FACTS 1. The case of Lori A. Mendoza v. TT of Colorado arose out of an offer to purchase a 2010 Nissan Rogue from South Colorado Springs Nissan (SCSN), the trade-in of a 2004 BMW owned by the Lori A. Mendozas' mother, Sylvia Mendoza and the subsequent rettuh of the 2010 Nissan Rogue by Lori A. Mendoza to SCSN. 2. On June 25, 2010, documents were prepared for the signature of the Lori A. Mendoza s' mother, Sylvia Mendoza as Buyer and Lori A. Mendoza as Cobuyer. Lori A. Mendozas mother, Sylvia Mendoza as Buyer or Seller of the trade-in signed certain documents, including a Car Buyer's Offer and Purchase Option Contract, attached for your information as Exhibit A, a Credit Application attached your information as Exhibit B, a Trade Title form, attached your information as Exhibit C, a Trade-In Information Sheet, attached your information as Exhibit D, a Power of Attorney for a Motor Vehicle pertaining to the 2004 BMW trade-in, attached your information as Exhibit Lori A. Mendoza signed a Credit Application attached your infomation as Exhibit and an Initial Privacy Notice attached your information as Exhibit G, all as part of a transaction for the purchase ofa 2010 Nissan Rogue, serial Sylvia Mendoza and Lori A. Mendoza requested SCSN to delete the extended service and maintenance contract contained in Exhibit A. SCSN then prepared a second Car Buyer's Offer and Purchase Option Contract without charges for the extended service and maintenance contracts, attached your infomation as Exhibit H, a Disclosures Required as Part of a Motor Vehicle/ Powersports Vehicle Sales Contract, attached your infonnation as Exhibit I and a Retail Installment Sale Contract, attached your information as Exhibit J. Exhibits H, I and were then signed by Sylvia Mendoza as Buyer or Purchaser. Lori A. Mendoza was permitted to keep the 2010 Nissan while SCSN made attempts to obtain financing. 3. Included in each version ofthe "Car Buyer's Offer and Purchase Option Contract", Exhibit A and Exhibit H, each signed by Sylvia Mendoza as Buyer, is the following agreement to settle disputes arising out of or related to the contract by binding arbitration: DISPUTE RESOLUTION AGREEMENT WAIVER OF JURY TRIAL If any dispute, controversy, or claim between the Purchaser and the Dealer, Dealer's ofncers, agents, or employees, or Dealer's surety bonding company arising out of or relating to any aspect of this vehicle purchase transaction and contract cannot be settled through direct discussions, the parties agree to settle the dispute in an amicable manner by mandatory and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. It is the intent ofthe Purchaser and Dealer that this arbitration provision applies to all contract, tort statutory, regulatory, and deceptive trade practice claims arising from or related to this vehicle purchase transaction, contract and any other claim which may be brought by Purchaser against Dealer. The site of any arbitration or litigation shall be in the County and State where the dealership resides. If any controversy or claim is determined, for any reason, to be ineligible for arbitration then that controversy or claim shall be decided by a judge of a court of competent jurisdiction, without a jgy. Purchaser knowingly, willingly, and voluntarily waives Purchaser's right to trial by jury for all controversies and claims. (Italics added) The undersigned thither warrants and agrees that Dealer shall not be liable for any consequential damages, including, but not limited to, damages for inconvenience, annoyance, and mental anguish, damages to property, damages for loss of use, loss of income, or any other incidental damages. 4. The Lori A. Mendoza was permitted to take the 2010 Nissan home on June 25, 2010. The right to retain the vehicle was conditioned on the ability to obtain financing. Sylvia Mendoza as Buyer initialed and signed a "Disclosures" document, Exhibit I, which stated that the vehicle would be delivered prior to payment, and that if financing could not be arranged the purchase would be cancelled and that buyer might be required 2 to immediately retum the car, and pay for damage and mileage. Sylvia Mendoza acknowledged that under these circumstances the dealer was permitted to recover the 2010 Nissan. See attached Exhibit I. 5. Further, in each version of the Car Buyer's Offer and Purchase Option Contract, Exhibit A and H, there is a "Bailment" section providing that the undersigned purchaser (Sylvia Mendoza) acknowledged that the vehicle was being furnished as an accommodation subject to the credit approval for non-recourse financing. See attached Exhibit A and H. 6. Lori A. Mendozas' complaint recites that she obtained her rights in the 2010 Nissan, with her mother, on June 25, 2010. Thus, Lori A. Mendoza admitted that she was bound bythe documents signed, at the request of the SCSN, by her mother Sylvia Mendoza, including the arbitration clause signed by Sylvia Mendoza. 7. SCSN's attempt to obtain financing under the terms of Exhibit and was subject to the verification ofthe information provided by Sylvia Mendoza and Lori A. Mendoza. Lori A. Mendoza was permitted to keep the 2010 Nissan while SCSN attempted to obtain financing approval and on August 13, 2010 Lori A. Mendoza returned the 2010 Nissan to SCSN with 7557 miles on it. 8. Lori A. Mendoza brought her federal complaint on August 27, 2010, contravening the arbitration clause as part of this vehicle transaction and the documents signed, at the request of Lori A. Mendoza, by Lori A. Mendoza's mother Sylvia Mendoza as Buyer. 9. Although Lori Mendoza's signature did not appear on the June 25, 2010 documents or the revision deleting the charges for the extended service and maintenance contract, this was a single transaction for the same vehicle, and Lori Mendoza's complaint explicitly relied on the purchase of the vehicle on June 25, 2010 when she 3 completed and signed a credit application, Exhibit F, signed the initial privacy notice "In connection with your transaction Exhibit G, and len the dealership with the Nissan Rogue. See Complaint, paragraphs 7-10, (alleging purchase occurred on June 26, 2010 and that her rights to the vehicle arose on that date). Thus, both Sylvia Mendoza and Lori A. Mendoza were bound by the contracts that were prepared by SCSN and signed by Sylvia Mendoza, including the duty to arbitrate any and all disputes arising against the dealership. 10. The documents arising from this vehicle transaction as signed by Sylvia Mendoza, at the request of Lori A. Mendoza, and set up for the signature of Lori A. Mendoza, but unsigned by Lori A. Mendoza, coupled with Lori A. Mendoza's use ofthe vehicle from June 25, 2010 to August 13, 2010 and for 7557 miles did not relieve Lori A. Mendoza as a co-buyer nor does it relieve her from the arbitration clause approved, at the request of Lori A. Mendoza, by her mother Sylvia Mendoza as part of this transaction, REQUESTED RESPONSE TO QUESTIONS RAISED BY LORI A. MENDOZA I. Federal courts favor arbitration. There is a strong federal policy favoring arbitration for dispute resolution, and this policy "requires a liberal reading of arbitration agreements." Moses H. Cone Mem'l Hosp. v, Mercug; Constr. Corp., 460 U.S. 1 (1983); Gatx Manag. Servs., LLC v. Weakland, l7l F. Supp, 2d 1159, 1162 (D. Colo. 2001). This means that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Moses H. Cone Mem'l Hosp., 460 U.S at 24~25; Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1514 (10'h Cir. 1995) (stating that "[a]ll doubts are to be resolved in favor of arbitrability") (citations omitted). District courts must defer to 4 arbitration "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers V. Warrior GulfNavigation Co., 363 U.S. 574, 582-83 (1960); Gatx Manag. Servs., LLC, 171 F.'Supp. 2d at 1 162. Notwithstanding this strong federal policy, however, "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Tech. Inc. v. Communications 475 U.S. 643, 648 (1986); Gatx Manag. Sews., 171 F. Supp. 2d at 1162. As a general rule, therefore, "the parties' intentions control, but those intentions are generously construed as to issues of arbitrability." Mistubishi Motors Corp. v. Soler Plymouth, lnc., 473 U.S. 614, 626 (1985); Gatx Manag. Servs., LLC, 171 F. Supp. 2d at 1162. The party seeking to compel arbitration and stay the proceeding has the burden of establishing that the matter is subject to arbitration. Gatx Manag. Servs., LLC, l71 F. Supp. 2d at 1162. II. Arbitration of the matter before the Court was appropriate On June 25, 2010, documents were prepared for the signature ofthe Plaintiffs' mother, Sylvia Mendoza as Buyer and Plaintiff Lori A. Mendoza as Cobuyer ofa 2010 Nissan Rogue. Plaintiffs mother, Sylvia Mendoza as Buyer, or Seller of the trade-in signed certain documents, including a Car Buyer's Offer and Purchase Option Contract, Exhibits A and to Motion to Compel Arbitration. Exhibits H, I and were then signed by Sylvia Mendoza as Buyer or Purchaser. Plaintiff Lori A. Mendoza was permitted to keep the 2010 Nissan while SCSN made attempts to obtain financing. Included in each version of the "Car Buyer's Offer and Purchase Option Contract", Exhibit A and Exhibit H, each signed by Sylvia Mendoza as Buyer, is the following agreement to settle disputes arising out of or related to the contract by binding arbitration: 5 DISPUTE RESOLUTION AGREEMENT WAIVER OF JURY TRIAL lf any dispute, controversy, or claim between the Purchaser and the Dealer, Dealer's officers, agents, or employees, or Dealer's surety bonding company arising out of or relating to any aspect of this vehicle purchase transaction and contract cannot be settled through direct discussions, the parties agree to settle the dispute in an amicable manner by mandatogg and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. It is the intent ofthe Purchaser and Dealer that this arbitration provision applies to all contract, tort, statutory, regulatory, and deceptive trade practice claims arising,/rom or related to this vehicle purchase transaction, contract and any other claim which may be brought by Purchaser against Dealer. The site of any arbitration or litigation shall be in the County and State Where the dealership resides. If any controversy or claim is determined, for any reason, to be ineligible for arbitration then that controversy or claim shall be decided by a judge of a court of competent jurisdiction, without a jug. Purchaser knowingly, willingly, and voluntarily waives Purchaser's right to trial by jury for all controversies and claims. (Italics added) The undersigned further warrants and agrees that Dealer shall not be liable for any consequential damages, including, but not limited to, damages for inconvenience, annoyance, and mental anguish, damages to property, damages for loss of use, loss of income, or any other incidental damages. Exhibits A and to Motion to Compel Arbitration. Plaintiff Mendoza challenges the enforceability ofthe contracts with SCSN and the applicability of these arbitration provisions to her claims against A. Whether the contract is void for failure of a condition precedent must be decided by the arbitrator. Plaintiff Lori A. Mendoza had asked the Court to determine the validity of the palties' sales contract based on the dealership's inability to obtain funding. This was not for the court to decide, however, as both the United States Supreme Court and the Tenth Circuit have held that a challenge to the validity of contract containing an arbitration clause is to be determined by arbitration. Sg Buckeye Check Cashing, lnc. v, Cardegpa, 126 S. Ct. l204, 1209 (U.S, 2006) (holding that claim that contract was void should be determined by the arbitrator, and not the court, emphasizing that "unless the challenge is 6 to the arbitration clause itseli; the issue ofthe contract's validity is considered by the arbitrator in the first Monument Builders of Greater Kansas City, lnc. v. American Cemetery Ass'n 891 F.2d 1473 (l0'h Cir, 1989) ("Where a contract affecting interstate commerce contains an arbitration provision and does not provide otherwise, the FAA requires the question of the contract's validity as a whole to be submitted to arbitration In considering whether an arbitration provision is binding on the parties, it is severed from the rest of the contract Because under the FAA this court cannot examine the validity of the contract as a whole, we must treat the contract as valid when analyzing an arbitration provision") (citations omitted); Todd Habennann Constr. Co. v. Epstein, 70 F. Supp. 2d 1170, 1175 (D. Colo. 1999) (holding that the issue of whether conditions precedent to arbitration have been met is to be submitted to the arbitrator rather than the court). B. The law favors arbitration and the arbitration clause in this case was broad. If the Court had chosen to address the validity of the contract and its arbitration provision, the law favored arbitration, particularly in cases involving broad arbitration provisions such as the one here. The arbitration provision at issue in this case clearly stated that it applies to "any dispute, controversy or claim between" Plaintiff and Defendant or Defendant's officers, agents or employees. Exhibits A and H. Moreover, it clearly states that it "applies to all contract tort, statutory, regulatory, and deceptive trade practice claims arising #om or related to this vehicle purchase transaction, contract and any other claim which may be brought by Purchaser against Dealer." This was a very broad arbitration provision. Brown v. Coleman Co., 220 F.3d 1180, 1184 (1O'h Cir. 2000) (noting the arbitration clause which covered "all I7 disputes or controversies arising under or in connection with this Agreement" was broad because it covered not only those issues arising under the employment contract but also those issues with any connection to the contract). The strong presumption favoring arbitrability 'applies with even greater force' when such a broad arbitration clause is at issue." Indus. v. Sutter Corp., 179 F.3d 861, 871 (lO'h Cir. 1999) (stating that arbitration clause covering "any controversy, claim, or breach arising out of or relating to this Agreement is a 'broad' "[A]l1 claims with 'a significant relationship to the [Agreement,] regardless ofthe label attached' to them, arise out of and are related to the Agreement." Likewise, all claims With a significant connection to the parties' relationship that were created by the agreement are subject to arbitration. ge; Manag. Servs., LLC, 171 F. Supp. 2d at 1163. In detennining the scope of an arbitration clause, the courts focus on the factual allegations in the Complaint rather than the legal causes of action asserted. Mitsubishi Motors Cog. v. Soler lnc., 473 U.S. 614, 622 n.9, 625 n.13 (1985); Gatx Manag. Servs,, LLC, 171 F. Supp. 2d at 1 163. C. Although Lori A. Mendozas' "offer" might not have been accepted, the same page contained a Purchase Option Contract which allowed Lori A. Mendoza to take the car home pending funding of the loan. When interpreting an agreement, each word in the document must be given a meaning. See Traders State Bank Glen Elder Kan. V. Continental Ins. Co., 448 F.2d 280 (10th Cir. 1971); U.S. Fidelity Guar. Co. v. Budget Rent-A-Car Systems, Inc., 842 P.2d 208 (Colo. 1992) ("Each word in an instrument is to be given meaning if at all possib1e.") (emphasis in original). Here, the Lori A. Mendoza sought to negate the existence of a contract signed by her mother, Sylvia Mendoza, entitled the "Car Buyer's Offer and Purchase Option Contract." See Exhibits A and H.. By its very title it is clear 8 that the document is not only an offer, but also a purchase option "contract" which allowed Lori A. Mendoza to take the vehicle home pending funding. The same document contains a "Bailment Agreement" in which it is "acknoWledge[] that said vehicle is furnished merely as an accommodation to purchaser, pending, and /or sub ect to purchaser's credit approval for non-recourse tinancin or lease by a dealer approved lender or lessor." Sylvia Mendoza and Lori A. Mendoza agreed to this section. Sylvia Mendoza and Lori A. Mendoza further agreed that unless the purchase transaction was completed, they had no rights in the vehicle, and that the vehicle would be returned to the dealership within a certain amount of time. Without the authority granted in the Bailment Agreement, Lori A. Mendozas' act of taking a car without payment would be a mere theft or conversion. Obviously, there was an agreement between Lori A. Mendoza and the dealership, even if it did not rise to a full purchase agreement. Lori A. Mendoza s' right to take home the vehicle depended on the very same document which contains the arbitration agreement at issue. Lori A. Mendoza did deny the statement in the document signed by Sylvia Mendoza that if funding were not obtained, the "offer" would not be accepted and the "transaction" would not be "consummated." Additionally, nothing in this provision negates the Purchase Option Contract which gave Lori A. Mendoza the right to take the vehicle home pending funding of the purchase. Further, nothing in this statement invalidates the arbitration agreement, which by its terms applies to "vehicle purchase transactions" without requiring that they be "consummated" D. Although a sales contract may not have been formed, the documents read together show that the parties participated in an unconsummated "Vehicle purchase transaction" within the meaning of the arbitration clause. 9 When documents are signed at the same time and pertain to the same subject, they are to be read together. In re Villa West Assocs., 146 F.3d 798 (10th Cir, 1998) ("Where two or more instruments are executed by the same parties at or near the same time in the course ofthe same transaction and concern the same subject matter, they will be read and construed together to determine the intent, rights, and interests of the Here, the documents show a transaction, albeit unsuccessful, between the buyer, Sylvia Mendoza, the co-buyer, Lori Mendoza and the dealership to purchase a 2010 Nissan Rogue. The documents show that the Sylvia Mendoza and Lori A. Mendoza put down $1000 toward the purchase, and that the Lori A. Mendoza was permitted to take the vehicle home pending tunding. In the document labeled "Disclosures," Exhibit I, Sylvia Mendoza initialed that she knew the contract might not be formed, and if not, the dealership would be owed $50 per day and $0.50 per mile for use of the car, and that this amount would be deducted from the deposit. This clearly showed some form of agreement, as part of the "vehicle purchase transaction." Considering the "Purchase Option Agreement," which includes the "Bailment Agreement," together with the terms in the Disclosures document, it is clear that certain binding agreements were made during the vehicle purchase transaction even if they did not succeed in forming a binding sales contract. As discussed above, documents are to be read in a manner that gives meaning to every word. The Arbitration agreement distinguishes between a "vehicle purchase transaction" and a "contract" in describing the source of the claims which were subject to arbitration. Thus the arbitration clause itself does not require the fonnation ofa contract, but instead covers claims that might arise from the parties' attempt to form a contract. If the intent was to limit arbitration only to fully fonned contracts, there would be no reason 10 for the "vehicle purchase transaction" language. Instead, this language shows that claims stemming from the parties' transaction are arbitrable, even if the transaction was not "consummated" by a full vehicle purchase. See, e.g. Zink v. Merril Pierce Fenner Smith, Inc., 13 F.3d 330, 332 (10th Cir. 1993) (holding that arbitration clause covering disputes arising out of the contract or business between the parties was broad enough to cover transactions that had occurred two years before signing the contract). E. Section 10 U.S.C. 987 does not apply to a loan for the purchase of a vehicle secured by that vehicle. Lori A. Mendoza initially argued that the arbitration provision relied upon by SCSN violates section 10 U.S.C. 987(e)(3). Namely, Lori A. Mendoza argued, "It shall be unlawful for any creditor to extend consumer crcdit to a covered member or a dependant of such a member with respect to which- (3) the creditor requires the borrower to submit to arbitration." However, a more complete look at Section 10 U.S.C. 987 reveals that, for purposes of the statute, the term 'consumer credit' "does not include (A) a residential mortgage, or (B) a loan procured in the course of purchasing a car or other personal property, when that loan is offered for the express purpose of financing the purchase and is secured by the car or personal property procured." 10 U.S.C, 987 (6). Lori A. Mendoza did not dispute that the credit agreement at issue in this case pertained to the proposed purchase of a car, that the loan was offered for the express purpose of financing the purchase of the car, or that the loan was secured by the car procured. (Complaint 1111 6-8; and Exhibits A, J). Specifically, all agreements at issue in this case, including the ones containing the arbitration clause invoked by SCSN relate to the proposed purchase ofa 2010 Nissan Rogue by Lori A. Mendoza and Lori A. mother. Accordingly, SCSN never extended "consumer credit" to Lori A. Mendoza for ll purposes of section 10 U.S.C. 987 and her reliance on this provision was erroneous. F. Lori A. Mendoza directly benefitted from the contract between SCSN and her mother and is therefore bound by the arbitration provision. Lori A. Mendoza contended that she was not bound by the arbitration provision contained in the contract with the SCSN because she never signed the contract. ln general, arbitration is a matter of contract and a party cannot be required to submit a dispute to arbitration unless he has agreed to do so. ge Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986); United Steel Workers of America v. Warrior Gulf Navigation Co., 363 U.S. 574, 582 (1960); Gatx Manag. Servs., LLC, 171 F. Supp. 2d at 1166 (citing Everett v, Dickinson Co., 929 P.2d 10 (Colo. Ct. App. 1996). However, there are exceptions to this general rule. Chegy Creek Card Card Party Shop, Inc. v. Hallmark Marketing, Inc., 176 F. Supp. 2d 1091, 1095 (D. Colo. 2001); Gatx Manag. Servs., LLC, 171 F. Supp. 2d at 1166 (citing Eygri, 929 P.2d at 12). Non-signatories may be bound to the arbitration agreements of others under common law principles of contract and agency law including incorporation by reference, assumption, agency, veil-piercing/alter ego, and estoppel. Chegy Creek Card Card Party Shop, inc., 176 F. Supp. 2d at 1095; Employers Ins. of Wausau v. Bright Metal Specialities, Inc., 251 F.3d 1316, 1322-23 Cir. 2001). A non-signatory may invoke an arbitration clause under ordinary state-law principles of agency or contract. Lg Creek Card Card Party Shop, Inc., 176 F. Supp. 2d at 1095; Long v. Silver, 248 F.3d 309, 319-320 (4th Cir. 2000); Arnold v. Arnold Corp-Printed Communications for Bus., 920 F.2d 1281 Cir. 1990). A non-signatory may enforce an arbitration agreement under a third-party beneficiary theory when the parties to the agreement have agreed, 12 upon the formation of their agreement, to confer the beneiits thereof to the non-signatory. Gibson V. Wal-Mart Stores, Inc., 181 F.3d 1163, 1170 n.3 (10'h Cir. 1999); O'Conner V. R.F. Laffg Co., 965 F.2d 893, 901 (10th Cir. 1992); MS Dealer Serv. Corp. V. 177 F.3d 942, 946-47 (11th Cir. 1999). A non-signatory may also be bound by a contract containing an arbitration clause upon a determination that the non-signatory is the alter ego of a signatory. ARW Exploration Corp. V. Aggirre, 45 F.3d 1455, 1460-61 (10th Cir. 1995). Lori A. Mendoza directly benefitted from the contract between SCSN and her mother and is therefore bound by the arbitration provision contained in the contract between SCSN and her mother. Exhibits A, J. A non-signatory can be bound to an arbitration agreement if "the contracting parties intended, upon execution ofthe contract, to bestow a direct, as opposed to incidental benefit upon the third party." Gibson V. Wal-Mart Stores, Inc., 181 F.3d 1163, 1170 n.3 (10'h Cir. 1999); O'C0nner V. R.F. Lafferty Co., 965 F.2d 893, 901 (10th Cir. 1992); MS Dealer Serv. Corp. V. 177 F.3d 942, 946-47 (11'h Cir. 1999). order for a person to be a third- party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties." O'Conner, 965 F.2d at 901. An intent to benefit the third party must be apparent from the construction of the contract in light or" all surrounding circumstances to qualify that party as a third party beneficiary. Northern Gas Co. v. 666 F.2d 1279, 1287 (10th Cir. 1981). A key inquiry when determining whether a non-signatory to an agreement is a third party beneficiary is the intent ofthe parties. O'Conner, 965 F.2d at 901. Thus, in Gibson V. Wal-Mart Stores, inc., 181 F.3d 1163 (1 Om Cir. 1999), the court found that because a third-party Wal-Mart employee was an intended beneficiary to the contract between Wal-Mart and Gibson, all claims that 13 Gibson brought against the third-party employee were also subject to arbitration pursuant to the arbitration provision contained within the contract between Wal-Mart and Gibson. 181 F.3d at 1170 n,3. This case arose out of an offer to purchase a 2010 Nissan Rogue from SCSN, the trade-in of a 2004 BMW owned by the Lori A. Mendoza s' mother, Sylvia Mendoza and the subsequent return of the 2010 Nissan Rogue by Lori A. Mendoza to SCSN. Documents were prepared for the signature of the Lori A. Mendoza s' mother, Sylvia Mendoza as Buyer and Lori A. Mendoza as Cobuyer. Lori A. MendoZa's mother, Sylvia Mendoza as Buyer, or Seller ofthe trade-in signed certain documents, including a Car Buyer's Offer and Purchase Option Contract, attached as Exhibit A, a Credit Application attached as Exhibit B, a Trade Title form, attached as Exhibit C, a Trade-In Information Sheet, attached as Exhibit D, a Power of Attorney for a Motor Vehicle pertaining to the 2004 BMW trade-in, attached as Exhibit Plaintiff signed a Credit Application attached as Exhibit and an Initial Privacy Notice attached as Exhibit G, all as part of a transaction for the purchase ofthe 2010 Nissan Rogue. Exhibits A-G. The Car Buyer's Offer and Purchase Option Contract was later modified to delete provisions related to charges for the extended service and maintenance contracts. S3 Exhibit H. Exhibits H, I and were then signed by Sylvia Mendoza as Buyer or Purchaser. Exhibits H, I, . Lori A. Mendoza was permitted to keep the 2010 Nissan Rogue while SCSN made attempts to obtain financing. As co-buyer ofthe 2010 Nissan Rogue, Lori A. Mendoza was clearly an intended beneticiary ofthe agreements between SCSN and Sylvia Mendoza. She would not have been permitted to keep the 2010 Nissan Rogue while SCSN attempted to secure iinancing for the transaction had Sylvia Mendoza not signed the agreements as buyer of the 2010 14 Nissan Rogue. Furthermore, Lori A. Mendoza presented no evidence that she would have qualified to purchase the 2010 Nissan Roque without her mother as buyer of the vehicle. Under these circumstances, Lori A. Mendoza is clearly an intended third-party beneficiary of the agreements between SCSN and her mother, Sylvia Mendoza and is accordingly subject to the arbitration provision contained in the agreements signed by her mother. Exhibits A-H. Moreover, a Lori A. Mendoza cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions. Long v. Silver, 248 F.3d 309 (4th Cir. 2001) (holding that allowing shareholder to avoid consequences of arbitration provision contained in agreement while invoking the benefits of the agreement would "both disregard equity and contravene [the and allowing arbitration of claims brought by non-signatory shareholders where claims were substantially intertwined); Custom Performance Inc. v. Dawson, So.3d 2010 WL 3377672 (Ala. Aug. 27, 2010), Thus, courts have developed a second exception to the general rule that a non- signatory cannot be forced to arbitrate. Custom Performance Inc. v. Dawson, So.3d 2010 WL 3377672, (Ala. Aug. 27, 2010). Regardless of whether a non- signatory is infact a third-pany beneficiary, the non-signatory is treated as a third-party beneficiary-and is equitably estopped from avoiding arbitration-when he or she asserts legal claims to enforce rights or obtain benefits that depend on the existence ofthe contract that contains the arbitration agreement. See, Custom Perfomance lnc. v. So.3d_, 2010 WL 3377672, (Ala. Aug. 27, 2010); Capitol Chevrolet Imports, lnc. v. Grantham, 784 So.2d 285, 289 (Ala. 2000) maintain her claims, [the non-signatory plaintiff] must be treated as a third-party beneficiary third-party 15 beneliciary is afforded all the rights and benefits, and has imposed upon him or her the burdens, ofa contract, including those benefits and burdens associated with arbitration. Moreover, equitable estoppel allows non-signatories to compel arbitration if there are intertwined claims. Gatx Manag. Servs., LLC, 171 F. Supp. 2d at 1163 (citing Grigson V. Creative Artists Agency, LLC, 210 F.3d 524, 527-28 (agreeing with the intertwined-claims test formulated by the Eleventh Circuit and holding that third parties could be compelled to arbitration where claims were substantially intertwined)), MS Dealer Serv. Corp. V. Franklin, 177 F.3d 942, 947 (10th Cir. 1999); Sunkist Soft Drinks, Inc. V. Sunkist Growers, Inc., 10 F.3d 753, 757 (10th Cir. 1993); Hughes Masongg Co. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 841 n.9 (7'h Cir. 1981). For example, the MS Dealer court held that equitable estoppel allows a non-signatory to compel arbitration in two different circumstances: First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause "must rely on the tenns of the written agreement in asserting [its] claims" against the nonsignatory. When each of a signatory's claims against a nonsignatory "makes reference to" or "presumes the existence ot" the written agreement, the signatory's claims "arise[ out of and relate[ directly to the [written] agreement," and arbitration is appropriate. Second, "application of equitable estoppel is warranted when the signatory [to the contract containing the arbitration clause] raises allegations substantially interdependent and concerted misconduct by both the nonsignatory and one or more ofthe signatories to the contract." Otherwise, "the arbitration proceedings [between the two signatories] would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted." MS Dealer Serv. Corp., 177 F.3d at 947. The same reasoning that justifies the use of equitable estoppels to allow a non- signatory to compel arbitration against a party who signed an agreement by a non- signatory to that agreement should apply in the reverse situation. Namely, the Court should apply equitable estoppels to compel Lori A. Mendoza to arbitrate a dispute arising 1 6 out of a contract signed by her mother because her claims against SCSN make reference to and presumes the existence of the agreement between SCSN and her mother, Sylvia Mendoza, that contains the arbitration provision and her claims against SCSN arose out of and are related directly to the proposed purchase of the 2010 Nissan Rogue that is the subject ofthat agreement. Gatx Manag. Servs., LLC, 171 F. Supp. 2d at 1163 (allowing non-signatory to contract containing arbitration provision to compel arbitration based upon both rationales set forth in MS Dealer Sew. Corp); MS Dealer Serv. Corp., 177 F.3d at 947. G. Statute of frauds does not preclude SCSN's actions under circumstances of this case. Next, Lori A. Mendoza attempted to argue that the 2010 Nissan Rogue in question was a "good" above the price of $500.00 and any agreement carmot be enforced under the statute of frauds provision provided under section 42-2-201. Lori A. Mendoza was barred from raising the statute of frauds defense either through her receipt and acceptance of the Nissan from SCSN or through her use of the Nissan for nearly two months and for in excess of 7500 miles. Lori A. Mendoza could not rely on the statute of frauds defense because of her receipt and acceptance of the 2010 Nissan Rogue. Assuming for putposes of the motion that the transaction at issue was subject to the provisions of the UCC, section 4-2- 201 provides that a contract which does not satisfy the formal requirements ofthe statute, but is valid in other respects, is enforceable with respect to goods for which payment has been made and accepted or which have been received and accepted. 4-2- 20l(3)(c); United States Mobile Premix Concrete V. Santa Fe Engineers, Inc., 515 F. Supp. 512, 514 (D. Colo. 1981). Where a party has received and accepted a good, that 17 party is precluded from claimin that the statute of frauds precludes enforcement of the terms of the parties oral agreement. Accordingly, in United States Mobile Premix Concrete v. Santa Fe Engineers, Inc., 515 F. Supp. 512, 514 (D. Colo. 1981), the District Court of Colorado required the federal government to pay for concrete it had received and accepted despite the absence of a Written amendment to the original contract. States Mobile Premix Concrete, 515 F. Supp. at 514. The holding in Morrison v. Droll, 5 88 F.2d 383, 385 (Colo. Ct. App. 1978), is directly on point. ln that case, the Court rejected the argument that an oral contract for the purchase of a car was unenforceable under the Statute of Frauds because it was not in writing. In analyzing the transaction, the court noted that the oral sales agreement was a sales contract covered by the Uniform Commercial Code. Morrison V. Droll, 588 P.2d 383, 385 (Colo. Ct. App. 1978) (citing Waggener V. Wilson, 507 P.2d 482 (l972)). The Court noted that under section 4-2- 20l(3)(c), the oral contract for purposes of the contract became enforceable by virtue of the purchaser's payment of $2000, coupled with his taking possession of the automobile. Morrison, 588 P.2d at 385. As in Morrison, Lori A. Mendoza was precluded from relying on the statute of frauds to avoid her obligations to SCSN. Here, Lori A. Mendoza admitted that she traded-in her (actually owned by Lori A. Mendoza's mother Sylvia Mendoza, see Exhibits C.D and E) 2004 BMW 325ci and left SCSN's dealership with the 2010 Nissan Rogue. (Complaint 7, 10). Thus, Lori A. Mendoza's reliance on the statute of frauds was misplaced. Morrison, 588 P.2d at 385. Similarly, Lori A. Mendoza was precluded from raising that statute of frauds defense because she partially performed the contract with SCSN. The partial performance exception precludes application of the statute of frauds. United Int'l 18 Holdings, Inc. v. Whari 210 F.3d 1207, 1226 (10'h Cir. 2000), "[T]he pan performance doctrine operates to preclude the application" ofthe statute of frauds. Nelson v. 908 P.2d 102, 108 (Colo. 1995). The doctrine applies if there is partial performance of an oral contract which is substantial; and (2) required by, and fairly referable to no other theory besides that allegedly contained Within the oral agreement." United Int'l Holdings, Inc., 210 F.3d at 1226 (citing 908 P.2d at 108). "This rule is based on the premise that the conduct constituting that partial performance must convincingly evidence the existence ofthe oral agreement." United Int'l Holdings, Inc., 210 F.3d at 1226 (citing 908 P.2d at 108). Since, Lori A. Mendoza traded-in the 2004 BMW actually owned by her mother Sylvia Mendoza and left SCSN's dealership with the 2010 Nissan Rogue. (Complaint 1111 7, 10) Lori A. Mendoza's reliance on the statute of frauds was again misplaced. United Int'l Holdings, Inc., 210 F.3d at 1226; 908 P.2d at 108, H. The Terms of Proposed Consumer Credit Transaction were provided in writing pursuant to the Colorado Consumer Code. Section 5-3-108 of the Colorado Constuner Credit Codes states: No consumer credit transaction shall be valid or enforceable in this state unless its terms are contained in a Written agreement and a copy is provided to the consumer at or before the time credit is extended. A creditor may provide the copy to the consumer in a form other than paper upon the consumers Written authorization. 5-3-108, SCSN provided Lori A. Mendoza and her mother with a written copy of Retail Sale Installment Contract that contained proposed tenns for a consumer credit transaction involving the 2010 Nissan Rogue. Exhibit J. (Complaint 1] 16; Exhibit J) Sylvia Mendoza signed the Retail Sale Installment Contract. There is no requirement in 1 9 section 5-3-108 that the agreement be signed by Lori A. Mendoza, merely that she be provided with a copy ofthe terms ofthe proposed credit agreement. Furthermore, as Lori A. Mendoza has stated repeatedly, SCSN was ultimately unable to secure credit for Lori Mendoza and her mother, Sylvia Mendoza, As such, SCSN's obligation to provide a written copy of the terms of any such consumer credit transaction was not yet triggered under the statute. Furthermore, although the Retail Installment Sales Contract may be subject to the provisions of section 5-3-108, requiring that a consumer credit agreement be in Writing, its provisions do not apply to the other agreements relating to Lori A. Mendoza's proposed purchase of the 2010 Nissan Rogue that are unrelated to the financing of its purchase. Compare Exhibit B-I and Exhibit J. Subsection regarding Parole Evidence Rule. Those arguments are incorporated herein. I. The enforceability of the arbitration provision against Lori A. Mendoza did not depend on the existence of a written contract between Lori A. Mendoza and SCSN. Lori A, Mendoza contended that no contract existed between her and SCSN because SCSN was unable to secure financing for her purchase ofthe 2010 Nissan Rogue. However, the elements of contract formation exist, even in the absence of a written contract. The elements of contract fonnation are offer; (2) acceptance; (3) consideration. Pierce v. St. Vrain Valley Sch. Dist. R-1.1, 981 P.2d 600 (Colo. 1999). Here, Lori A. Mendoza admits that she and SCSN verbally agreed that Lori A. Mendoza would trade-in the 2004 BMW 325ci and purchase the Nissan Rogue for $27,000.00 at approximately 7% interest. (Complaint 1] 7) Lon A. Mendoza also provided the BMW as consideration for the contract. Furthermore, the terms of Lori A. Mendoza's oral agreement with SCSN were spelled out in the documents attached to the 20 prior motion of SCSN. SQ Exhibits A-J One of these provisions was the arbitration provision relied upon by SCSN in seeking to compel arbitration in this matter. Exhibits A and H. Lori A. Mendoza did not claim that she was unaware of the arbitration provision or that she did not orally agree to its terms. Instead, she sought to invalidate it as a violation of the statute of frauds or contrary to her rights. These arguments were refuted elsewhere in this reply and those arguments are incorporated herein, What is more, as explained previously, Lori A. Mendoza is also subject to the arbitration provision in the contract between her mother, Sylvia Mendoza and SCSN not through the existence of a written contract with SCSN, but through her status as a third party beneficiary of that contract or through the application common law principles of contract and agency law including incorporation by reference, assumption, agency, veil- piercing/alter ego, and equitable estoppel. Subsection regarding intent to benefit plaintiff. Those arguments are incorporated herein. J. Nothing Unconscioriable existed in requiring Lori A. Mendoza to arbitrate dispute relating to the purchase of a vehicle. Requiring Lori A. Mendoza to arbitrate a dispute arising out of her proposed purchase of a 2010 Nissan Rogue is a reasonable and ordinary business practice. The Federal Arbitration Act thereby places arbitration agreements on an equal footing with other contracts and requires courts to enforce them according to their terms. Rent-a-Center West Inc. v, Jackson, 130 S. Ct. 2772, 1776 (2010), Like other contracts, however, they may be invalidated by "generally applicable contract defenses, such as fraud, duress, or unconscionability." Doctor's Assocs. Inc v. Cassarotto, 5l7 U.S, 681, 687 (1996). However, a court may not, in assessing rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it 21 otherwise construes nonarbitration agreements under state law; nor may a court rely on uniqueness of the agreement to arbitrate as a basis for state-law holding that enforcement would be unconscionable. 9 U.S.C. 1, v. Thomas, 107 S. Ct. 2520 (1987). Doctor's Assocs., lnc, 517 U.S. at 687. The burden of proving unconscionability is onthe party seeking to avoid arbitration, AutoNaticn USA Cogp. v. Leroy, 105 190, 198 (Tex. 2003). 9 U.S.C. 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary, 135, 107 S.Ct.at 2525 The effect ofthe section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage ofthe Act." Moses H. Cone Mem. Hosp., 460 U.S. (1983). Enacted pursuant to the Commerce Clause, U.S. Const., Art. I, 8, cl.3, this body of substantive law is enforceable in both state and federal courts. 107 at 2525. ln enacting the section, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims that the contracting parties agreed to resolve by arbitration." Qry, 107 at 2525; Moses H. Cone Mem. Hosp., 460 U.S. at 10. "Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements." Reply, 107 at 2525; Moses H. Cone Mem. Hosp., 460 U.S. at 10. Section 2 therefore, embodies a clear federal policy of requiring arbitration. A contract may be unconscionable there has been an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." Pennington v. Northrup Grumman Space Mission Sys., Inc., 269 Fed. Appx. 812, 818 (10th Cir. Mar. 14, 2008) (unpublished 22 decision). A contract is procedurally unconscionable "only where the inequality is so gross that one party's choice is effectively non-existent." A contract is substantively unconscionable only if the terms are "such as no man in his senses and not under delusion would make on the one hand, and no honest and fair man would accept on the other." In applying these concepts, the Tenth Circuit has held that the fact that an employer imposed a contract containing an arbitration provision as a condition of continued employment docs not render the contract procedurally unconscionable and that fact that the terms may favor the employer do not render the contract substantially or procedurally unconscionable. Lori A. Mendoza argued that the arbitration agreement is unconscionable because she failed to read the arbitration clause, it did not come up in the oral discussion of the purchase of the 2010 Nissan Rogue, and because it allegedly forces her to waive federal and state rights, However, other courts have rejected these arguments in the context of automobile dealerships. AutoNation USA Corp., 105 at 198; Murphy v. Courtesy Ford, LLC, 944 So.2d 1131 (Fla. D. Ct. App. 2006); Russell v. Performance Toyata, lnc., 826 So.2d 719, 725 (Miss. 2002). Furthermore, courts similarly enforce arbitration clauses even in the context of any number of federal and state ri ghts. Begg, 107 (Federal Arbitration Act required arbitration despite California law precluded arbitration of wage claims); Pennington, 269 Fed. Appx. 812 (Title sex discrimination and retaliation). K. Nothing in the Constitution prohibits an individual from waiving their right to a jury trial. Lori A. Mendoza argued that the arbitration agreement constitutes an unconstitutional waiver of her right to a jury trial. Again, she claims that she was not told 23 about the arbitration provision and did not receive a copy of the agreement in writing. While individuals have the right to a jury trial, our constitution, statutes, and case law support an individual's decision to waive tl1is right and agree to arbitrate instead. Colo. Const. art. 3; FAA, 9 U.S.C. Colo. Const. art. Uniform Arbitration Act, 13-22-20lto -230; Moffat v. Life Care Centers of America, 219 P.3d 1068, 1074 (Colo. 2009). urthermore, courts have already held that a third party who directly benefits from a contract containing an arbitration clause can be compelled to arbitrate claims arising from that contract even in the absence of a signature on that contract. Lee v. Grandcor Med. Sys., Inc., 702 F. Supp. 252 (D. Colo, 1988) third patty beneficiary must accept a contract's burdens along with its benefits. Moreover, a party may be bound by an arbitration agreement to which it has not expressly agreed. Zdeb v. Shearson Lehman Bros., 674 F. Supp. 812 (D. Colo. 1987). Segiq Manes Org., Inc. v. Standard Dyeing Finishing Co., 472 F. Supp. 687 (S.D.N.Y. 1979) (arbitration clause need not be signed or subscribed to by the Subsection F, above regarding third party subject to arbitration. Those arguments are incorporated herein. Accordingly, Lori A. Mendoza's argument failed. L. The arbitration agreement does not improperly limit Lori A. Mendoza's statutory rights as a consumer. Lori A. Mendoza admitted that that there was no reason to assume that arbitration cannot protect the interests of Lori A. Mendoza or any statutory rights she might have as a consumer. Mitsubishi Motors Corp., 473 U.S. at 637 was cited for the proposition that "so long as the prospective litigant effectively may vindicate her statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." Here, nothing in the arbitration provision prohibited Lori A. Mendoza from 24 raising the same claims and defenses in arbitration that she could raise in a judicial forum. Lori A. Mendoza argued that her access to statutory rights are improperly limited by the arbitration provisions requirement that each party pay its own costs. Assuming for purposes of the reply of SCSN that the requirement unjustly impacts Lori A. Mendoza's ability to seek recovery from SCSN, it does not preclude enforcement ofthe arbitration provision as a whole. Rent-a-Center West, Inc. v. Jackson, 130 S. Ct. 2772, 2779 n,3 (2010) (holding that enforceable provision of arbitration agreement can be severed from unenforceable portion of arbitration agreement). Rather, in proper circumstances, arbitration provisions have been modified to eliminate fee provisions that improperly limit an individual's right to seek adjudication of their statutory rights. gg Fuller v. Pep Boys-Manny, Moe Jack ofDel, Inc., 88 F. Supp.2d ll58, ll62 (D. Colo. 2000) (relying on savings clause to strike fee-splitting provision and enforce remainder of arbitration agreement). The agreements that contain the arbitration provision at issue here include a severability clause. 3 Exhibits A H. Accordingly, even were the Court to conclude the fee-splitting provision contained therein was unenforceable, it could severe it from the rest ofthe arbitration provision and compel Lori A. Mendoza to arbitrate the other claims. 88 F. Supp.2d at 1162. Furthermore, Lori A. Mendoza has completely failed to demonstrate that she lacks the financial resources to pay the costs of arbitration. ge Green Tree Fin. Cog.-Alabama V. Randolph, 531 U.S. 79, 89-91 (2000) (holding that employee must demonstrate that, under the arbitration agreement, she was likely to incur substantial fees and costs that would prevent her from vindicating federal statutory rights). Accordingly, Lori A. Mendoza could not justify her refusal to arbitrate solely on the fee-splitting provision. 25 M. Parties do not dispute whether an agreement to arbitrate exists, but whether it applies to Lori Mendoza. Lori A. Mendoza correctly stated that the "[w]hen a dispute concerns whether there is a valid and enforceable arbitration agreement in the first instance, there is no presumption of arbitrability on this initial issue. Gourley v. Yellow Transp., LLC, 178 F.Supp.2d 1196, 1202 (D. However, the Parties did not dispute the existence of an arbitration agreement related to the proposed purchase ofthe 2010 Nissan Rogue. Rather, the dispute concems whether that provision applies to Lori A. Mendoza. Lori A. Mendoza admits that she and her mother entered into a contract for the purchase of the 2010 Nissan Rogue. (Complaint 17) It is also clear that the Lori A. Mendoza and her mother, Sylvia Mendoza, anticipated purchasing the vehicle as co-buyers so that Lori A. Mendoza could obtain a better interest rate. (Complaint 118) Accordingly, Lori A. Mendoza directly benefited from the contract between SCSN and her mother, Sylvia Mendoza and must also carry the benefits of that agreement. Subsection F, above regarding third party subject to arbitration. Those arguments are incorporated herein. N. Statute cited by Lori A. Mendoza in support of right to jury trial did not apply to Lori A. Mendoza. Lori A. Mendoza attempted to create a statutory iight to a jury trial on the issue of whether she entered into an arbitration agreement with SCSN from 9 U.S.C. 4. That provision provides, in relevant part: A party aggrieved bythe alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. . The court shall hear the parties, and upon being 26 satistied that the making of the agreement tor arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms ofthe agreement. If the making of the arbitration agreement or the failure, neglect, or refusal to perfonn the same be in issue, the court shall proceed summarily to the trial thereof . . Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue . . 9 U.S.C. 4. However, Lori A. Mendoza is not seeking to enforce an arbitration agreement, rather she seeks to avoid one. Accordingly, by its clear terms, 9 U.S.C. 4 does not provide the statutory right that she claims. 0. Lori A. Mendoza's reliance on the Parole Evidence Rule to avoid application of the Damages Limitation Clause and the Bailment Clause was misplaced. Lori A. Mendoza attempted to avoid the consequences of her actions by claiming that the parole evidence rule precluded SCSN nom applying the terms ofthe damages limitation and bailment clauses of Exhibits A and because of clauses contained within the Retail Installment Sale Contract also signed by Sylvia Mendoza. Exhibit I. The parole evidence rule bars any prior or contemporaneous statements that are inconsistent with the terms ofthe contract. Stevens v. Vail Associates, Inc., 28 Colo.App. 344, 348 (l970). However, Lori A. Mendoza completely failed to demonstrate where the terms contained in the Retail Installment Sale Contract conflict with either the damages limitation or bailment clauses. The Retail Installment Sales Contract states only that it "You agree that this contract contains our entire agreement regarding the financing ofthe vehicle and that the tenns cannot be modified unless in writing and signed by all the parties. Exhibit (emphasis added). However, Lori A. Mendoza did not dispute that her mother Sylvia Mendoza executed a number of other contracts in connection with the purchase of the 2010 Nissan Rogue. Exhibit A-I. The Bailment and Damages Limitations clauses 27 are contained in these other Offer and Purchase Contracts that, While relating to the proposed purchase of the 2010 Nissan Rogue, do not relate to the financing of that vehicle and are therefore not encompassed with the scope of the Retail Installment Sales Contract. Compare Exhibit A and to Exhibit J. Therefore, Lori A. Mendoza's attempt to use the parole evidence and the integration clause contained in the Retail lnstallment Sales Contract to preclude reference to the Bailment and Damages Limitation Clauses was erroneous. P. Lori A. Mendoza's ECOA claim was to have been dismissed. The Equal Credit Opportunity Act claim was Lori A. Mendoza's only federal claim. Lori A. Mendoza's only federal claim, arising under the Equal Credit Opportunity Act, 15 U.S.C. 1691 et. seq., relates directly to the attempted purchase of the 2010 Nissan Rogue and the dealership's attempts to obtain tinancing. This claim is subject to mandatory binding arbitration under the purchase documents signed by Lori A. Mendoza's mother, Silvia Mendoza. Exhibits A-H. Subsection F, above regarding third party subject to arbitration, Those arguments are incorporated herein. However, should this Court conclude that Mendoza is not subject to the Offer and Purchase contracts containing the arbitration provision relied upon by SCSN, Exhibits A and H, and that she is not subject to the Retail Installment Sale Contract, then she was not an "applicant" for linancing and thus has no federal claim under the Equal Credit Opportunity Act (ECOA). The ECOA defines an "applicant" as "any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit." The statute was enacted to prevent discrimination, in particular, 28 based on an applicant's gender or marital status. Specifically, the statute forbids a creditor from requiring a spouse or other person, other than a joint applicant, to sign a credit application if the original applicant qualified under the creditor's standard of creditworthiness for the amount and terms of the credit requested. See 12 C.F.R. Here, although Lori A. Mendoza completed a document entitled "Credit Application," she did not complete the Retail Installment Sale Contract, which was the document submitted directly to the creditors for approval ofthe amount and terms set out therein. Thus, she did not meet the definition of an "applicant" and the ECOA does not apply to her. Furthermore, Lori A. Mendoza did not plead facts that support a conclusion that SCSN is a creditor for purposes ofthe ECOA. 3 Treadway v. Gateway Chevrolet Oldsmobile lnc., 362 F.3d 971, 980 n.8 (7'h Cir. 2004) (holding that dealership became a creditor when it declined to submit credit application to any lenders); Westchester Foreign Autos, Inc., 522 F. Supp. 2d 610, 614-15 (S.D.N.Y. 2007); Oyster Point Dodge, 397 F. Supp. 2d 712, (E.D. Va. 2005) (holding that dealership that padded credit terms became creditor for purposes of ECOA and was therefore subject to notice provisions of ECOA). Even assuming that adverse action was found, the notice requirements of the ECOA apply only to creditors. 15 U.S.C. l69l(d)(2). IQQ, 522 F. Supp. 2d at 614. Under the ECOA, "[t]he tenn 'creditor' means any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit." 15 l691a(e); 522 F. Supp. 2d at 614. For certain purposes, the term creditor includes persons 29 such as real estate brokers, automobile dealers, home builders, and home-improvement contractors who do not participate in credit decisions but who only accept applications and refer applicants to creditors, or select or offer to select creditors to Whom credit requests can be made, 397 F. Supp. 2d at7l8. These persons must comply with the general rule prohibiting discrimination, and with 202.4Ua), the general rule against discouraging applications. Regulation extends the definition of "creditor": Creditor means a person Who, in the ordinary course of business, regularly participates in a credit decision, including setting the terms of the credit. The term creditor includes a creditor's assignee, transferee, or subrogee who so participates. For purposes of 202.4(a) and the term creditor also includes a person Who, in the ordinary course of business, regularly refers applicants or prospective applicants to creditors, or selects or offers to select creditors to Whom requests for credit may be made. 12 C.F.R. 202.2(l) l-Eg 522 F. Supp. 2d at 614. Thus, although one who merely "refers applicants or prospective applicants to creditors, or selects or offers to select creditors to whom requests for credit can be made" (so-called "referral creditors") are to be considered as creditors for some purposes in the statutory scheme, the question is whether such a party also has the obligation to send notice of any adverse action to the consumer. Reg. B. 12 C.F.R. 397 F. Supp. 2d at7l8. The Federal Reserve Board has clearly indicated that merely "selecting creditors to whom applications will be made" does not make one a "creditor" for purposes of the notice requirements ofthe ECOA. 68 Fed. Reg. 13155; 397 F. Supp. 2d at7l8. In that situation, at least one lender is given the opportunity to decide whether to extend credit. 1, 397 F. Supp. 2d at7l8. Therefore, it is the lender, rather than the dealer, that makes the credit decision and if the dealer sends the application to at least one lender, there is another party that can provide notice to the applicant. Padin, 397 F. 30 Supp. 2d at7l 8 (holding that although the Defendant exercised its discretion in deciding to Whom to "shop" the Plaintiffs credit application, such "participation" alone does not make it a "participating creditor" for purposes of requiring it to abide by the notification provisions in the event of an adverse credit decision). Compare to Treadway, 362 F.3d at 980 n.8. SCSN regularly refers applicants to creditors. However, because subsections 202.4(a) and deal with discrimination and discouragement, respectively, and the Lori A. Mendoza did not make any allegations that SCSN participated in any discrimination or discouragement. Accordingly, SCSN did not fall within this defmition of"'creditor". 68 Fed. Reg. 13144-Ol, 13155 (Mar. 18, 2003) ("where the only role a person plays is accepting and referring applications for credit, or selecting creditors to whom applications will be made, the person meets the definition of creditor, but only for purposes of the prohibitions against discrimination and discouragement"); 522 F. Supp. 2d at 614. Lori A. Mendoza made no allegation that SCSN regularly participates in the actual decision to grant or deny credit to a particular applicant, therefore she did not allege that SCSN is a creditor for purposes of the ECGA. 522 F. Supp. 2d at 615. Q. Without the ECOA claim, the court should have declined to exercise supplemental authority over Lori A. Mendoza's state law claims. As the ECOA claim was Lori A. Mendoza's only federal claim, she lacked standing in the federal cotut and her state court claims should have been dismissed. Lori A. Mendoza's counsel correctly states that 28 U.S.C. 1367 permits the district court to exercise supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or 31 controversy. 28 U.S.C. 1367. However, a district court's decision whether to exercise supplemental jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary. 28 U.S.C. 1367(a), Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 11862, 1867 (2009). Lori A. Mendoza's single federal claim, under the Equal Credit Opportunity Act, 15 U.S.C. 1691 et. seq., arises directly from the vehicle transaction and the dealership's attempts to obtain financing. As explained previously, this claim is subject to mandatory binding arbitration under the purchase documents. Exhibits A-H . Subsection F, above regarding third party subject to arbitration. Those arguments are incorporated herein. Moreover, Lori A. Mendoza did not allege that SCSN is a creditor for purposes of ECOA under the circumstances of this case. SQ Subsection P, above regarding ECOA and status as a creditor. Those arguments are also incorporated herein. Therefore, her ECOA claim must be dismissed for one reason or another. Lori A. Mendoza s' remaining state law claims unquestionably arose from or were related to the vehicle purchase and the return of possession to SCSN because the parties' rights and obligations were defined by the vehicle purchase transaction and the documents signed by Lori A. Mendoza's mother, at the request of and with the consent of Lon A. Mendoza. Thus, Lori A. Mendoza s' state law claims were also subject to mandatory binding arbitration. This is especially true in that the arbitration clause expressly includes "statutory" claims and any "torts" arising out of or related to the vehicle transaction. Sc; Exhibits A-H. _S;e Subsection F, above regarding third party subject to arbitration. Those arguments are incorporated herein. 32 Although Lori A. Mendoza's signature did not appear on the June 25, 2010 documents or the revision deleting the charges for the extended service and maintenance contract, this was a single transaction for the same vehicle, and Lori A. Mendoza's complaint explicitly relied on the purchase ofthe vehicle on June 25, 2010 when she completed and signed a credit application, Exhibit F, signed the initial privacy notice "In connection with your transaction Exhibit G, and left the dealership with the Nissan Rogue. See Complaint, paragraphs 7-10, (alleging purchase occurred on June 26, 2010 and that her rights to the vehicle arose on that date). Thus, both Sylvia Mendoza and Lori A. Mendoza were bound by the contracts that were prepared by SCSN and signed by Sylvia Mendoza, including the duty to arbitrate any and all disputes arising against the dealership. The documents arising from this vehicle transaction as signed by Sylvia Mendoza, at the request of Lori A. Mendoza, and set up for the signature ofthe Lori A. Mendoza, but unsigned by Lori A. Mendoza, coupled with the Lori A. Mendozas use of the vehicle from June 25, 2010 to August 13, 2010 and 7557 miles did not relieve Lori A. Mendoza as a co-buyer nor does it relieve her from the arbitration clause approved, at the request of Lori A. Mendoza, by her mother Sylvia Mendoza as part of this transaction. 33