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US Court of Appeals for the Third Circuit/Amicus
Baher Azmy/Seton Hall Center for Justice
The ACLU-NJ, along with AARP, the Institute for Social Justice, Seton Hall Center for Justice, and other anti-predatory lending organizations, submitted a friend-of-the-court brief on behalf of a woman who is challenging a foreclosure action against her. The case centers on a mandatory arbitration clause in a sub-prime lending mortgage contract. The provisions of the clause allow the mortgage owner to sue the woman for foreclosure in state court but require the woman to bring any counterclaims to arbitration, thus requiring her to litigate in two forums (which she, like most sub-prime borrowers, can't afford). Third Circuit law requires that, in determining whether provisions of a contract are unconscionable, the context of the agreement must be considered. Therefore, amici are writing to explain the facts about sub-prime & predatory lending. We further explain that, while mandatory arbitration provisions are not always unconscionable, one that contains provisions that effectively result in an inability of the borrower to defend against foreclosure is unconscionable.
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