"First payment is what made us think we were prosperous, and the other nineteen is what showed us we were broke.^[FN1]

"One of the greatest disservices you can do a man is to lend him money he can't pay back."^[FN2]

"Neither a borrower nor lender be^[FN3];

For loan oft loses both itself and friend,

And borrowing dulls the edge of husbandry."^[FN4]

I. Background

Over the past several years this Court has received a plethora of confirmation of arbitration award petitions. These special proceedings commenced by a variety of creditors or their assignees seek judgments validating previously issued arbitration awards against parties who allegedly defaulted on credit card debt payments. In most of these cases the respondents have failed to answer. It is almost never apparent, from the filings, what type of process was effectuated on the debtor to notify them of the arbitration proceedings, whether the debtor participated at all in the underlying arbitration, what evidence, if any, the arbitrator considered, what claims the arbitrator ruled upon, and what figures the arbitrator used in calculating each award.

While the modern day creditor seeks no pound of flesh as did Shakespeare's Shylock in the "Merchant of Venice," the judiciary continues to provide an important role in safeguarding [*2]consumer rights and in overseeing the fairness of the debt collection process. As such, this Court does not consider its function to merely rubber stamp confirmation of arbitration petitions. A trial court does not have a "mandatory, ministerial duty to grant motion[s] for default judgment on every properly verified complaint on which there has been default; [the] court retains [the] discretionary obligation to determine whether [the] applicant has met th[eir] burden of stating [a] prima facie cause of action,"^[FN5] and the same is true for arbitration confirmations pursuant to CPLR Article 75. Specifically, "an arbitration award may be confirmed upon nonappearance of the respondent only when the petitioner makes a prima facie showing with admissible evidence that the award is entitled to confirmation."^[FN6] If petitioner fails to establish a prima facie case the confirmation petition must be denied.^[FN7]

Despite the absence of objections by most of the defaulting respondents, in the interest of justice, this Court chooses to analyze the prima facie showing of each of the petitioners' applications. As a result of such undertaking, the Court often discovers fatal procedural and substantive defects inherent within the petitions.

The Court is aware of how the market for the sale of debt currently works, where large sums of defaulted debt are purchased, by a small number of firms, for between .04 and .06 cents on the dollar. The incentive therefore, for the firm purchasing the debt, is to herd these cases into arbitration and churn out papers seeking their confirmation as quickly as possible. The entire industry is a game of odds, and in the end as long as enough awards are confirmed to make up for the initial sale and costs of operation the purchase is deemed a successful business venture. However, during this process mistakes are made, mistakes that may seriously impact consumers and their credit. The petition at bar is a specimen replete with such defects and the Court takes this opportunity to analyze the filing in detail, in hopes to persuade creditors, not simply to take more care in dotting their "i"s and crossing their "t"s in their filings, but to assure a minimum level of due process to the respondents.

Why is this debt sold for such a cheap price? Certainly part of the reason is the poor prospects of payment these creditors expect from the defaulting individuals given their past delinquent payment history, while another part is undoubtably to avoid additional costs associated with debt collection. Further yet, is the simple fact that the proof required to obtain a judgment in the creditor's favor is lacking, usually as a result of poor record keeping on the part of the creditor. This decision reviews applicable New York cases on confirmation of arbitration awards, and provides additional principles to guide the process. In doing so, it is expected that judicial economy will be served, and more importantly, that the rights, particularly due process, of all parties will be adequately addressed and protected.

II. Facts

Currently before the Court is a renewed motion by Petitioner, MBNA, America Bank, N.A. to confirm, pursuant to CPLR § 7510, an arbitration award issued against Respondent on March 17, 2006 in the amount of $9,459.70. This motion was previously denied without [*3]prejudice to renew upon submission of a certificate of conformity for included affidavits, and proper copies of the notice to arbitrate and the arbitration award in compliance with CPLR § 7506(b) .

Although no date is provided, according to MBNA America Bank, N.A. (hereafter, "MBNA"), the Respondent, Paul E. Nelson entered into a contract with MBNA for a revolving credit debt and subsequently used that credit line for purchases and/or cash advances. Thereafter a dispute arose as to Nelson's obligation to repay the debt generated under the credit card account. MBNA alleges that the initial contract included a binding arbitration clause to which it now seeks to hold Nelson. In support of their petition MBNA attaches: (1) an affidavit from Robert Winzinger an employee of MBNA which states, Winzinger is familiar with the business practices of MBNA, that the Respondent entered into a credit card agreement with MBNA for a revolving credit card, and that Nelson used the credit card for purchases and/or cash advances; (2) a copy of the "Credit Agreement Additional Terms and Conditions," which provides in relevant sections, that MBNA may "amend this agreement at any time," that "any claim or dispute by either you or us against the other ... arising from or relating in any way to this agreement ... shall be resolved by binding arbitration," and that "this agreement is governed by the laws of the State of Delaware;" (3) a copy of the "Notice of Arbitration" which instructs the recipient that "AN ARBITRATION CLAIM HAS BEEN FILED AGAINST YOU" and which gives the recipient 30 days to respond from receipt of service to exercise a number of options including submitting a written response, requesting an in-person, on-line or telephone hearing and lists the amounts claimed due: $7,313.20 for the principal balance, plus interest in the amount of $333.40 (and 16% thereafter) and attorney fees of $1,096.98; (4) a copy of proof of service of process by a process server of the arbitration claim which states that the "declarant served the above described documents upon Paul E. Nelson, by then and there personally delivering 1 true and correct copy(ies) thereof, by then presenting to and leaving the same with John Doe refused to provide name, Roommate M W Brown hair 40-45 YOA 6' 220LBS ;" (5) a copy of the code of procedure for the National Arbitration Forum; and (6) a copy of a signed arbitration award with 10 lines of findings and an ultimate award in favor of MBNA for a total amount of $9,459.70.

III. Discussion

Pursuant to CCA § 206 , the New York Civil Court has the jurisdiction to confirm arbitrators' awards, subject to the Court's limited monetary jurisdiction of $25,000.00. CPLR § 7502 requires that initial applications arising out of an arbitrable controversy be brought as a special proceeding. It is important to emphasize that an arbitrator's award is of little use to a petitioner without such judicial intervention, unless the parties voluntarily comply with the award, because "arbitral awards are not self-enforcing."^[FN8] There is good reason for this, because although the United States Congress has expressed general favor towards arbitration^[FN9], courts retain a crucial oversight function , albeit a narrow one, with regard to the enforcement of such awards.^[FN10] [*4]

The Court recognizes the allure that a summary process such as arbitration provides to a large commercial entity that holds hundreds of thousands, if not millions, of contracts for revolving credit. As is expected, on such a large scale, consumers sometimes default on payments. The theory goes, if creditors were to file an action for every such instance of nonpayment with the courts judicial economy may not best be served. Yet the Court notes, in the end, if the creditor must resort to a confirmation of arbitration proceeding to enforce the arbitrator's award, has judicial economy been served? Notwithstanding, a preference for judicial economy and swiftly rendered arbitration awards should not outweigh the alleged defaulter's right to due process.

In the face of concerns for compromised process, the court in MBNA America Bank, NA v. Straub^[FN11] provided a 4-pronged framework for scrutinizing arbitration awards utilizing legal precepts of New York law and the Federal Arbitration Act^[FN12] (hereafter, "FAA"). Straub found that the requirements for confirmation under the CPLR are that (1)"a written agreement to arbitrate must be included within the petition," (2)"the binding nature of the credit card agreement must be established by the petition," (3) "the petitioner must show that service of notice of the arbitration session and notice of the award was in compliance with New York's statutes," and (4) that any "information about the parties' prior forays into the judicial arena or actions within the arbitration process" be provided for Court consideration.^[FN13] Professor Siegal has noted that:

[b]ecause credit card debt proceedings of this kind have been held to be

interstate commerce transactions, the Federal Arbitration Act is implicated.

But so is New York's own arbitration act, Article 75 of the CPLR. The line

between the two - i.e., trying to decide for which issues the one act applies

and for which issues the other - is sometimes a difficult question.^[FN14]

The courtin Straub, recognized that the FAA applies to confirmation of arbitration petitions when interstate commerce is implicated, and thecourt determined that the "same factors considered in a state law analysis are appropriate to a review of a petition to confirm an arbitration award under the FAA standards," noting only a few occasions where differences between the CPLR and the FAA must be addressed.^[FN15] Since, "although the Federal Arbitration Act preempts inconsistent State law as to arbitration agreement 's enforceability , it preempts only those provisions of State law that actually conflict with provisions of the Federal Statute."^[FN16] This decision proceeds by analyzing the MBNA petition under the Straub test and where appropriate, raising additional guidelines and considerations to be considered in the analysis.

Choice of law provision

Although the CPLR and the FAA guide the confirmation petition, the agreement contains the following choice of law provision, "[t]his Agreement is governed by the laws of the State of Delaware (without regard to its conflict of laws principles), and by any applicable federal law," it is clear that, if this agreement is binding on the parties, Delaware law is to govern the agreement. However, the confirmation petition is brought in New York and the question of whether there [*5]was sufficient agreement to the terms and conditions, including the provision to arbitrate, in the first place must be analyzed under New York law. If no agreement is found it would be enigmatic to apply a state's law never agreed to by the parties.

IV. Pre-Straub considerations

Before reaching the four pronged Straub test a court faced with a confirmation of arbitration award petition must determine the legal status of the petitioner, and whether it has standing and is properly registered to bring such a proceeding.

Was the petition brought timely?

Under CPLR § 7510 and the FAA, 9 U.S.C. § 9, the court shall confirm an award upon application of a party only if made "within one year after its delivery to him."^[FN17]

Is the petitioner authorized to bring a special proceeding in a New York court?

The legal status of Petitioner, specifically whether or not it is authorized to do business in New York in accordance with New York Law must be pled. Under BCL § 1312 "A foreign corporation ... shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state."^[FN18] Petitioner must plead that it is a corporation authorized to do business in New York and provide proof to that effect. Similarly if petitioners allege some exception to the requirement^[FN19] that exception must be alleged and proof to support such allegation provided in the petition.

Is the proper party bringing the action?

It is imperative that an assignee establish its standing before a court, since "lack of standing renders the litigation a nullity."^[FN20] It is the "assignee's burden to prove the assignment" and "an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment."^[FN21] Such assignment must clearly establish that Respondent's account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner. Even if the arbitrator's award was rendered in favor of the assignee and not the original assignor, such underlying facts are relevant for court review, as an arbitrator's award rendered in the face of such lack of proof of assignment may constitute a manifest disregard of the law. Therefore, Petitioners must establish such assignment in their petition.

As an aside, the Court wishes to note that it is not uncommon for confirmation of arbitration awards submitted to this court to include 3 or 4 separate assignments of the same debt, and never in these petitions is it alleged that the debtor was ever notified of such assignment. Because multiple creditors may make collection efforts for the same underlying debt even after [*6]assignment, for any variety of reasons (i.e. mis-communication or clerical error) failure to give notice of an assignment may result in the debtor having to pay the same debt more than once or ignoring a notice because the debtor believes he or she has previously settled the claim. Further, debtors are often left befuddled as they get the run-around from a panoply of potential creditors when inquiring about their defaulted accounts, during which time they lose the ability to negotiate payments with the current debt owner (whoever that may be at the time) and therefore incur additional fees and penalties. Courts in other states, reviewing general principles of assignment, have noted that notice to the debtor is an explicit requirement to a valid assignment.^[FN22] Addressing these concerns in the context of secured transactions, UCC 9-406 (a) provides that a debtor can discharge a debt with the assignor until authenticated notification that the debt was assigned is provided to the debtor. Upon such notice of assignment and as an additional protection, a debtor may, under UCC 9-406 (c) request reasonable proof of the assignment and until such proof is provided payments made to the assignor will count towards the discharge of the obligation. The Court is not aware of any similar safeguards in place with regard to assignment of retail credit debt, and questions whether such lack of notice constitutes at worst a deceptive business practice under General Business Law 349, or at least an invalid assignment, although the Court will save this issue for another day.

V. Straub Analysis

A. Written Agreement

First and most importantly, the petition must allow the Court to find a writing sufficient to constitute a binding agreement to arbitrate under CPLR 7501.^[FN23] This is because "[a] party is not to be compelled to surrender [their] rights to resort to the courts, with all of the safeguards, unless they have agreed in writing to do so."^[FN24] As Straub noted : "[a]bsent some grant of authority from the person who is to be bound by the award, 'the officious intermeddlers who gave their opinion on the matter would be no more arbitrators than any of the thousands of men and women who pass through New York's Grand Central Station each morning'."^[FN25] The alleged agreement provided by Petitioners does in fact include a section purporting to limit Petitioners and Respondents to arbitration in the event either has a claim against the other. The question then remains: Is this agreement binding on the parties?

Specific Provision Allowing for Court Confirmation

Under the FAA, 9 U.S.C. § 9, in order for a court to have the jurisdiction to confirm an arbitration award the parties must have explicitly given that power to the courts and separately agreed that judgment shall be entered upon the award in the same agreement authorizing the arbitration.^[FN26] The Act provides that confirmation of an arbitration award is appropriate only where the parties "in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court..." The arbitration section of the contract at bar does include an arbitration provision which states "judgment upon any arbitration award may be entered in any court having jurisdiction." [*7]

B. Binding Nature of the Written Agreement

While the Court is not aware of credit card companies resorting to carrier pigeons, transcendental meditation, or sky writing to reach potential customers, their marketing arsenal is nonetheless impressive. The typical credit card offer starts with a solicitation by the card issuer whether it be mailings, telephone calls, radio, television or magazine advertisements, or active internet websites that advertise to potential credit card holders the available terms (i.e. introductory, subsequent and balance transfer Annual Percentage Rate (APR) rates, membership fees, cash back features, flyer mile and point redemption programs, and/or any other special terms or promotions). The user is either "pre-approved" for credit or must make an application for credit approval. Such an application is merely a response to the initial solicitation. Once the potential user is approved, a credit card and the terms and conditions the user is expected to abide by arrive in the mail. This constitutes the issuer's firm offer, which the consumer must accept or reject.^[FN27]

The US Supreme Court in First Options of Chicago v. Kaplan^[FN28] discussed how courts should review the question of whether arbitrators or courts have the primary power to decide if parties agreed to arbitrate. The court found that "just as the arbitrability of the merits of a dispute depends on whether the parties agreed to arbitrate the dispute, the question, who has the primary power to decide the arbitrability' turns upon what the parties agreed about that matter." The court stated that "[w]hen deciding whether the parties agreed to arbitrate a certain matter (including arbitrability) courts generally...should apply ordinary state-law principles that govern formation of contracts."^[FN29] The arbitration section of the alleged contract which petitioners provide states "any claim or dispute ... including Claims regarding the applicability of this arbitration and litigation section... shall be resolved by binding arbitration." Applying Kaplan and considering this included clause, the Court must determine using state-law contract formation principles^[FN30] whether both parties "objectively revealed an intent"^[FN31] to be bound by this statement as well as the entire contract.

Actual or Constructive Awareness of Contractual Terms

The unique nature of the credit card industry where terms are often "agreed" to unilaterally, via credit card use, by no means obfuscates ordinary contract law principles that the terms of the offer be fully disclosed before agreement to those terms can occur. Neither is this principle affected by application of the FAA.

The notion that the terms of a valid offer be communicated to the offeree, regardless of whether the contract is unilateral, bilateral or otherwise, before they can become binding is well settled law.^[FN32] Therefore, absent a definite and certain offer outlining the terms and conditions of credit card use with the user's actual signature, the Petitioner, in a confirmation of arbitration award petition, has the burden of establishing the binding nature of the underlying contract, including any allegedly applicable arbitration clauses, which entails proof, at a most basic level, that the debtor was provided with notice of the terms and conditions^[FN33] to which Petitioner now [*8]seeks to hold Respondent.^[FN34]

Petitioner must tender the actual provisions agreed to, including any and all amendments^[FN35], and not simply a photocopy of general terms to which the credit issuer may currently demand debtors agree. For example, Petitioner's Exhibit A which is labeled "Credit Card Agreement and Additional Terms and Conditions" lacks Respondent's signature. Neither does it contain a date indicating when these terms were adopted by MBNA nor how the terms were amended or changed, if at all, over the years appear anywhere on the document. Furthermore, the contract does not contain any name, account number or other identifying statements which would connect the proffered agreement with the Respondent in this action. In fact, petitioners appear to have attached the exact same photocopy, which as noted is not specific to any particular consumer, to many of its confirmation petitions. While on its face there is nothing necessarily unusual about a large commercial entity such as MBNA providing a standard form contract that all credit card consumers agree to, the burden nevertheless remains with MBNA to tie the binding nature of its boiler-plate terms to the user at issue in each particular case and to show that those terms are binding on each Respondent it seeks to hold accountable^[FN36] (the Respondent's intent to be bound after notice of terms is established can be shown via card use^[FN37]).^[FN38] The fact that MBNA issues a particular agreement with particular terms with the majority of its customers is of little relevance in determining the actual terms of the alleged agreement before this Court, if not linked directly to respondent in some way shape or form. Just because a petitioner provides a photocopy of a document entitled "Additional Terms and Conditions," certainly does not mean those terms are binding on someone who could have theoretically signed a completely different agreement when they were extended credit. Whether the physical card itself or some solicitation agreement with Respondent's signature referenced the terms and conditions^[FN39], or whether the terms were made readily accessible to Respondent by e-mail or the internet, and Respondent was in fact aware of this, may all be relevant to an inquiry into constructive notice but such notice must still be established. At bar, MBNA Bank has failed to establish that the provided terms and conditions were the actual terms and conditions agreed to by Nelson. As such, applying Kaplan, the Court does not find objective intent on the part of the Respondent to be bound to the contractual statements proffered by MBNA requiring the question of arbitrability to be decided by the arbitrator or that arbitration is the required forum for either party to bring claims against the other.

While these deficiencies of proof are fatal to Petitioner's claim, such a problem is not without a solution. Since the credit card issuer is the party in the best position to maintain records of notification it may provide an affidavit from someone with knowledge of the policies, procedures and practices of its organization affirming (1) when and how the notification of the original terms and conditions was provided^[FN40], including any solicitations or applications containing the Respondent's signature, (2) what those terms and conditions were at the time of the notification, (3) whether the mandatory arbitration clause, and any other additional provisions Petitioner now treats as binding, were included in the terms and conditions of card use at the time Respondent entered into the retail credit agreement, and if they were not, then when they were added, as well as a statement certifying that (a)such addition was made pursuant to the applicable [*9]law chosen by the parties to apply to the agreement, not limited to but especially including mandatory opt-out requirements, and (b) a statement indicating that upon reasonable and diligent inspection of the records maintained by the Petitioner, and to the best of Petitioners' knowledge Respondent never opted out of said clause, and the basis for this determination. The use of such affidavits to support confirmation of arbitration awards is not novel.^[FN41]

At bar, MBNA does provide the affidavit of Robert Winzinger, with an appropriate certificate of authority. The affidavit alleges that Respondent entered into a contract for a revolving credit card, provides the account number, and states that the contract included a provision for arbitration. However, "[c]ourts are reluctant to credit a naked conclusory affidavit on a matter exclusively within a moving party's knowledge."^[FN42] Winzinger's affidavit is deficient in that it does not establish when and by what means Nelson would have received, been made aware of and agreed, to the terms to which MBNA now seeks to hold him responsible.

Certificates of Authority and Conformity

If an affidavit is signed and notarized outside of New York State it must be accompanied by a certificate of conformity before the Court will consider it in admissible form.^[FN43] And depending on who took the acknowledgments and proofs a certificate of authority may also be required.^[FN44] The above requirements are not waived if Petitioner is an assignee. Such proof still must be offered by someone with personal knowledge of the practices and procedures of the assignor where the debt originated.

C. Service of Process

In every confirmation of arbitration award the Court must undertake a dual inquiry into notice. First, was the respondent properly notified of the arbitration claim, and, second, was the petition to confirm the arbitration award properly served.

Notice of Claim to Arbitrate

It is the Petitioner's obligation to plead whether and how service of process was made.^[FN45] In the current petition MBNA alleges that "The Code of Procedure of the National Arbitration Forum dictates the manner of service of the claim upon the non-moving party." Rule 6 of the NAF "Rules and Procedures,"^[FN46] provided in MBNA's papers, which governs service of claims, deems service effective if done in one of seven methods. Service by methods 1, 2, and 3 require a written acknowledgment or signature by Respondent or other recipient; condition 4 allows for service under the Federal Rules or the procedural rules of Respondent's jurisdiction, in this case the CPLR; condition 5 allows service pursuant to agreement of the parties; condition 6 by receipt confirmed e-mail; and 7 upon the filing of a response with the forum. No signed acknowledgment or receipt is provided, no separate mailing was made to Respondent's home or place of business in accordance with CPLR § 308(2)'s substituted service requirements, no facts sufficient to establish that the "John Doe" with whom a copy of the claim was left and labeled as [*10]Respondent's "Roommate" was a resident of the premises under FRCP § 4(e)(2) and no receipt confirmed e-mail is proffered by MBNA. In MBNA America Bank v. Pacheco^[FN47] the court, construing these same NAF notice rules found that the petitioner did not follow the NAF notification procedure, outlined in rule 6B, to which they contractually bound themselves. The court held that "since there has been no signed receipt of delivery submitted by the petitioner as required by the National Arbitration Forum the petitioner's motion to confirm the arbitration award must be denied for lack of proper service upon the respondent... with leave to conduct a new arbitration proceeding following proper service." Presently, it is not clear which rule under 6B of the NAF procedural rules MBNA believes it satisfied when it left a copy of the arbitration claim with his "roommate." It appears it has satisfied none. As another indication of the level of care, or lack thereof, that gets put into preparing these filings, the Court wishes to point out that the process server prepared his declaration of service, for the notice of the arbitration claim, and signed the document, swearing to its accuracy, under the penalty of perjury "under the law of the State of Maryland." The action was brought in New York, and the alleged agreement is governed by Delaware law. Interestingly, Maryland law is in no way implicated in this action. Perhaps service was effectuated at Camden Yards during a Yankees-Orioles game?

Notice of Petition to Confirm

Accompanying the filing of the petition to confirm an arbitration award must be proof of service of process of the petition on Respondent pursuant to CPLR § 308. A non-military affidavit must also accompany proof of service if the court is to enter judgment upon the non-appearance of the defaulting debtor.^[FN48] It is "well known, federal and state service member Civil Relief Acts require that, prior to issuance of a default judgment, the plaintiff or petitioner must submit to the court affidavits establishing that any individual defendant or respondent is not in active military service."^[FN49] The plain language of 50 App. U.S.C.A. § 521 states "any civil action or proceeding in which the defendant does not make an appearance... the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." This Court finds no cognizable reason why such a requirement would not apply to confirmation of arbitration petitions. Confirmation of arbitration petitions are brought as a special proceeding. Once petitioner has established its prima facia case a confirmation in the face of a non-appearing respondent, is akin to a default judgment. A non-appearing respondent loses the right to raise any defenses on the issue just as any defaulting party would on a garden variety non-special procedure claim. Judge Vitaliano, writing for this Court, in Citibank, N.A. v. McGarvey,^[FN50] described the non-military affidavit requirement as "a modern expression of legislative policy dating as far back as the Civil War to protect military service personnel from the entry of judgments against them in civil actions without their knowledge and to insure that those in active military service are able to meet fully the defense needs of America." A judgment [*11]confirming the arbitration award is no less potent, and has no less effect than would any other default judgement of this Court and, as such, all of the reasoning for requiring non-military affidavits in the face of default are equally applicable in a confirmation of arbitration in which the debtor makes no appearance and does not file any response papers with the Court. Further, the affidavit must sufficiently establish facts that will allow the Court to evaluate the merits of the affidavit and the investigation of the respondent's default must take place subsequent to the actual default.^[FN51]

D. Additional Considerations

Form of Arbitration Award

CPLR § 7507 provides, in relevant part, that an arbitration "award shall be in writing, signed and affirmed by the arbitrator making it within the time fixed by the agreement, or, if the time is not fixed, within such time as the court orders" with such affirmation or jurat being required for its enforcement.^[FN52] Black's Law Dictionary defines an affirmation as "a solemn declaration made under penalty of perjury." In the case at bar, the actual arbitration award has no jurat and is not declared to be made under penalty of perjury. A perfunctory and conclusory statement that the award was "affirmed" is of little value if not accompanied by an actual certified affirmation. The affirmation must include a declaration by the arbitrator attesting to the accuracy of the award under penalties of perjury.

Arbitration Hearing Information

Straubnoted that "special considerations may arise if any party presents information about the parties' prior forays into the judicial arena or actions within the arbitration process."^[FN53] The Court pointed out that "a party who participated in the arbitration may have limited rights to request subsequent judicial relief" as opposed to a non-participating party since generally "a party who did not participate in the arbitration may raise a lack of arbitrability as a defense to a petition to confirm an arbitration award."^[FN54] Since the past judicial and arbitral history of the parties may prejudice the rights of the respondents such information is relevant to the Court, and a properly plead petition to confirm should disclose the place of arbitration, and whether the parties attended.

Specificity of Awards

The Court recognizes that a reasoned decision is not required as part of an arbitral award.^[FN55] Courts nonetheless have an obligation to ascertain whether the arbitrator ruled on a matter not submitted or, improperly submitted to them or mistakenly calculated the award.^[FN56] If information such as what claim(s) were before the arbitrator, and what calculations the arbitrator applied to the figures before him or her is not provided, how can the Court determine if the arbitrator inappropriately included attorney's fees, for example, or ruled on some issue not properly before the forum.^[FN57] Similarly, how could a Respondent collaterally seek to modify a mistakenly [*12]calculated award under CPLR § 7511 (c)(1) or an award where the arbitrators ruled against their authority "upon a matter not submitted to them" under CPLR § 7511 (c)(2). The FAA "focuses on whether the arbitrators had the power, based on the parties' submissions or the arbitration agreement, to reach a certain issue, not whether the arbitrators correctly decided that issue."^[FN58] The award itself or an accompanying affidavit should provide the Court with, at a minimum, what claims were submitted and decided, where the authority for deciding each separate claim lies and a summary of the calculations undertaken to arrive at the award the Petitioner seeks to confirm.

Checklist

The Court has reduced and appended the statutory and case law requirements reviewed in this decision into two checklist short form order decisions to help provide guidance and a sense of unity and consistency among the judges of the Civil Court of New York. One provides grounds for dismissal without prejudice (i.e. deficience that may potentially be cured by Petitioner after leave is granted to renew). The other lists grounds for dismissal with prejudice.

V. Conclusion

The Petition is dismissed without prejudice, due to the failure of the Petitioner to provide the following proof:

Allegation and proof of the Petitioner's legal status, and whether it is authorized to do business in New York, in accordance with New York law;

Complete copy of the actual retail credit contract, including any subsequent amendments, alleged to have been entered into between the Petitioner and the Respondent;

Affidavit establishing Respondent received notice of the alleged agreement, including any subsequent amendments;

Objective proof that the alleged agreement, and any amendments, issued by Petitioner are binding on Respondent;

Allegation and proof that the arbitration award was affirmed;

Submission of the calculations used by the arbitrator to arrive at the final award, the specific claims submitted by Petitioner for arbitration and the claims ruled upon by the arbitrator;

Current and complete non-military affidavit.

The foregoing constitutes the Decision and Order of the Court.

Staten Island, NYHON. PHILIP S. STRANIEREJudge, Civil Court

ASN by _______ on _______________.

The Petitioner commenced this proceeding pursuant to CPLR §7510 to confirm an arbitration award rendered against the Respondent on ___________ in the sum of $___________.

The Petition is unopposed.

The Petition is dismissed without prejudice, due to the failure of the Petitioner to provide the following proof, indicated by a check in the box preceding the numbered paragraph:

1. Allegation and proof of the Petitioner's legal status, and whether it is authorized to do business in New York, in accordance with New York law. (See BCL § 1312);

2. Complete copy of the retail credit contract, including any subsequent amendments, alleged to have been entered into between the Petitioner and the Respondent (must include proof that the agreement provided was the actual agreement with Respondent and not simply an undated, unsigned form outlining general terms and conditions Respondent's signature or, in the case of a unilateral contract, an affidavit as described in item 3 below, if properly submitted, would meet this requirement);

3. Affidavit establishing Respondent received notice (either actual or constructive) of the underlining agreement, including any subsequent amendments. (See Kurz v. Chase Manhattan Bank USA, N.A., 319 F.Supp.2d 457 [2004]; see also MBNA America Bank, NA v. Straub, 12 [*13]Misc 3d 963 [2006]);

4. If Petitioner alleges a unilateral contract (i.e. one unsigned by Respondent): objective proof (i.e. use of the credit extended after notice of terms, for e.g. monthly statements) that the underlining agreement, and any amendments, issued by Petitioner are binding on Respondent. (See Geha v. 55 Orchard Street, LLC, 29 AD3d 735 [2006]);

5. Place of arbitration, type of arbitration hearing (for e.g. document, in-person, on-line, telephone) conducted, and whether the Respondent participated in the arbitration;

6. If debt was assigned: copy of a valid assignment between the Petitioner and the assignor. (See Citibank (South Dakota), N.A. v. Martin, 11 Misc 3d 219 [2005]);

7. Copy of notice to arbitrate;

8. Allegation and proof that the notice to arbitrate was served via an authorized method of service. If a specific arbitration forum is referenced in the alleged agreement the forum's service rule that Petitioner believes it satisfied must be pled. (See MBNA America Bank, N.A. v Pacheco, 12 Misc 3d 1994(A));

9. Place of arbitration, type of arbitration hearing (for e.g. document, in-person, on-line, telephone) conducted, and whether the Respondent participated in the arbitration;

10. Copy of the notice of arbitration award, signed by the arbitrator, with an affidavit of service of said award on the Respondent. (See CPLR § 7507);

11. Allegation and proof award was affirmed. (See MBNA Am. Bank, N.A. v Anastasio, 2006 NY Slip Op 09249);

12. Submission of the calculations used by the arbitrator to arrive at the final award, the specific claims submitted by Petitioner for arbitration and the claims ruled upon by the arbitrator;

13.If the arbitration clause was an amendment to the original alleged agreement: allegation and support that the underlying agreement was amended properly under New York law, or in the [*14]case of an enforceable choice of law provision, under the referenced state's applicable law, to include such an arbitration clause, including all mandatory opt out requirements (see Johnson v. Chase Manhattan Bank USA, N.A.2 Misc 3d 1003(A)), and if properly amended that such clause, as amended, is binding upon Respondent;

14. If petition includes supporting affidavits signed and notarized outside New York State: a certificate of conformity for each included out of state affidavit. (See Ford Motor Credit Co. v. Prestige Gown Cleaning Service Inc. , 193 Misc 2d 262, 264 [2003] ; CPLR 2309[c]; Raystin v. Discover Bank, N.A. 6 Misc 3d 48 );

15. Current and complete non-military affidavit (see 50 App. U.S.C.A. § 521) , note the affidavit must sufficiently establish facts that will allow the court to evaluate the merits of the affidavit and that the investigation of the respondent's default took place subsequent to the actual default. (See U.S. Bank v. Coaxum, NY Slip Op. 51384(U) at 1 [2003]);

16. Proof of service of the confirmation of arbitration award petition.

The Petition is unopposed.

The Petition is dismissed with prejudice, due to the failure of the Petitioner failure to (indicated by a check in the box preceding the numbered paragraph):

1. File application for confirmation within one year after its delivery to Petitioner (see CPLR § 7510 ; FAA, 9 U.S.C. § 9 );

2. Allow for a judgment by the Court of the arbitration award in the underlying agreement (see FAA, 9 U.S.C. § 9 );

3. Establish the Respondent was bound by the underlying agreement to submit to arbitration (see Castagna & Son, Inc. v. Allan Michel Plumbing, 94 AD2d 736 [1983]);

4. Establish a prima facie case for confirmation after being given the opportunity by the Court to provide additional support and proof (see Worldwide Asset Purchasing, LLC v. Chris Karafotias, 9 Misc 3d 390, [2005]);

RULE 6. Service of claims, Responses, Requests, and Documents.

A. After being notified by the Forum that a Claim has been accepted for filing in accord with Rules 7 and 12, and a file number has been provided, the Claimant shall promptly serve on each Respondent one (l) identical copy of the Initial Claim Documents, containing the Forum file number, together with a Notice of Arbitration substantially conforming to Appendix A of this [*19]Code, including notice that the Respondent may obtain a copy of the code, without cost, from the Claimant or the Forum.

B. Service of Initial Claims and Third Party Claims shall be effective if done by:

(1) United States Postal Service Certified Mail Signed return receipt or equivalent service by the national postal service of the country where the Respondent resides or does business;

(2) Delivery by a private service with the Delivery receipt signed by a person who Received the Documents;

(3) Delivery with a Written acknowledgement of Delivery by the Respondent or a Representative;

(4) In accord with the Federal Rules of Civil Procedure of the United States or the rules of civil procedure of the jurisdiction where the Respondent entered into the Arbitration Agreement;

(5) In accord with any agreement of the Party served;

(6) For Claims related to or arising from an E-commerce Transaction, Delivery to the e-mail address of the Party served, Receipt confirmed; or

(7) Service is complete upon Receipt by the Party served or the filing of a Response with the Forum by a Respondent.