NCB MANAGEMENT SERVICES INC v. WALLACE (2026)

Opinion

Eleanor Wallace appeals from the judgment confirming an arbitrator's ruling against her and in favor of respondent NCB Management Services, Inc. for $6,549, the amount Wallace owed on a car loan agreement after she defaulted. The court confirmed the arbitrator's decision based on its finding that by executing an Extension Agreement (EA), Wallace had agreed to arbitrate any future claims with NCB in exchange for NCB extending the time for her to make two late payments. Wallace now appeals in one point claiming NCB failed to prove that she entered into the EA with its arbitration clause.

We affirm. While we find that the statement by an NCB employee purporting to authenticate Wallace's e-signature on the EA was not competent evidence because it was un-notarized, the trial court's judgment is nevertheless supported by substantial evidence because Wallace repeatedly admitted in her memorandum in opposition to NCB's motion to compel arbitration that she had, in fact, executed the EA.

Background

On February 25, 2017, Wallace bought a 2008 Cadillac CTS from Jim Butler, a St. Louis County car dealership. Wallace financed the purchase by executing a promissory note and a retail installment contract (RIC) with the Butler dealership. On the same day, the dealer and Santander Consumer USA, Inc. entered into an agreement whereby Jim Butler transferred to Santander its rights and obligations in the RIC and in the note. Wallace made the required payments to Santander on a timely basis for over a year but in August 2018, she missed a payment and then missed again the following month putting her in default on the contract.

At that point, Wallace asked Santander for an extension of time to make the late payments and on October 19, 2018, Santander sent her the payment extension agreement — the EA at issue here. As consideration for Santander's agreement to excuse the late payments, the EA included an arbitration clause under which Wallace agreed to arbitrate potential future claims arising out of the contract but it excluded claims in which the aggregate damages were expected to be less than $15,000. The EA did not require Santander to arbitrate any claims it might have against Wallace. The EA also required Wallace to agree to release any claims she had against Santander in connection with the “contract.”

Less than a year later, Wallace missed another payment; so, on June 17, 2019, Santander sent her the statutorily-required “second notice of right to cure default.” See sections 408.554 and 408.555.¹ The notice stated that Wallace had defaulted on the RIC but made no reference to the EA. Soon after, Santander repossessed the Cadillac, sold it at auction, and then notified Wallace that she owed a balance of $6,549.08 under the terms of the RIC.

On August 26, 2020, Santander and NCB entered into an agreement by which Santander assigned its interest in the contract to NCB. That document defined the “contract” as “any and all instruments, agreements, invoices, or other writings comprising the retail sale contract, retail installment loan, lease agreement, loan and security agreement, note or similar agreement pursuant to which an obligation to pay therefor arises or which evidences such obligation.” The trial court found the EA to be included in the term “contract” as described in the Santander - NCB assignment agreement.

On April 17, 2023, NCB sued Wallace to recover the unpaid balance on the note and other sums incurred during the repossession and sale of the car. Wallace filed her answer and a counterclaim seeking actual damages and attorney's fees for Santander's failure to comply with the statutory notices in connection with the repossession and auction. On November 21, 2023, Wallace filed an amended counterclaim seeking damages in excess of $25,000 and class action status for Santander's alleged on-going and wide-spread practice of violating the Uniform Commercial Code's (UCC's) notice provisions.²

On December 4, 2023, NCB filed its motion to compel arbitration of Wallace's counterclaims and defenses under the EA's arbitration clause, claiming that Wallace's amended counterclaim seeking damages in excess of $25,000 triggered NCB's right to compel arbitration. NCB attached exhibits to its motion including the un-notarized statement from Randy Bockenstedt (the Bockenstedt Declaration), an NCB employee, purporting to authenticate the signature on the EA as Wallace's.

Wallace filed a memorandum in opposition. She argued first that the EA was with Santander, not NCB, and that Santander's assignment to NCB was ineffective because it lacked Wallace's consent. Second, Wallace argued the EA was unconscionable because it granted NCB the unilateral right to compel arbitration. And third, Wallace argued that NCB waived its right to arbitrate by engaging in litigation before moving to compel arbitration.

On February 20, 2024, the court heard arguments of counsel but did not conduct an evidentiary hearing on the record and issued its detailed ruling based on the motion papers and exhibits submitted by the parties.

In granting NCB's motion to compel arbitration, the trial court held (1) that section 400.2-210 permitted Santander to assign to NCB its rights under both the RIC and the EA; (2) that Wallace agreed to the EA and was therefore bound by its terms; (3) that the EA's arbitration clause was not unconscionable or lacking in consideration given the particular circumstances here in which Wallace agreed to the unilateral arbitration clause after she was already in default on the loan in exchange for NCB's agreement to return Wallace to good standing; and (4) that NCB did not waive its right to arbitrate because the EA permitted NCB to litigate claims with an aggregate value under $15,000 and to opt for arbitration when the value went over that figure.

The parties arbitrated the matter and in its December 6, 2024 final award, the arbitrator granted NCB damages of $6,549.08 and rejected Wallace's claims that the dispute was not arbitrable and that NCB's predecessor-in-interest violated the UCC's presale notice provisions. This appeal follows.

Standard of Review

Whether a motion to compel arbitration should have been granted presents a legal question we review de novo. Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 774 (Mo. banc 2005). But “issues relating to the existence of an arbitration agreement are factual and require our deference to the trial court's findings.” Miller v. Securitas Sec. Servs. USA Inc., 581 S.W.3d 723, 728 (Mo. App. 2019). “As such, in an appeal from a circuit court's order [granting] a motion to compel arbitration when there is a dispute as to whether the arbitration agreement exists, the circuit court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Theroff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. banc 2020). Additionally, we will affirm the trial court's ruling “if it is cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or insufficient.” Jackson v. Higher Education Loan Authority of Missouri, 497 S.W.3d 283, 287 (Mo. App. 2016).

Discussion

Point One

Wallace argues that NCB failed to prove that she agreed to the EA's arbitration clause because the evidence NCB relied upon — the Bockenstedt Declaration — was not competent evidence in that it was an un-notarized statement of one who did not testify. In response, NCB contends that Wallace failed to preserve this claim because her “hearsay” objection was too “generalized” and lacked sufficient specificity.

Alternatively, NCB argues that even if Wallace preserved her hearsay objection to the Declaration, Wallace nevertheless agreed to arbitrate because she failed to deny that she signed the EA and failed to deny the agreement's existence. This argument is unsupported by any persuasive authority. Thus, we disagree on both counts and find that Wallace adequately preserved her hearsay objection to the Declaration. Brown v. Chipotle Servs., LLC, 645 S.W.3d 518, 526 (Mo. App. 2022).

“A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and which depends upon the veracity of the statement for its value.” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 59 (Mo. banc 1999). “An affidavit is a written declaration on oath sworn to by a person before someone authorized to administer such oath.” Piva v. Piva, 610 S.W.3d 395, 399 (Mo. App. 2020). When a party moves to strike an un-notarized affidavit for being hearsay, the grounds of the objections to the document's admissibility are broad enough to comprehend a lack of notarization and put the adverse party on notice of its need to defend the declaration's competence. Brown, 645 S.W.3d at 526.

We find that Wallace preserved her hearsay objection to the un-notarized Declaration by raising it in her memorandum in response to NCB's motion to compel arbitration. The trial court heard NCB's motion to compel arbitration where NCB and Wallace presented exhibits during the hearing. The hearing was not on the record and the court took no evidence; as such the parties’ legal memoranda along with certain exhibits comprise the relevant record here. And in her memorandum in opposition, Wallace more than adequately apprised the court and NCB of her position that this un-notarized Declaration was hearsay, lacked foundation, and was speculative. Thus, Wallace not only preserved her hearsay objection, but the objection is well-taken because the Bockenstedt Declaration is an unsworn statement that does not prove that Wallace signed the EA.

“A motion is not self-proving, and the movant has the burden of proving the allegations contained therein.” Id. at 524. And, “[e]xhibits attached to motions filed with the trial court are not evidence and are not self-proving.” Id.; see also Powell v. State Farm Mut. Auto Ins. Co., 173 S.W.3d 685, 689 (Mo. App. 2005) (motion properly denied where “exhibits were not in the form of affidavits and were never introduced into evidence”). “Where a ‘purported affidavit [does] not include an oath sworn before someone authorized to administer an oath,’ it is ‘merely an unsworn statement,’ and does not constitute competent evidence supporting the factual allegations contained in a motion.” Id. (internal citations omitted).

And Wallace provided NCB with ample notice of the Declaration's deficiency in her memorandum in opposition filed in January 2024. Yet, NCB failed to rectify it before the court took up the motion nearly a month later.

Nevertheless, there remains ample evidence in this record — namely the repeated factual admissions by Wallace in her memorandum in opposition that she had in fact executed the EA — to support the trial court's decision to enforce the EA's arbitration provision.

Evidentiary admissions, otherwise referred to as “ordinary” or “quasi” admissions, are “usually some form of self-contradiction and which is merely an item of evidence, available against the party on the same theory any self-contradiction is available against a witness.” May v. May, 294 S.W.2d 627, 634 (Mo. App. 1956). As an evidentiary admission functions on the same theory as a typical statement against interest, the “person whose act or utterance it is may nonetheless proceed with his proof in denial of its correctness. It is merely an inconsistency which discredits, in greater or lesser degree, his present claim and his other evidence.” Id. Statements in abandoned pleadings as well as stipulations, affidavits, and petitions in prior lawsuits can be held as evidentiary admissions. Mitchell Engineering Co., A Div. of CECO Corp. v. Summit Realty Co., Inc., 647 S.W.2d 130, 141 (Mo. App. 1982) (an appellant's adoption of a respondent's statement of facts in a prior appeal may be treated as an ordinary admission against interest). And, “[a]dmissions of an attorney relevant to the purpose for which he was employed and made while engaged in that employment are admissible in evidence against the․client.” Parr v. Missouri Farmers Ass'n, Inc., 567 S.W.2d 724, 727 (Mo. App. 1978).

In the memorandum, Wallace admitted no fewer than nine times that she signed and assented to the EA. For instance, the memorandum stated that “[o]nly Ms. Wallace, not any Santander representative, signed the Extension Agreement.” (emphasis added). Wallace goes on to admit that “Santander assigned its interest in the RIC to NCB after the provision was signed,” and that “she did not agree to arbitrate claims against any parties, including non-signatories, that were not involved with the RIC when she signed the Extension Agreement.” (emphasis added).

While Wallace's counsel claims that the admissions were made arguendo as part of other legal arguments, we come to a different conclusion upon our own reading of the document as a whole. If Wallace had in fact intended for the existence of the EA to be read as being arguendo throughout the document — or for her whole argument to center around the EA's existence — she had ample opportunity to expressly state as much. Instead, the four legal arguments that Wallace makes in her response rely upon the EA's existence.

We are not critical of Wallace's counsel in taking this position in Wallace's memorandum in response to NCB's motion to compel arbitration. It is a well-written and reasoned document and, understandably, counsel stated in oral argument that he fully anticipated that NCB would fix its defective proof. Moreover, Wallace has never taken the position that she did not sign the EA, only that NCB failed to prove that she signed the EA. Again, we are not critical of counsel's strategic decision to admit what appears to be the truth.

Conclusion

We affirm the judgement of the trial court.

FOOTNOTES

1.   All statutory references are to the Revised Statutes of Missouri (2016) (Supp. 2021).

2.   Sections 400.9-602, 400.9-611, 400.9-613, 400.9-614, 400.9-616, and 400.9-623.

James M. Dowd, Judge

Rebeca Navarro-McKelvey, Presiding Judge and Gary M. Gaertner, Jr., Judge concur.