Funding Circle USA, Inc. v. Robert Bigos & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0648, Funding Circle USA, Inc. v. Robert
Bigos & a., the court on June 7, 2018, issued the following order:

Having considered the brief and reply brief, the memorandum of law, and
the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendants, Compass Systems & Programming, Inc. and its
president, Robert Bigos, appeal an order of the Superior Court (Anderson, J.)
granting summary judgment in favor of the plaintiff, Funding Circle USA, Inc.
On appeal, the defendants do not challenge the trial court’s determinations
that there is no genuine dispute of material fact, and that the plaintiff is
entitled to judgment as a matter of law. See RSA 491:8-a, III (2010). Instead,
they contend that the trial court should have dismissed the case pursuant to
RSA 508-A:3 (2010) for failure to comply with a forum selection clause.

The purported “forum selection clause,” relied upon by the defendants,
provides, in its entirety, as follows:

CALIFORNIA CHOICE OF LAW; EFFECT OF INVALIDITY
OF PROVISIONS. THE INTERPRETATION, SERVICING AND
ENFORCEMENT OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND ANY AND ALL MATTERS IN DISPUTE
BETWEEN BORROWER AND LENDER, WHETHER (A) ARISING
OUT OF OR RELATING TO THIS AGREEMENT, (B) ARISING FROM
ALLEGED EXTRA-CONTRACTUAL FACTS PRIOR TO, DURING, OR
SUBSEQUENT TO THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, FRAUD, MISREPRESENTATION, NEGLIGENCE OR
ANY OTHER ALLEGED TORT OR VIOLATION OF THE CONTRACT,
OR (C) OTHERWISE ARISING OUT OF OR RELATING TO THE
RELATIONSHIP OF BORROWER AND LENDER, SHALL BE
GOVERNED BY, CONSTRUED, AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, EXCLUDING THE CHOICE OF LAW PROVISIONS
THEREOF, REGARDLESS OF THE LEGAL THEORY UPON WHICH
SUCH MATTER IS ASSERTED OR THE LOCATION OF
BORROWER. BORROWER UNDERSTANDS AND AGREES THAT
(D) LENDER IS LOCATED IN AND CONDUCTS ITS BUSINESS IN
CALIFORNIA, (E) LENDER MAKES ALL CREDIT DECISIONS FROM
LENDER’S OFFICE IN CALIFORNIA, (F) THE LOAN IS MADE IN
 CALIFORNIA AND NO BINDING CONTRACT WILL BE FORMED
UNTIL LENDER RECEIVES AND ACCEPTS THE NOTE IN
CALIFORNIA, (G) BORROWER’S PAYMENTS ARE NOT ACCEPTED
UNTIL RECEIVED BY LENDER IN CALIFORNIA, AND (H) THE
LOAN IS MADE UNDER AND PURSUANT TO LENDER’S LICENSE
AS A FINANCE LENDER UNDER THE CALIFORNIA FINANCE
LENDERS LAW (LICENSE NO. 6054785), WHICH LAW PROVIDES
AMONG OTHER THINGS THAT LENDER IS EXEMPT FROM THE
LIMITS ON INTEREST OF THE CALIFORNIA USURY LAW.
BORROWER UNDERSTANDS THAT BORROWER’S AGREEING TO
THE APPLICABILITY OF CALIFORNIA LAW IS A MATERIAL
FACTOR IN LENDER’S WILLINGNESS TO ENTER INTO THIS
AGREEMENT. If any provision in this Agreement is deemed
unenforceable or illegal by a court of competent jurisdiction, then
the offending words will be stricken and all remaining provisions
shall remain in full force and effect.

The trial court concluded that, contrary to the defendants’ argument, this
provision “is a choice of law provision that would likely require this Court to
apply California law but does not deprive this Court of jurisdiction.”

We review the trial court’s interpretation of the contract de novo. See
McDonough v. McDonough, 169 N.H. 537, 541 (2016). A “forum selection”
clause is a provision of a contract “establishing the place (such as the country,
state, or type of court) for specified litigation” of future disputes between the
contracting parties, whereas a “choice of law” clause “designate[s] the
jurisdiction whose law will govern” such disputes. Black’s Law Dictionary 294,
770 (10th ed. 2014). Cf., e.g., Fog Motorsports #3 v. Arctic Cat Sales, 159 N.H.
266, 267 (2009) (quoting both a forum selection clause and a choice of law
clause in a contract). Nothing in the plain meaning of the language used in the
above-quoted provision, see McDonough, 169 N.H. at 541, establishes any
place where future disputes will be litigated. Rather, the provision merely
specifies that California law will govern any future disputes. Accordingly, the
trial court correctly concluded that the provision is a choice of law provision,
and not a forum selection provision. RSA 508-A:3, therefore, does not apply.

In light of this order, the plaintiff’s request that we dismiss the appeal is
moot.

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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