OF JUDGMENT: 05/10/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. ROGER T.
CLARK, TRIAL JUDGE
ATTORNEY FOR APPELLANT: JASON GRAEBER
ATTORNEY FOR APPELLEE: REGINALD PAUL HARRION
Glory Rigsby, an elderly Gulfport resident on Social Security
disability, alleges that she is the victim of a "debt
relief scheme" perpetrated by American Credit Counselors
Inc. ("ACCI"), a Florida corporation with its
principal place of business in Boca Raton, Florida. Rigsby
filed a complaint against ACCI in county court, alleging that
she had paid ACCI more than $1, 000 and received nothing in
return. ACCI moved to dismiss the complaint based on a forum
selection clause contained in its "Program Guidelines,
" which Rigsby had received and signed. The county court
granted ACCI's motion to dismiss, and the circuit court
affirmed. For the reasons discussed below, we hold that
ACCI's forum selection clause is unenforceable.
Therefore, we reverse and remand the case to the county
AND PROCEDURAL HISTORY
On August 23, 2013, Rigsby entered into an
"Agreement" with Henry Portner P.C. ("Portner
P.C."), a New Jersey professional corporation with its
offices in Coconut Creek, Florida. Henry Portner
("Portner") is a Florida attorney who is not
licensed to practice in Mississippi. He is the president and
"managing attorney" of Portner P.C. The Agreement
refers to Rigsby as the "Client" and to Portner
P.C. as the "Law Firm" or the "Attorney."
The Agreement provides in part:
1.Retention of Services. Subject to the terms and
conditions set forth herein, Client hereby requests that
Attorney provide information, recommendations, and an action
plan regarding Client's current debt obligations, with
the express understanding that Attorney does not hold himself
out for representation on any issues involving the
interpretation and/or application of any specific state law.
At all times, Law Office shall employ counsel licensed in
Mississippi, to facilitate the achievement of client
objectives. In addition, Client understands that Attorney may
use associate attorneys, legal assistants and other third
parties (supervised by Attorney at all times) to assist in
rendering services under this Agreement. If Attorney
identifies an FDCPA violation for which client desires
representation, Attorney shall provide said representation at
no out of pocket cost to Client. In the event of a
settlement, Attorney shall be entitled to forty percent (40%)
of the remaining settlement, along with reimbursement for any
costs advanced by Attorney.
2. Attorney Fees. Client shall pay Law Office
Seventy Five Dollars ($75.00) upon [C]lient's receipt and
implementation of Attorney's analysis and recommended
action plan. Attorney shall provide a specific action plan
consistent with [C]lient's goals. Client shall also pay a
monthly retainer fee equal to Twenty Nine Dollars ($29.00)
per month for so long as this Agreement remains in effect.
Said fee is to keep Law Office on retainer and include
ongoing representation and supervision of any recommended
action plan. Ongoing monthly retainer is optional and
[C]lient may discontinue representation at any time. . . .
3. Attorney-Client Relationship. Henry Portner, P.C.
is a Florida based law office and is not associated with any
governmental agency. Other than as specifically provided
herein, Attorney is not providing any other services to the
Client. Particularly, this Agreement does not include any
legal representation before any tribunal, including federal
or state courts of any jurisdiction or representation in
front of any governmental agency. Trial, or other state,
federal, or governmental issues shall require Client to
execute a separate Retainer Agreement. On such issues,
Attorney may, but is not obligated to, refer Client to
another attorney considered "Of Counsel" who is
licensed in Mississippi or to independent counsel of
Client's choosing in his/her state. It is clearly
understood and agreed between the parties hereto that
Attorney shall not pay any of Client's creditors nor
assume any debts on behalf of Client.
. . . .
5. Arbitration Agreement/Jurisdiction. Law Office
and Client hereby agree to settle any and all claims,
disputes or controversies arising out of or relating to the
employment of Attorney herein by final and binding
arbitration before a neutral Arbitrator, pursuant to the
rules of the American Arbitration Association. Any
determination by the Arbitrator shall be final and binding.
To the extent it may be necessary, the final and binding
decision of the Arbitrator may be filed with a court of
competent jurisdiction. The parties agree that any
arbitration brought with respect to this Agreement shall be
brought exclusively in The State of Florida, County of Palm
Beach, and the parties irrevocably submit to the jurisdiction
of Palm Beach County, Florida.
Rigsby signed the Agreement and was given a one-page
"Outline of the Proposed Action Plan." The plan
called for Rigsby to pay $116 per month for forty-eight
months to pay off about $4, 000 in unsecured debt to
creditors such as Wal-Mart, Old Navy, and Chevron.
On or about September 10, 2013, Rigsby signed a document
provided by ACCI entitled "Program Guidelines" that
provides in part:
REASON FOR THIS PROGRAM: The Client(s) have certain ongoing
financial obligations to certain creditors and desire ACCI to
assist in obtaining an effective Debt Management Program
("Program"). ACCI will provide certain payment
plans, work-ups, negotiations, counseling and other services.
1. SERVICES OFFERED: By joining this
Program, you authorize ACCI and its authorized agents, to
discuss your financial information and negotiate with any of
your listed creditors. You will deliver the monthly payments
under the Debt Management Program to ACCI by automatic
withdrawal (ACH), money-order, electronic fund transfer or
other forms of payment acceptable to ACCI. ACCI shall forward
your monthly payments as disclosed under the Program to your
creditors. Your monthly payment has been established in the
amount of $116 per month consisting of 7 creditor(s) based
upon the information furnished by you . . . . Payments shall
begin on 10/06/13 and be payable on the 6th day of each and
every month thereafter until the Program is full satisfied.
2. REPRESENTATIONS BY YOU: . . . ACCI shall
not be responsible for any garnishments, judgments, liens,
repossessions, lapse/cancellation in insurance coverage, or
any other direct or indirect or ...