that. I hope that was okay. 12 prior to the date of entry or ona date selected by the 12 MR. HUEBINGER: Absolutely. No -- no problem 13 mediator, and each party shall share the cost of the 13 at all. 14 same equally." For the record, the arbitrator and 14 THE ARBITRATOR: You may proceed. 15 mediator referenced here is Judge Wooldridge. 15 MR. HUEBINGER: With respect to 16 With respect to arrest arbitration agreements, 16 unconscionability, first and foremost, there's a 17 Texas law favors them, there's nothing unconscionable, 17 presumption that a person who signs an agreement, absent 18 per se, about them and they're interpreted under 18 proofof mental incapacity, understood it terms, 9 traditional contract standards. 9 understood what it meant with respect to the contract 20 Based on pre-arbitration briefing, my 20 itself; and on a broad basis, the elements of 21 understanding is the plaintiffs are arguing that the MSA 21 determining whether or not a contract is unconscionable 22 and its arbitration contract are unconscionable; and 22 are the arbitrator must look at, one, the entire 23 an-- an agreement is unconscionable ifit's so 23 atmosphere in which the agreement was made, which in 124 one-sided under the circumstances that a court will 24 this circumstance would be the MSA, and the -- any 25 render it unconscionable. 25 alternatives, if any available, to the parties at the 14 16 In order to establish this, a plaintiff arguing time the contract was made. unconscionability has both a procedural and a Three, the non-bargaining ability of either substantive unconscionability burden. To determine side; four, whether the contract was illegal or against procedural unconscionability, courts look at the public policy; and five, whether or not the contract is contract formation process and see if the plaintiff had oppressive or unreasonable. a lack of meaningful choice. With respect to settlement agreements, I cited In other words, the plaintiffs here today have this case because I thought it was somewhat -- it was to show that they lacked meaningful choice when forming 8 pretty on point. It's LeBlanc v. Lange. It's a Houston the MSA at issue in this arbitration. 9 Court of Appeals case, so jurisdictionally, it has a lot 10 With respect to substantive unconscionability, 10 of precedence over this matter; and it arose from a 11 that concerns fairness, and the arbiter must find that 11 business association that went wrong, 12 the terms of the MSA itself are sufficiently shocking or 12 The parties later resolved their issues via 13 gro to be rendered unconscionable, so plaintiffs 13 settlement agreement, but LeBlane argued it was 14 must show first a lack of meaningful choice with respect 14 unconscionable. And while the facts -- I don't want to 15 to the MSA; and secondly that its terms are shocking or 15 get too much into the facts. The Court itself found 16 gross. 16 that in the -- in rendering the settlement agreement, 17 MARLA JONES: Excuse me. When -- when -- when 17 LeBlane was represented by counsel and, through counsel, 18 do we -- if we have something to say, when -- to our -- 18 could have asked for revision of any offending terms; 19 our attorney, do we have to hang on and wait or -- or 19 and that even if LeBlanc thought he had no choice but to 120 did you say we can do that at any time? How would did 20 sign the agreement or that he had no bargaining ability, 21 that work? 21 there was no shocking facts suggesting procedural 122 I'm sorry to interrupt. 22 unconscionability. 23 MR. MOON: Marla, if you would, let me 23 And I reference this case for two reasons. 24 Huebinger finish; and then if you want to speak to me 24 First, both parties in the November 22nd, 2022, and the 25 before I -- I talk to Judge Wooldridge in the -- for the 25 August 30th mediation were represented by counsel, could PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 5 (17 to 20) December 29, 2022 17 19 have asked for revision of any offending terms to the unconscionable, we would ask that Your Honor enter an agreement; and while that's not a, per se, bar to order that basically says that this MSA is conscionable allowing an unconscionability argument, it is a very and that it is enforceable against the plaintiffs in high burden to establish that there was procedural or light of the circumstances. substantive unconscionability where both sides were And that concludes my presentation. My only represented by counsel; and secondly, to show that this one other small point I'd like to raise now, if Your is an objective metric when looking at whether or not Honor will permit, is that prior to the arbitration, there was substantive or procedural unconscionability. plaintiff submitted a lot of documents; and some of Whether or not plaintiffs individually felt those documents were related to the underlying lawsuit, 0 like they had no choice or that they had no bargaining 10 which are fine, but other documents seemed to deal with 11 ability, et cetera, it doesn't matter. It's whether or 11 other lawsuits, other circumstances that were not -- 12 not objectively speaking, they had no choice, no 12 where the plaintiffs were not involved or my client was 13 bargaining ability, et cetera. 13 not involved. 14 So with respect to arbitration agreements, the 14 So to the extent the plaintiffs are trying to 15 burden is even higher because mutual promises to 15 argue that it's unconscionable by using evidence of 16 arbitrate in and of themselves constitute sufficient 16 other matters in order to establish some kind of pattern 17 consideration and arbitration agreements are only 17 of bad behavior by one of my clients, I would object to 18 illusory if one party is able to avoid the promise to 18 that because the unconscionability elements are clear 9 arbitrate altogether, so if an arbitration provision 9 that the determination relates to the bargaining and 20 allowed one party to avoid arbitration while also, you 20 history of the two parties in this lawsuit, not anything 21 know, mandating that another party arbitrate, those are 21 that happened outside those confines, but that's -- 22 illusory contracts. 22 that's all Ihave to say, Your Honor. 23 ‘That's not what we have here. Both sides 23 THE ARBITRATOR: Okay. Mr. Moon, are you ready 24 agreed to arbitrate; and with respect to arbitration, 24 to proceed? 25 unequal bargaining power is not sufficient grounds for 25 MR. MOON: I think my clients wanted to meet 18 20 determining that a well-supported claim that an with me privately, Judge, if that would be acceptable. arbitration agreement is conscionable. We'll tryto briefly meet with them and address whatever There has to be some kind of fraud or other concerns they have. type of basis to argue that an arbitration agreement THE ARBITRATOR: Very well. Everybody stand that is mutually applicable is unconscionable. by. And -- and just to sum up, Your Honor, I'd like We'll go off the record, at this time, Rhonda. to go through the applicability of the unconscionability (Arecess was taken from 12:15 p.m. elements I referenced earlier. to 12:34 pm.) First, the entire atmosphere in which the 9 THE ARBITRATOR: Rhonda, you're back on the 10 agreement was made. The MSA was agreed to and signed 10 record. 1 during a mediation where both parties were represented 11 Let the record reflect all present when we last 12 by counsel and the mediation was conducted by a neutral 12 recessed are again present. Off the record, Mr. Moon 13 mediator. 13 entered the room. The Jones were still moving into the 14 The alternatives available to the parties of 14 room. You advised you wished to have your position, and 15 the mediation, plaintiffs had multiple alternatives, 15 then Mr. Jones wishes to address the arbitrator. 16 including proceeding with the -- with the litigation at 16 Did | correctly recite the discussion that 17 issue, and instead decided to enter into the MSA. 17 happened off the record? 18 As -- as I mentioned, both parties were 18 MR. MOON: You did, Your Honor. 19 represented by counsel, so there was no disparaging 19 And, Mr. Jones, is that still how you'd like to 20 non-bargaining ability of one party. Both parties were 20 handle it? 21 on equal footing at a neutral mediation, represented by 21 GUY JONES: Yes, sir. 22 counsel; and finally there's nothing in the contract 22 THE ARBITRATOR: All right. You may proceed, 23 that's illegal, against public policy, oppressive, or 23 sir. 24 unreasonable; and because each of these elements lean 24 MR. MOON: Okay, Your Honor. 25 towards the contract being -- the MSA being 25 I'm making an argument on behalf of my clients PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 6 (21 to 24) December 29, 2022 21 23 regarding the unconscionability of the underlying I believe that that satisfies the second prong mediated settlement agreement as well as the arbitration of the unconscionability argument as well, which would clause. be the substantive unconscionability, which focuses on Specifically, my clients would like the -- the fairness of the contract in light of the the -- the judge to understand that there was a lot that circumstances. led up to where we ended up in mediation. Specifically, So in light of the circumstance that brought there was a mediated settlement agreement previously them there, the option to return to court was not one entered into by the parties that did not bear their that was valid, it's one where they would have been held signature that required them to pay the Bank of New York 9 to a MSA that was entered into without their 0 10 signature and, according to Mr. and Mrs. Jones, without 11 There was a dispute over that with regardto 11 their approval on the part of their attorney. 12 a-- amotion for summary judgment filed by Bank of 12 So in light of that, that is their argument 13 New York, and -- that we had a hearing on that led us to 13 with regards to both procedural and substantive 14 the second mediation. 14 unconscionability ofthe underlying MSA and why they're 15 Mr. and Mrs. Jones were under the impression 15 asking to be returned to court as opposed to entering an 16 that they were to be held to the [J mediated 16 arbitration award based upon the mediated settlement 17 settlement agreement, the original mediated settlement 17 agreement. 18 agreement, if they did not reach a second agreement. 18 And -- 19 Their argument is that due to the fact that 19 THE ARBITRATOR: I'm sorry. Before you go on, 20 they believed they had no alternative, they had no -- no 20 Ijust want to make sure I'm clear. 121 other way forward but to agree, that that would speak 21 ‘There was a previous mediation that they 22 both to the procedural unconscionability as well as the 22 entered into. Was I the mediator in that one, the J 23 substantive unconscionability; specifically, that 23 MR. MOON: You were not, Your Honor. 124 procedurally speaking, if they had not reached an 24 So just to clear that up, basically, they 25 agreement that day, then they would have been back in 25 had -- they had counsel prior to my involvement in the 22 24 court under the [J mediated settlement agreement cas ‘The case been going on quite a while. They had that they did not agree to and that their attorney had mediated the case previously and entered into a mediated signed on their behalf, but that they did not sign, and settlement agreement that was very similar to the one then regarding the substantive unconscionability of it, that we entered into but for [I instead of the fact that their attorney -- their argument was that That mediated settlement agreement was -- my their attorney had gone into this agreement with their clients' argument to the court when Bank of New York benefit or understanding or -- or acknowledgment; that filed a motion for summary judgment on that -- on that they were put in a position where it was -- it was both original MSA, the one that Your Honor was not involved procedurally and substantively unfair. 9 with, the one that I was not involved with -- my 10 Furthermore, my clients would like Your Honor 10 client's argument was that this was entered into by 1] to understand that they did not realize that the motion 11 their attorney and -- and bore only their attorney's 12 for summary judgment had not been ruled upon or signed 12 signature, did not bear their signature, and 13 by Judge Miller, and they subsequently learned that 13 specifically had -- we filed affidavits with the court 14 there was no signed order by Judge Miller, and that that 14 showing that Mr. Jones had left the mediation prior to 15 would weigh towards the unconscionability as well. 15 the MS -- MSA being entered, and that Ms. Jones felt 16 They feel as though they had no legitimate say 16 extremely pressured by her attorney and was the only 17 or stake in the -- in the mediation that happened 17 remaining person in -- involved in that mediation. 18 previously with -- with Your Honor, Judge Wooldridge, 18 So we went -- we attended a motion for summary 19 and that they were, in effect -- maybe not forced into 19 judgment and hearing on that with Judge Miller. Judge 20 an agreement, but that they lacked that other option 20 Miller had given some indications as to how -- how he 21 that would satisfy the procedural unconscionability 21 was going to rule and what his thoughts were about it, 22 argument and then secondly, get in the light of the case 22 and that led us to Your Honor because we had sort of 23 as a whole in regards to their first attorney and how 23 a-- I think Judge Miller -- we had to do additional 24 the mediated settlement agreement -- the original 24 briefing on that that Elizabeth and I both did; and then 25 mediated settlement agreement occurred. 25 I think in the -- in the midst of that, we had -- PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 7 (25 to 28) December 29, 2022 25 27 Elizabeth and I, my clients, and -- and Bank of New York it, and that, we found later to be not true because had all kind of agreed let's go to mediation again and there was never anything signed by Judge Miller. see if we can't get this resolved, and so that is sort He did not sign the order stating that we were of the procedural aspect of how we got to Your Honor, bound by anything, WHICH we did not, at the time we and so that's the -- I hope that helps. signed the -- at your mediation, we thought that it was THE ARBITRATOR: Yes, it does. either Jj or I That's -- that's a no-brainer; but And for - just for -- to be clear, this second we really were not even held to the [JJ at that point. mediation that came back, the case did settle, resulting 8 Tf we'd have known that Judge Miller had not in an MSA signed by all counsel and all parties with a 9 signed anything, that we were not bound by anything, we 0 settlement of J versus [J which was in the first 10 would have taken our chances in court. That is what 11 one; is that correct? 11 we've been wanting from day one, was to finally be able 12 MR. MOON: That is accurate, Your Honor. 12 to go into a courtroom and present all of our evidence 13 THE ARBITRATOR: So there was a negotiation 13 showing that they had absolutely no right to foreclose 14 even off of the first mediation where, arguably, there 14 to start with. 15 was an agreement reached, but Mr. Jones was not present 15 But that never got -- gets brought up. That is 16 when it came back and mediated, and then further 16 never allowed into the conversation, which is the basis 17 negotiation with all parties resulted in a further 17 of the whole lawsuit. The basis for the lawsuit is they 18 reduction agreement from [jj to IM] Okay. I got it. 18 want to foreclose and after -- 9 All right. 19 (Marla Jones and Guy Jones speak 20 Mr. Jones, Mrs. Jones, Iam here. This is your 20 simultancously.) 21 opportunity. Glad to hear whatever you have to say. 21 MARLA JONES: -- having to do a lot of research 122 GUY JONES: Good afternoon, Your Honor. 22 ourselves because but not Mr. Moon, but Mr. Lane, the 123 On the first mediation, it was so lopsided that 23 previous attorneys, they just let all the -- all the 124 I just walked out because I just -- I -- I mean, there 24 facts and all the evidence showing that they did not 25 was nothing that we got to say init. The only thing we 25 even have the right -- they owed us money at the time 26 28 talked about is what the bank wanted. They never would they foreclosed. let -- mean, we never got to say anything. None of that was ever presentedto the court or And when it comes -- and when it comes to the to the mediators. The -- the mediator and the judge had second one, the second one basically was just like the not even had the chance to look at all the evidence that first one. All we went straight to was talking about this was a fraudulent lawsuit way back in 2010. money. We never got to say one word. Straight to the (Marla Jones and Guy Jones speak money thing, you know; and even in that, I don't think simultaneously.) we're 100 percent responsible for all this mess anyway. MARLA JONES: We have been -- we have gone, as ‘They gotta be responsible in some kind of way, 9 the gentleman who started this -- he said that we -- 10 but how come we -- you know, we're 100 percent. I don't 10 there have been multiple suits on it. He's right, but 11 understand that part of it. You know, the second one -- 1] they were never able to get a judge to get our house 12 and the only reason -- they just wear you out; but after 12 taken away. 13 you walk out of there, you start reading what -- what 13 GUY JONES: They got our insurance taken away 14 negotiation is in the dictionary and everything. 14 and everything. 15 Well, what happened was not a negotiation, is 15 MARLA JONES: Everything that -- that they 16 all can say. I mean, I -- you know, all we wanted to 16 tried to do was not enough to do it; and now it sounds 17 have was our say, ask them some questions. We never got 17 like they could possibly foreclose because of a piece of 18 to ask Bank of America nothing. 18 paper that was signed without any judge or mediator ever 19 MARLA JONES: Bank of New York. 19 getting to see the real basis. 120 GUY JONES: Bank of New York, we never got to 20 (Marla Jones and Guy Jones speak 21 ask them anything. Straight to mediation about the 21 simultaneously.) 122 money. Come on. That just doesn't seem right to me. 22 MARLA JONES: This is not just -- this isn't 23 MARLA JONES: ‘Then it was basically either sign 23 just what the bank thinks we owe them. They owed us 124 this one or you're responsible for the first one, so 24 money at the time they foreclosed, and they've got a 25 basically we had -- the option was this is it, this is 25 whole lot more fighting power than we used to have PLANET DEPOS 888.433.3767 | WWW.PLANETDEPOS.COM Transcript of Arbitration 8 (29 to 32) December 29, 2022 29 31 because we're a little bit smarter now thanks to having to make it very clear what my practice is, mediation, to go through all this. arbitration, and visiting judge. It has never been fair from the beginning. We Since I'm a visiting judge, I cannot take -- I might actually have a fair shot at going into a trial cannot have clients, I cannot practice law, I cannot now because we do know so much. We took control of the appear in court unless I'm wearing a black robe. If I case and we went and we -- we went through the court were your judge today or your arbitrator today, I would records and we got all -- everything that was going on, be a decision-maker; but I'm not your judge, I'ma and now if we had to present our case, they would not, I mediator, which means I'm a facilitator; and a don't believe, have a chance because of everything