NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Deutsche Bank National Trust Company in its capacity as Trustee1 (Deutsche Bank) appeals from the March 14, 2014 Law Division Order denying its motion to compel arbitration. The motion court found that the claims advanced by plaintiff Alicia Banquez were "Excluded Claims" under the parties' arbitration agreement (the Agreement), because they concerned foreclosure proceedings involving Banquez and Deutsche Bank, and Banquez's claim was "ancillary to the bank's proceeding in foreclosure." We conclude that while the motion judge appropriately assumed the decision-making authority concerning the issue of arbitrability, the Agreement can reasonably be construed to find that the parties had agreed to arbitrate the current dispute. Consequently, we reverse.

The essential facts are not in dispute. Banquez purchased a property in Linden on March 6, 2007 and executed a note and a mortgage to the lender, Decision One Mortgage Company.2 At the closing, Banquez separately signed the Agreement with the lender. Under the Agreement, either party had "the absolute right to demand that any Claim be submitted to an arbitrator in accordance with [the Agreement]." If either party filed a "Claim" in court, "the other party has the absolute right to demand arbitration following the filing of such Claim or Action." The term Claim was defined expansively in the Agreement:

The Agreement also defined the term "Excluded Claims and Proceedings:

Section 7 of the Agreement also prohibits a borrower's participation in a class action, absent the Lender's consent, if the Lender has elected to arbitrate a claim. The section further provides that "[t]he validity and effect of this Section shall be determined exclusively by a court and not by an arbitrator."

In 2009, Banquez became unable to make her mortgage payments. On May 20, 2009 and again on August 3, 2009 the servicer of the loan sent Banquez a Notice of Intention to Foreclose (NOI) as required by the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-56. Both notices contained contact information concerning the loan servicer but did not disclose the name and contact information of the lender. Deutsche Bank subsequently filed a complaint to foreclose on Banquez's property on November 30, 2012. After Banquez and Deutsche Bank agreed to a loan modification, Deutsche Bank dismissed the foreclosure action on March 18, 2013.

Banquez filed a class action3 complaint on September 27, 2013. Her single-count complaint alleged that the NOIs she received were legally defective because they did not include the name and contact information of the lender, as required by the FFA, N.J.S.A. 2A:50-53 to-68. The complaint further alleged that this FFA violation entitled her to statutory damages under the Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA).4 N.J.S.A. 56:12-14 to-18. Specifically, the complaint asserted that "by violating the clearly established right of the borrower to receive an NOI containing the identity of the Lender, Deutsche Bank violated TCCWNA. Pursuant to TCCWNA, Deutsche Bank is therefore liable to [p]laintiff and the [p]roposed [c]lass for statutory damages for each violation of TCCWNA pursuant to N.J.S.A. 56:12-17."

Deutsche Bank sent Banquez's counsel a letter electing to arbitrate Banquez's claim under the Agreement. When Banquez did not voluntarily dismiss her complaint, Deutsche Bank moved to compel arbitration of her TCCWNA claim.

The motion court declined to order arbitration, concluding that the court had the power to determine whether the parties had agreed to arbitrate this particular dispute and that Banquez's lawsuit met the definition of an Excluded Claim under the Agreement. The court found that the delegation of arbitrability in the definition of Claims did not delegate to the arbitrator disputes concerning Excluded Claims which are defined in a separate sentence containing no such delegation. The court also found support for its authority to decide arbitrability in the specific directive in Section 7 that mandated that a court decide the effect of a class action waiver.

In determining the substantive issue of arbitrability, the court found that Banquez's claims "most certainly ha[d] to do with foreclosure proceedings that took place involving [Banquez] and [Deutsche Bank]." The judge found that the claim was "ancillary to the bank's proceeding in foreclosure," because "a required notice as a preliminary aspect of foreclosure proceedings is, indeed, an ancillary remedy in connect[ion] with [] judicial or quasi-judicial foreclosure proceedings." Deutsche Bank appealed.

We begin with a review of the applicable legal principles that guide our analysis. Orders compelling or denying arbitration are deemed final and appealable as of right. R. 2:2-3(a); GMAC v. Pittella, 205 N.J. 572, 585-86 (2011). We exercise plenary review of the trial court's decision regarding the applicability and scope of an arbitration agreement. See Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). In addition, the decision on whether parties have agreed to arbitrate is a question of law that is reviewed de novo. Ibid.

The protection of the Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, applies whether arbitrability is raised in federal or state court. Waskevich v. Herold Law, P.A., 431 N.J.Super. 293, 297 (App. Div. 2013) (quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 84 (2002). When reviewing an order to compel arbitration, courts must take into account the strong preference both at the federal level and in New Jersey for enforcing arbitration agreements. Hirsch, supra, 215 N.J. at 186.

That policy represents two principles: a "`federal policy favoring arbitration'" and that "`arbitration is a matter of contract.'" AT&T Mobility LLC v. Concepcion, 563 U.S. __, __, 131 S.Ct. 1740, 1745, 179 L. Ed. 2d 742, 751 (2011). The "central or `primary' purpose of the FAA is to ensure that `private agreements to arbitrate are enforced according to their terms.'" Stolt-Nielson S. A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 682, 130 S.Ct. 1758, 1773, 176 L. Ed. 2d 605, 622 (2010) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 1255-56, 103 L. Ed. 2d 488, 500 (1989)). Nevertheless, the policy favoring arbitration is "not without limits," Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001), and a party "`cannot be required to submit to arbitration any dispute which he [or she] has not agreed so to submit.'" Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J.Super. 138, 148 (App. Div. 2008) (quoting AT&T Techs. v. Commc'ns. Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L. Ed. 2d 648, 655 (1986)).

Thus, two questions arise when evaluating a motion to compel arbitration. The first is whether there is a valid and enforceable agreement to arbitrate disputes. Martindale, supra, 173 N.J. at 86. The second is whether the particular dispute between the parties is covered within the scope of the agreement. See id. at 92.

Generally, arbitration agreements "should be read liberally to find arbitrability if reasonably possible." Janson v. Salomon Smith Barney, Inc., 342 N.J.Super. 254, 257 (App. Div.) certif. denied, 170 N.J. 205 (2001). A court must resolve all doubts related to the scope of an agreement "in favor of arbitration." Id. at 258. Courts "operate under a `presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.'" Waskevich, supra, 431 N.J. Super. at 298 (quoting EPIX Holdings Corp. v. Marsh, 410 N.J.Super. 453, 471 (App. Div. 2009), overruled on other grounds, Hirsh, supra, 215 N.J. at 193).

While courts commonly are tasked with making the initial determination of whether a particular dispute is arbitrable, parties can delegate that power to an arbitrator. See AT&T Techs., supra, 475 U.S. at 649, 106 S. Ct. at 1418, 89 L. Ed. 2d at 656; Commerce Bank, N.A. v. DiMaria Constr. Co., 300 N.J.Super. 9, 14 (App. Div. 1997). But in the determination of whether parties have so delegated this threshold decision to an arbitrator, the general presumption in favor of arbitrability is shifted. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944-45, 115 S.Ct. 1920, 1924, 131 L. Ed. 2d 985, 994 (1995). This is because it is less likely that the parties have actually given thought to the question of who decides disputes over arbitrability, so ambiguity or silence on this question will not be interpreted as delegating that power to the arbitrator. Ibid. Instead, there must be "clear and unmistakable evidence" that the parties agreed to arbitrate arbitrability. Id. at 944, 115 S. Ct. at 1924, 131 L. Ed. 2d at 994.

Here, the parties do not dispute that they entered into a binding agreement to arbitrate. Rather, Deutsche Bank contends that the motion court erred in two ways. First, Deutsche Bank claims that the motion court erred by not delegating the threshold dispute over arbitrability to an arbitrator as mandated by the Agreement's delegation clause. Second, Deutsche Bank asserts that, even if the Agreement provided that the court determines arbitrability, the motion court erred in failing to compel arbitration of the dispute, which was a Claim, not an Excluded Claim, as defined in the Agreement.

Deutsche Bank maintains that the dispute over who decides arbitrability fits within the definition of "Claim" under the Agreement because it is a "dispute or controversy" over whether Banquez's claim is subject to arbitration. Conversely, Banquez argues that, because the definition of a Claim does "not include Excluded Claims or Proceedings," the very specific delegation to the arbitrator in the definition of Claims applied only to established Claims, not to Excluded Claims. Banquez also argues that the case is a class action claim and Section 7 provides that the court, not the arbitrator, must determine the validity and effect of any class action waiver.

In our view, the Agreement's inclusion of a delegation of arbitrability to the arbitrator in the definition of Claims, the specific delegation to the court concerning class action waiver in Section 7, and the silence of the Excluded Claim definition as to arbitrability certainly create an ambiguity as to the delegation of arbitrability of purported Excluded Claims. Deutsche Bank maintains that the parties' dispute over whether plaintiffs' claim under the TCCWNA is a Claim or a Excluded Claim must be decided by the arbitrator per the definition of Claim. This contention finds no support in the Agreement's definitions because if a dispute is truly an Excluded Claim it is not subject to the Agreement at all. Put differently, we perceive no clear or unmistakable delegation to an arbitrator in the definition of Excluded Claims that would render the Claims delegation to the arbitrator applicable in this instance. See Kaplan, supra, 514 U.S. at 944-45, 115 S. Ct. at 1924, 131 L. Ed. 2d at 994. In determining who decides arbitrability, we must resolve all ambiguities in favor of a court, not an arbitrator making the decision. Ibid.; see also AT&T Techs., supra, 475 U.S. at 649, 106 S. Ct. at 1418, 89 L. Ed. 2d at 656; Commerce Bank, supra, 300 N.J. Super. at 14.

The Supreme Court set a high bar for the delegation of arbitrability disputes to the arbitrator. AT&T Techs, supra, 475 U.S. at 649, 106 S. Ct. at 1418, 89 L. Ed. 2d at 656; see also Kaplan, supra, 514 U.S. at 944-45, 115 S. Ct. at 1924, 131 L. Ed. 2d at 994. The ambiguity in the Agreement means that the limited and specific delegation in the definition of Claims does not surmount that bar here as to Excluded Claims or warrant an exception to the general rule that a court decides the threshold issue of what the parties agreed to arbitrate. As the Agreement does not contain a clear and unmistakable delegation to the arbitrator to determine whether a dispute is an Excluded Claim, the motion court correctly assumed the role of deciding the threshold issue of arbitrability.

Next, Deutsche Bank argues that even if the Agreement did not delegate disputes over arbitrability to an arbitrator, Banquez's claim for damages was a Claim under the Agreement, not an Excluded Claim. Banquez contends that her claim met the definition of an "Excluded Claim" under the Agreement because it sought "an `ancillary remedy' in connection with an action to effect a foreclosure." Upon careful scrutiny, we conclude that Banquez's complaint did not seek an "ancillary remedy" to a foreclosure proceeding, but was a "Claim" covered by the Agreement.

Deutsche Bank first challenges the motion court's finding that Banquez's TCCWNA class action suit was an Excluded Claim because it "certainly had to do with a foreclosure proceeding." We agree that the dispute as framed in the Agreement does not support that conclusion.

In her complaint, Banquez alleged that Deutsche Bank violated the FFA by providing defective NOIs and sought statutory penalties under TCCWNA for the defects. The putative class consists of all persons in New Jersey who received similarly defective NOIs during a six-year period.

The express purpose of the NOI requirement in N.J.S.A. 2A:50-56 is "to provide notice that makes `the debtor aware of the situation and to enable the homeowner to attempt to cure the default." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 479 (2012). The complaint stated a cause of action under TCCWNA arising upon service of the defective NOIs; the existence of a foreclosure proceeding is not asserted to be necessary for the statutory violation under FFA or for statutory damages under TCCWNA. While a NOI may be a necessary precursor for a lender to file a foreclosure proceeding in this State, N.J.S.A. 2A:50-56, the complaint does not allege that violation of the FFA depends on or requires the actual filing of a foreclosure proceeding. Moreover, service of a NOI does not obligate a lender to file a foreclosure action. Indeed, we assume that the sending of an NOI often has the salutary effect of preventing any foreclosure.5

We discern no merit in Banquez's contention that her complaint was properly excluded from the Agreement because it was ancillary or provisional to the foreclosure complaint. Generally, "ancillary" means "supplementary" or "subordinate" and an "ancillary claim" means a "claim that is collateral to, dependent on, or auxiliary to another claim". Black's Law Dictionary 85 (7th ed. 1999). The Excluded Claims specify only one proceeding brought by the borrower, while the remaining proceedings are each brought by the lender, including a foreclosure action. It strains the language of the Agreement to characterize a borrower's claim for a statutory violation occurring three years prior to the bringing of a foreclosure action as ancillary, subordinate, or dependent on the foreclosure action. Additionally, the TCCWNA claim cannot be dependent or subordinate to a foreclosure action as it arises whether or not a foreclosure action is brought.

In sum, we conclude that Banquez's dispute with Deutsche Bank over the NOIs sent in 2009, was not an ancillary remedy to effect a foreclosure proceeding. The Agreement is sufficiently clear and unambiguous that the dispute between the parties is a Claim as defined in the Agreement. Moreover, to the extent that there is any lack of clarity on this interpretation, we note that doubts on the scope of arbitrability are to be resolved in favor of arbitration. EPIX, supra, 410 N.J. Super. at 471.

We therefore reverse the trial court's order, and remand to the trial court for an order dismissing Banquez's complaint without prejudice, and directing the claims be sent to arbitration as required by the Agreement.

Reversed and remanded. We do not retain jurisdiction.