Cruz v. Oliphant Financial CA1/3

Filed 11/9/23 Cruz v. Oliphant Financial CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CHERRIE SILVA CRUZ, Cross-complainant and Appellant, A166874

v. (San Mateo County OLIPHANT FINANCIAL, LLC et al., Super. Ct. No. 21-CIV-03306) Cross-defendants and Respondents.

Cherrie Silva Cruz took out a consumer loan and signed a “Borrower Agreement” containing an arbitration provision. Oliphant Financial, LLC (Oliphant) filed suit to collect Cruz’s unpaid debt, alleging it purchased the debt. Cruz filed a class action cross-complaint against Oliphant and Oliphant’s attorney (Rachel Haney) and her law firm (Gurstel Law Firm, P.C.) (collectively, cross-defendants), alleging cross-defendants violated state and federal debt collection laws. The trial court granted cross-defendants’ petition to compel individual arbitration and to stay proceedings pursuant to the arbitration provision in the Borrower Agreement.

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On appeal, Cruz argues, in essence, that cross-defendants failed to prove the right to compel arbitration was transferred to them by the original creditor to the Borrower Agreement. Cross-defendants have filed a motion to dismiss the appeal on the ground that the appeal is taken from a nonappealable order. We agree the order granting the petition to compel arbitration is a non-appealable order and so we dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND Oliphant’s complaint against Cruz alleges that Cruz obtained a loan from WebBank that she failed to repay, that Cruz’s account was assigned or transferred to Oliphant, and that Oliphant seeks to collect the debt. Attached to the complaint are documents detailing Cruz’s account, a copy of a borrower agreement, and a bill of sale indicating LendingClub Corporation (Lending Club) and Oliphant executed an Account Purchase Master Agreement, whereby LendingClub sold to Oliphant various accounts, including Cruz’s account. Cruz filed a cross-complaint asserting a class action against Oliphant and the attorney and law firm representing Oliphant. The allegations tentatively define the class as persons in California against whom cross- defendants filed a collection complaint attempting to collect a debt originally owed to WebBank and sold to Oliphant during a specific time period. Cruz also alleges as follows. Cruz incurred a financial obligation in the form of a consumer credit account issued by WebBank. The alleged debt (which she denies owing) is evidenced by a promissory note created and maintained by LendingClub. The debt and electronic promissory note were transferred by WebBank to LendingClub in March 2016, and thereafter the debt and promissory note were transferred to IBI Consumer Credit, LP (IBI), with LendingClub acting as IBI’s agent. The alleged debt was then sold to cross-