Declarants Lacked Personal Knowledge
If you want to compel arbitration, it sure helps to have a signed arbitration agreement, as defendant Wells Fargo discovered in Bachenheimer v. Wells Fargo Bank, N.A., B251980 (2nd Dist. Div. 5 July 21, 2014) (Turner, Mosk, Mink) (unpublished).
Plaintiff, who suffered from traumatic brain injury, invested her savings with Wachovia, and lost those savings. Because Wells Fargo took over assets from Wachovia, Wells Fargo was sued. The trial court denied Wells Fargo’s petition to compel arbitration, because Wells Fargo was unable to prove the existence of an arbitration agreement.
Wells Fargo did, however, produce declarations establishing that the ordinary course of business required the investor to sign an arbitration agreement, before an account would be opened. Wells Fargo conceded that the original documents had been lost or destroyed.
The declarations were not good enough to establish an arbitration agreement, because the declarants lacked first-hand knowledge that plaintiff had signed an arbitration agreement.
Thus, the order denying the motion to compel arbitration was affirmed.
Coffey v. Beverages & More, a case that I posted about on April 14, 2014 dealing with an on-line signing procedure, is another example of a defendant failing to establish that the arbitration agreement had been signed.