Jacqueline Galloway v. Santander Consumer USA, Inc

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-03240-CCB. [999791462]. [15-1392]

Appeal: 15-1392

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1392

JACQUELINE GALLOWAY, on her own behalf and on behalf of all
others similarly situated,
Plaintiff - Appellant,
v.
SANTANDER CONSUMER USA, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, Chief District
Judge. (1:13-cv-03240-CCB)

Argued:

January 28, 2016

Decided:

April 8, 2016

Before TRAXLER, Chief Judge, and AGEE and WYNN, Circuit Judges.

Affirmed by published opinion.
Chief Judge Traxler wrote the
majority opinion, in which Judge Agee joined. Judge Wynn wrote
a dissenting opinion.

ARGUED: Cory Lev Zajdel, Z LAW, LLC, Reisterstown, Maryland, for
Appellant. Robert John Brener, LECLAIRRYAN, Newark, New Jersey,
for Appellee.
ON BRIEF: Michael von Diezelski, LECLAIRRYAN,
Annapolis, Maryland, for Appellee.

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TRAXLER, Chief Judge:
Jacqueline
dismissing

Galloway

her

action

appeals

against

a

district

Santander

court

Consumer

order

USA,

Inc.

seeking damages for breach of contract and alleging a violation
of the Maryland Credit Grantor Closed End Credit Provisions (the
“CLEC”), see Md. Code, Comm. Law §§

12-1001, et seq.

Finding

no error, we affirm.
I.
The pertinent facts in this case are undisputed.

Galloway

used a loan she obtained through a retail installment contract
(“the RISC”) to finance her purchase of a vehicle in March 2007.
The CLEC governs the RISC’s terms.
The
well

RISC

as

contained

information

procedures.

the

transaction’s

concerning

financing

repossession

terms

rights

as
and

It listed the total amount financed as $22,916.28

and required Galloway to make 72 payments of $487.46 on the 17th
day of every month.

If a payment or part thereof was more than

15 days late, the RISC called for imposition of a late fee of
five dollars or ten percent of the part of the payment that was
late,

whichever

modification

was

greater.

provision

The

stating

that

RISC
“[a]ny

also

change

contract must be in writing and we must sign it.”
The

RISC

was

(“CitiFinancial”),

assigned
which

to

took

a
2

CitiFinancial
security

included
to

a

this

J.A. 20.
Auto,

interest

in

Ltd.
the

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vehicle.

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Sometime before October 31, 2008, Galloway contacted

CitiFinancial
monthly

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loan

requesting
payment.

a

reduction

The

in

the

CitiFinancial

amount

of

representative

her
with

whom Galloway spoke told her that CitiFinancial would send her
paperwork to review and sign and that, once she returned the
signed papers, the company would consider whether to approve her
request.

Galloway stated that CitiFinancial told her they would

notify her in writing concerning whether her request had been
approved.
CitiFinancial then provided Galloway with a cover page and
a two-page document.

The cover page asked that she “review the

attached documents and provide the signature(s) required.”
25.

It

requested

that

after

she

signed

the

J.A.

paperwork,

she

“return [it] to CitiFinancial Auto for further review, approval
and

consideration.”

J.A.

25.

It

also

requested

“retain a copy of this agreement for [her] records.”

that

she

J.A. 25.

The two remaining pages constituted an amended agreement
(the

“Amended

Agreement

would

Agreement”).
take

effect

Under
on

its

October

terms,
31,

the

2008;

Amended

Galloway’s

total amount due would be $20,213.50; her monthly payment would
be reduced from $487.46 to $365.57; her first payment would be
due December 14, 2008; and her last (and seventy-second) payment
would be due on November 14, 2014.

The Amended Agreement also

included an arbitration agreement (the “arbitration agreement”)
3

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under

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which

Galloway,

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CitiFinancial,

and

CitiFinancial’s

assignees, could elect to arbitrate any dispute, “whether in
contract,

tort

or

action. 1

court

otherwise,”

J.A.

rather

26-27.

The

than

proceed

arbitration

through

agreement

a

also

prohibited Galloway from serving as a class representative or
participating

in

Finally,

Amended

the

a

class

action

Agreement

if

arbitration

provided

that

was

“all

elected.
terms

and

provisions of the [RISC] shall remain in full force and effect
except as expressly modified herein.”

J.A. 26.

Galloway signed the Amended Agreement on November 12, 2008,
and sent a copy of the signed agreement to CitiFinancial via
fax.
The

record

specifically
Agreement.

sent

does

not

reflect

that

Galloway

written

approval

Nevertheless,

Galloway

states

CitiFinancial

in

of
her

the

ever

Amended

declaration

that “sometime after November 14, 2008, CitiFinancial lowered
[her] scheduled monthly payments to $366.43,” J.A. 17, an amount
just 86 cents more than the amount contemplated in the Amended
Agreement.

Galloway immediately began making monthly payments

of $366.43 beginning December 13, 2008, and continued to make
payments in that amount for several years.

1

The arbitration agreement provided that it did not apply
to certain types of disputes, but Galloway does not maintain
that any of those exceptions applies here.
4

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In

her

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declaration,

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Galloway

states

that

it

was

an

“agreement between [her] and CitiFinancial entered into sometime
after November 14, 2008” that lowered her payment amount from
$487.46 to $366.43.
evidence

of

any

J.A. 17.

specific

However, the record contains no

discussions

between

Galloway

and

CitiFinancial explaining or addressing the 86-cent discrepancy.
And

Galloway’s

declaration

asserts

that

the

agreement

that

“lowered [her] payments to $366.43 each month was not evidenced
by a writing.”
In

J.A. 17.

December

2011,

CitiFinancial

assigned

the

security

interest in Galloway’s vehicle to Santander Consumer USA, Inc.
After

Galloway

fell

behind

on

her

payments,

Santander

repossessed her car, sold it, and, after failing in its attempts
to collect the outstanding deficiency, waived the deficiency.
Galloway subsequently brought this action in state court,
alleging that Santander breached the RISC and violated the CLEC
by

failing

vehicle.

to

provide

sufficient

notice

before

selling

her

Galloway purports to bring suit on behalf of herself

and all persons similarly situated.
Santander

removed

the

case

to

federal

district

court.

Santander also filed a motion to compel arbitration and stay
federal district court proceedings under the Federal Arbitration
Act

(“FAA”),

9

U.S.C.

§§ 1

et

seq.,

claiming

Galloway

had

previously agreed to arbitrate any disputes concerning her loan.
5

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Galloway denied that the parties had an agreement to arbitrate
and

alternatively

unenforceable
Galloway

claimed

under

also

the

moved

to

that

FAA

any

arbitration

because

amend

her

it

was

agreement

not

complaint,

in

and

was

writing.
Santander

opposed the motion on the basis that amendment would be futile.
Applying

a

summary-judgment-like

standard,

the

district

court concluded as a matter of law that Galloway had agreed to
arbitration and that the agreement to arbitrate was enforceable
under the FAA.

See Galloway v. Santander Consumer USA, Inc.,

Civ. No. CCB-13-3240, 2014 WL 4384641 (D. Md. Sept. 3, 2014).
The district court analyzed several alternative legal theories
offered

by

Santander

parties

agreed

to

as

support

arbitration.

for

its

The

position

court

that

concluded

the
that

CitiFinancial’s sending the Amended Agreement to Galloway was a
mere

invitation

for

Galloway

to

make

an

offer

because

the

company retained the right at that time to reject Galloway’s
refinancing application even if Galloway signed the agreement.
See id. at *3.

However, the court concluded that Galloway’s

returning a copy of the executed agreement constituted an offer
to enter into the agreement and that CitiFinancial accepted that
offer by reducing her monthly payment to only 86 cents more than
the agreement had called for.
Alternatively,
proposal

to

reduce

the
the

See id.

court

concluded

payment
6

to

that

$366.43

CitiFinancial’s
constituted

a

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counteroffer to make a minor modification to the dollar amounts
in the Amended Agreement, which Galloway accepted by making the
payments

in

the

objection.

See

argument

that

returning

a

amount
id.

no

CitiFinancial

The

new

signed
and

requested
district

contract
original

was
of

CitiFinancial’s

for

several

years

without

court

rejected

Galloway’s

formed

because

Galloway’s

the

Amended

written

conditions precedent to modifying the RISC.

Agreement

assent

were

to
both

See id. at *4.

The

district court concluded that the parties waived any right they
may have had to such formalities by virtue of their performance
under their new agreement.

See id.

The court added that, under

the doctrine of equitable estoppel, Galloway could not disclaim
the

Amended

Agreement,

having

accepted

the

benefit

agreement in the form of reduced monthly payments.

of

the

See id.

Having determined that the parties bound themselves to the
terms of the Amended Agreement, or at least to the terms of the
Amended Agreement with the slightly modified payment amount, the
court

concluded

that

the

enforceable under the FAA. 2
the

court

initially

written

arbitration

See id. at *3 n.4.

granted

Santander’s

agreement

On that basis,

motion

to

compel

arbitration and stayed the case pursuant to 9 U.S.C. § 3.
2

was

See

The court also concluded that Galloway’s proposed
amendment of her complaint would be futile.
See Galloway v.
Santander Consumer USA, Inc., Civ. No. CCB-13-3240, 2014 WL
4384641, at *5 (D. Md. Sept. 3, 2014).
7

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id.,

Doc: 25

at

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*5.

However,

on

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reconsideration,

the

court,

citing

Choice Hotels Int’l, Inc. v. BSR Tropicana Resort, Inc., 252
F.3d

707,

709-10

dismissing

the

(4th

case

Cir.

so

as

2001),
to

entered

allow

a

final

Galloway

to

judgment

pursue

an

immediate appeal.
II.
“We review de novo the district court’s judgment compelling
arbitration,

as

well

as

any

questions

of

state

contract

concerning the validity of the arbitration agreement.”
v.

Accenture

Fed.

Servs.,

LLC,

748

F.3d

217,

220

law

Santoro

(4th

Cir.

2014).
“Sections 3 and 4 [of the FAA] . . . provide two parallel
devices

for

litigation

enforcing
in

any

an

case

arbitration
raising

a

agreement:
dispute

a

stay

referable

of
to

arbitration, 9 U.S.C. § 3, and an affirmative order to engage in
arbitration, § 4.”

Chorley Enters. v. Dickey’s Barbecue Rests.,

Inc., 807 F.3d 553, 563 (4th Cir. 2015) (alteration and internal
quotation marks omitted).
were

hostile

to

the

Before the FAA was enacted, “courts

enforcement

of

arbitration

provisions,

following a long-standing common law rule which evolved from the
judiciary’s jealous refusals to oust courts of jurisdiction in
favor of other dispute resolution mechanisms.”

Whiteside v.

Teltech Corp., 940 F.2d 99, 101 (4th Cir. 1991).

“The purpose

for

enacting

the

FAA

was

to

assure
8

judicial

enforcement

of

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privately made agreements to arbitrate by placing them upon the
same footing as other contracts.”
omitted).

Id. (internal quotation marks

This purpose is served by the cause of action the FAA

provides and its “primary substantive provision,” Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983),
declaring, with exceptions not relevant here, that
[a] written provision in . . . a contract evidencing a
transaction
involving
commerce
to
settle
by
arbitration a controversy thereafter arising out of
such contract or transaction, or the refusal to
perform the whole or any part thereof, . . . shall be
valid, irrevocable, and enforceable.
9 U.S.C. § 2.
We

have

stated

that

“[a]pplication

of

the

FAA

requires

demonstration of four elements: ‘(1) the existence of a dispute
between the parties, (2) a written agreement that includes an
arbitration provision which purports to cover the dispute, (3)
the relationship of the transaction, which is evidenced by the
agreement,

to

interstate

or

foreign

commerce,

and

(4)

the

failure, neglect or refusal of the defendant to arbitrate the
dispute.’”

Rota-McLarty v. Santander Consumer USA, Inc., 700

F.3d 690, 696 n.6 (4th Cir. 2012) (quoting Whiteside, 940 F.2d
at 102).
Only the second element is at issue here.

Galloway does

not dispute that the present action falls within the scope of
the

arbitration

agreement,

but

9

she

argues

that

the

district

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court erred in concluding, without the benefit of a jury trial,
that

the

provision

was

a

CitiFinancial entered into.

term

of

any

contract

she

and

She also alternatively maintains

that if the arbitration agreement was a term of a contract the
parties entered into, the district court erred in ruling that
their acceptance of that provision satisfied the FAA’s writing
requirement.

We address these issues seriatim.
A.

We first address Galloway’s contention that she is entitled
to a jury trial regarding whether she and CitiFinancial entered
into a binding contract that included the arbitration agreement.
Under the FAA, “the party seeking a jury trial must make an
unequivocal denial that an arbitration agreement exists – and
must also . . . provide sufficient evidence in support of its
claims

such

that

a

reasonable

jury

verdict under applicable law.”
564.

could

return

a

favorable

Chorley Enters., 807 F.3d at

Thus, “to obtain a jury trial, the parties must show

genuine issues of material fact regarding the existence of an
agreement to arbitrate.” 3

Id.

We conclude that the district

court properly ruled that no such factual issue existed here.

3

We have noted that “[t]his standard is akin to the burden
on summary judgment.”
Chorley Enters. v. Dickey’s Barbecue
Rests., 807 F.3d 553, 564 (4th Cir. 2015).
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The parties agree that principles of Maryland law control
the question of whether they reached an agreement to arbitrate.
See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944
(1995) (“When deciding whether the parties agreed to arbitrate a
certain

matter

ordinary

.

.

state-law

.,

courts

generally

principles

that

.

.

govern

.

should

the

apply

formation

of

contracts.”); see Chorley Enters., 807 F.3d at 563.
Under Maryland law, a prerequisite to the formation of a
contract is mutual assent between the parties.
Norkunas,

919

A.2d

700,

708

(Md.

mutual assent includes two issues:
(2) definiteness of terms.”

2007).

See Cochran v.

“Manifestation

of

(1) intent to be bound, and

Id.

“A contract is formed when an unrevoked offer made by one
person

is

accepted

by

another.”

County

Comm’rs

for

Carroll

Cnty. v. Forty W. Builders, Inc., 941 A.2d 1181, 1209 (Md. Ct.
Spec.

App.

2008)

(internal

quotation

marks

omitted).

“An

‘offer’ is the ‘manifestation of willingness to enter into a
bargain, so made as to justify another person in understanding
that his assent to that bargain is invited and will conclude
it.’”

Prince George’s Cnty. v. Silverman, 472 A.2d 104, 112

(Md. Ct. Spec. App. 1984).
manifested

by

actions

as

Importantly, an acceptance may be
well

as

by

words.

See

Porter

v.

General Boiler Casing Co., 396 A.2d 1090, 1095 (Md. 1979) (“The

11

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purpose of a signature is to demonstrate ‘mutuality or assent’
which could as well be shown by the conduct of the parties.”).
As

it

did

below,

Santander

offers

several

concerning how a meeting of the minds occurred here.

theories
Santander

first argues that CitiFinancial’s sending Galloway the Amended
Agreement for her signature amounted to an offer to enter the
agreement and that Galloway’s signing it and faxing a copy to
CitiFinancial
Agreement.
argument
orally

constituted
Just

because

and

Galloway’s

in

as

the

her

acceptance

district

CitiFinancial

writing,

request

that

for

court

made
it

lower

of

did,

clear

the

we

to

Amended

reject

this

Galloway,

both

right

deny

retained

the

monthly

payments.

to

Since

CitiFinancial had not agreed that Galloway’s execution of the
Amended Agreement would bind the parties, the sending of the
agreement to Galloway for her signature was a mere invitation to
Galloway to make an offer.

See Spaulding v. Wells Fargo Bank,

N.A., 714 F.3d 769, 778 (4th Cir. 2013) (“[W]hen some further
act of the purported offeror is necessary, the purported offeree
has no power to create contractual relations, and there is as
yet no operative offer.” (internal quotation marks omitted)).
Thus,

Galloway’s

sending

of

constituted

a

execution

copy

not

an

of

the

of

the

signed

acceptance

of

Amended
document
an

offer

Agreement
to
made

and

CitiFinancial
to

her,

rather an offer to CitiFinancial to enter into the agreement.
12

her

but

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Santander

alternatively

Pg: 13 of 29

contends

that

the

district

court

correctly ruled that CitiFinancial accepted Galloway’s offer by
lowering the amount of Galloway’s monthly payment to 86 cents
more

than

difference

the

amount

described

by

the

Amended

Agreement

specified,

the

district

court

“de

Galloway, 2014 WL 4384641, at *3.

as

a

minimis.”

Galloway argues, however,

that CitiFinancial’s actions did not constitute an acceptance of
her offer because, under Maryland law, any variation from the
terms offered is considered to be a conditional acceptance or
counteroffer,

as

opposed

to

an

unconditional

acceptance

that

would immediately create a binding agreement. 4
Even

assuming

CitiFinancial’s

arguendo

actions

did

that
not

Galloway
bind

the

is

correct

parties

to

that
an

agreement, we agree with the district court’s alternative ruling
that CitiFinancial’s actions proposing payments in an amount 86
cents more than the amount specified in the Amended Agreement
constituted a counteroffer to modify the terms of the Amended
Agreement

in

this

minor

way

and

that

Galloway

accepted

the

counteroffer by making the payments in this slightly increased
amount.

4

Galloway also argues that the fact that CitiFinancial
charged her a late fee on November 3 in accordance with the
terms of the RISC demonstrated, for several reasons, that
CitiFinancial had not accepted the terms of the Amended
Agreement by that date.
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Although Galloway contends that the question of whether a
meeting

of

the

minds

occurred

presented

a

genuine

factual

dispute, we conclude that the legal consequences of the parties’
undisputed

actions

are

clear.

When

Galloway

first

inquired

about lowering the amount of her monthly payment, CitiFinancial
drafted the Amended Agreement and instructed her that if she
signed it and returned it, the company would review her request.
Galloway indicated her assent to the company’s proposed terms
when she executed the Amended Agreement on November 12, leaving
CitiFinancial to undertake its formal review process.
approximately
Galloway

to

one

month,

make

her

at

some

December

time
payment

early
in

enough
the

Within
to

new

allow

amount,

CitiFinancial informed Galloway that it would lower Galloway’s
payment to $366.43, almost the exact amount that the Amended
Agreement had contemplated.

On these facts, CitiFinancial could

not reasonably be understood to be offering Galloway the option
to

her

lower

payment

amount

without

accepting

the

other

new

terms specified in the Amended Agreement – such as, for example,
the increase in the number of payments that Galloway would be
required

to

make.

Rather,

CitiFinancial

could

only

be

reasonably understood to be proposing a very minor tweak to the
terms that it had originally suggested and that Galloway had
already indicated she would accept.
Learning

Annex,

Inc.,

830

F.2d
14

See Learning Works, Inc. v.
541,

543

(4th

Cir.

1987)

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(“Maryland law . . . requires unqualified acceptance of an offer
before a contract can be formed.

If a purported acceptance

varies from the terms of the offer, then it does not operate as
an acceptance, but rather as a rejection of the offer and a
counteroffer.”). 5
There is no evidence that Galloway ever explicitly agreed
to

accept

this

small

modification

Nevertheless,

her

CitiFinancial

requested

payments

several

for

making
and
years

to

payment
then

the

in

Amended

the

revised

continuing

without

Agreement.

complaint

to

amount

make
can

those

only

be

interpreted as an assent to the terms of the Amended Agreement
as slightly modified by the company.
of Contracts § 19(2)

See Restatement (Second)

(“The conduct of a party is not effective

as a manifestation of his assent unless he intends to engage in
5

We note that the record does not reflect whether
CitiFinancial’s communication to Galloway informing her that it
would lower her payment to $366.43 was oral or in writing.
Galloway’s declaration states that the agreement that “lowered
[her] payments to $366.43 was not evidenced by a writing.” J.A.
17.
It is unclear whether Galloway meant that CitiFinancial
informed her orally that it would lower her payment to that
amount or rather merely that there was no writing setting out
all of the terms of the parties’ new agreement. Regardless, the
means by which CitiFinancial informed Galloway of the amount of
her new monthly payment is not material to our decision.
Additionally, although the reason for the 86-cent increase
is also not material to our decision, the increase may be
attributable to a late fee of $48.74 imposed on November 3,
2008, when Galloway failed to make her October payment in a
timely manner, which increased the total amount she owed on her
loan.
15

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the conduct and knows or has reason to know that the other party
may infer from his conduct that he assents.”); see also Cochran,
919

A.2d

at

714

(indicating

that

offeree’s

silence

can

constitute acceptance if the offeree has accepted the benefit of
the offer); Restatement (Second) of Contracts § 53(3) (cmt. b)
(1981) (noting that offeree may guard against the risk that his
performance

will

constitute

an

unintended

acceptance;

he

can

simply communicate to the offeror that he does not intend to
assent).

This was not a case, after all, in which the parties

were engaging in back-and-forth negotiation over what the terms
of a new agreement would be.
would

modify

amount.

In

the

RISC

the

to

context

Galloway asked CitiFinancial if it

lower
of

her

the

required

parties’

monthly

dealings,

payment
it

was

CitiFinancial’s decision whether it would agree to do so, and,
if so, what new terms it would accept.

Then Galloway would

decide whether she would also accept those terms.

CitiFinancial

initially proposed terms in an Amended Agreement that it would
consider
company.
proposed

if

Galloway

returned

the

signed

document

to

the

When, after its formal review process, CitiFinancial
a

slight

change

in

the

dollar

amounts,

Galloway

assented to that change as well.
Galloway argues that, under Maryland law, the parties could
not validly modify the RISC without setting out all of the new
terms together in a written document and signing the document.
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In support of her argument, Galloway maintains that a signature
on a contract is a condition precedent if “the terms of the
contract make the parties’ signatures a condition precedent to
the formation of the contract.”

All State Home Mortg., Inc. v.

Daniel, 977 A.2d 438, 447 (Md. Ct. Spec. App. 2009); see also
Chirichella v. Erwin, 310 A.2d 555, 557 (Md. 1973) (explaining
that a condition precedent is “a fact, other than mere lapse of
time, which, unless excused, must exist or occur before a duty
of

immediate

quotation
correct,

performance

marks
no

of

omitted).

term

in

the

a

promise

While
Amended

that

arises”)

legal

Agreement

(internal

proposition
indicated

is

that

CitiFinancial’s signature was necessary to bind the parties, and
Galloway does not contend otherwise.
Galloway does not suggest that when CitiFinancial agreed to
reduce her payment to $366.43, the company indicated that any
further paperwork would be forthcoming or that any additional
signatures would be needed to complete the parties’ modification
of

the

terms

of

the

RISC.

All

CitiFinancial

Galloway was payment in the new amount.

sought

from

By making her December

payment in that amount and continuing to make payments in that
amount for several years, she accepted the terms CitiFinancial
had offered.

See Porter, 396 A.2d at 1095; Restatement (Second)

of Contracts § 30(2) (1981) (“Unless otherwise indicated by the

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language or the circumstances, an offer invites acceptance in
any manner and by any medium reasonable in the circumstances.”).
The only contractual language Galloway cites as the basis
for her position that a written agreement signed by both parties
was necessary to effectively modify the RISC is the language in
the RISC itself stating that any future amendment would need to
be

by

a

signed

contractual

writing.

limitations

However,

on

future

under

Maryland

modifications

law,

are

not

effective to prevent parties from entering into new agreements
orally or by performance; rather, they only provide context for
interpreting subsequent conduct.

See Hovnanian Land Inv. Grp.,

LLC v. Annapolis Towne Ctr. at Parole, LLC, 25 A.3d 967, 978-83
(Md. 2011) (Maryland “caselaw shows a persistent unwillingness
to

give

dispositive

and

preclusive

effect

to

contractual

limitations on future changes to that contract . . . whether it
is mutual modification, novation, waiver of remedies, or . . . a
waiver of condition precedent”); University Nat’l Bank v. Wolfe,
369 A.2d 570, 576 (Md. 1977) (holding that parties may modify
their

original

written

agreement

agreement

that

by

any

their
change

conduct
to

a

“notwithstanding

contract

must

be

a
in

writing”); see also Porter, 396 A.2d at 1095 (explaining that
formation of a contract does not require the parties’ signatures
“unless the parties have made them necessary at the time they

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expressed their assent and as a condition modifying that assent”
(emphasis added and internal quotation marks omitted)).
Here, as we have explained, the parties left no doubt that
they intended to modify the terms of the RISC, even in the
absence of a signed writing memorializing all of the new terms
to which they agreed.

Having led CitiFinancial to believe for

many years that the parties had successfully amended the RISC
even without a signed writing – and having accepted the benefit
of the modification in the form of substantially lower monthly
payment requirements – Galloway cannot now be heard to claim
that there was no valid amendment in the absence of a signed
writing.

See Hovnanian, 25 A.3d at 979 (waiver of a provision

requiring amendments to a contract to be in writing may be by
express agreement or by implication). 6

6

Accordingly, the district

Additionally, because the parties agreed on a monthly
payment of $366.43, the terms to which the parties manifested
assent were sufficiently definite.
Galloway argues that there
was some uncertainty regarding the date that monthly payments
were due, but that is not correct.
The Amended Agreement
plainly provided that Galloway’s payments were due on the 14th
of every month.
Galloway contends that CitiFinancial changed
this date, as evidenced by the fact that the RISC provided that
late fees would be incurred if payments were more than 15 days
late, yet after December 2008, CitiFinancial often imposed late
fees 15 days, rather than 16 days, after the due date. However,
CitiFinancial had often been charging late fees exactly 15 days
after the payment due date since the initiation of the loan.
Regardless of whether that was proper under the parties’
agreements, the continuation of that practice after December
2008 was no indication that the payment due date had somehow
changed from that provided in the Amended Agreement.
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court properly concluded that the arbitration agreement was a
term of a contract that the parties entered into.
B.
In

addition

maintains

that

to
any

her

state-law

arbitration

arguments,

agreement

Galloway

that

entered into is not enforceable under the FAA.

the

also

parties

We disagree.

The FAA declares, with exceptions not relevant here, that
[a] written provision in . . . a contract evidencing a
transaction
involving
commerce
to
settle
by
arbitration a controversy thereafter arising out of
such contract or transaction, or the refusal to
perform the whole or any part thereof, . . . shall be
valid, irrevocable, and enforceable.
9 U.S.C. § 2.
requires

We have stated that “[a]pplication of the FAA

demonstration

of,”

among

other

things,

“a

written

agreement that includes an arbitration provision which purports
to

cover

the

dispute.”

Rota-McLarty,

(internal quotation marks omitted).

700

F.3d

at

696

n.6

As we have explained, the

record demonstrates as a matter of law that Galloway, by making
payments in the amount CitiFinancial requested, bound herself to
the

terms

of

the

written

Amended

Agreement,

with

a

slight

modification in the dollar amounts that is not included in the
writing.

The question this case presents is whether the fact

that

Amended

the

Agreement,

and

specifically

the

arbitration

agreement, were in writing was sufficient to satisfy the FAA’s
writing requirement, or rather, whether the parties’ non-written

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modification of a separate term of the agreement rendered the
arbitration

agreement

unenforceable.

We

conclude

that

the

writing requirement was satisfied.
The “written arbitration agreement” that is necessary to
bring

an

agreement

document—the

within

physical

the

FAA’s

embodiment

of

scope
the

is

an

“actual

underlying

legal

obligations” and need not include any written assent to those
obligations.

Seawright v. American Gen. Fin. Servs., 507 F.3d

967, 978-79 & nn.5-7 (6th Cir. 2007) (holding that FAA’s writing
requirement was satisfied when pamphlet distributed to employees
contained arbitration provision and stated that an employee’s
continuing

employment

would

constitute

acceptance

of

the

procedures); see In re Cotton Yarn Antitrust Litig., 505 F.3d
274, 281 n.5 (4th Cir. 2007) (holding that when agreement to
arbitrate

was

incorporated

under

the

UCC

into

terms

of

oral

contracts because it was established that arbitration is a usage
of trade, and subsequent written confirmations containing the
details of the arbitration terms became part of the contract by
operation of law, the confirmations satisfied the FAA’s writing
requirement);

Caley

v.

Gulfstream

Aerospace

Corp.,

428

F.3d

1359, 1369 (11th Cir. 2005) (holding FAA’s writing requirement
was satisfied when, “[a]lthough the employees’ acceptance was by
continuing their employment and was not in writing, all material
terms – including the manner of acceptance – were set forth in
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the written” dispute resolution policy); International Paper Co.
v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 416
(4th

Cir.

2000)

(“While

a

contract

cannot

bind

parties

to

arbitrate disputes they have not agreed to arbitrate, it does
not follow that under the Federal Arbitration Act an obligation
to arbitrate attaches only to one who has personally signed the
written arbitration provision.

Rather, a party can agree to

submit to arbitration by means other than personally signing a
contract

containing

internal

quotation

an

arbitration

marks

clause.”

omitted));

Fisser

(alterations
v.

&

International

Bank, 282 F.2d 231, 233 (2d Cir. 1960) (“[T]he [FAA] contains no
built-in Statute of Frauds provision but merely requires that
the

arbitration

contract

provision

principles

provisions.”

itself

determine

(footnote

who

omitted)).

be

in

is

writing.

bound
Because

by

Ordinary

such

the

written

arbitration

agreement was in writing and Galloway assented to be bound by
that

agreement

when

she

made

payments

in

the

amount

CitiFinancial requested, it does not matter, for purposes of
enforceability under the FAA, that she also assented to other
terms that may not have been in writing.

Stated another way,

although no writing documented CitiFinancial’s minor change to
the Amended Agreement’s dollar amounts, the parties were not
required to draft an integrated writing documenting this minor
change

in

order

to

make

the
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arbitration

agreement

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enforceable under the FAA.

Pg: 23 of 29

See Medical Dev. Corp. v. Industrial

Molding Corp., 479 F.2d 345, 348 (10th Cir. 1973) (“[I]t [is]
not necessary that there be a simple integrated writing or that
a party sign the writing containing the arbitration clause.
that

is

writing.”

required

is

(citations

that

the

arbitration

omitted)).

The

provision

district

All

be

court

in
was

therefore correct to enforce the arbitration agreement.
III.
In

sum,

because

we

conclude

that

the

district

court

correctly enforced the parties’ arbitration agreement, we affirm
the district court order dismissing Galloway’s action.
AFFIRMED

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WYNN, Circuit Judge, dissenting:
The question at the heart of this appeal is whether the
parties formed a written agreement to arbitrate.
yes,

pointing

arbitration

to

a

clause;

(problematic)
Galloway

amendment

says

no,

Santander says

document

declaring

with
that

an
the

operative modification contract was never reduced to writing.
In

short,

entered

the

into

arbitration.

parties
a

dispute

written

a

material

agreement

to

fact:

whether

submit

they

disputes

to

It therefore cannot accurately be said that “[t]he

pertinent facts in this case are undisputed.”

Ante at 2.

A

jury—not a court—should resolve this dispute.

Accordingly, I

dissent.
I.
Galloway, a Maryland consumer, bought a car in 2007, and
her loan was initially assigned to CitiFinancial.

Under the

financing contract, Galloway was required to make 72 monthly
payments of $487.46.

J.A. 19.

no arbitration provision.

The original contract contained

It did, however, include a provision

requiring changes to be in writing and signed to be binding:
“Any change to this contract must be in writing and we must sign
it.

No oral changes are binding.”

J.A. 20 (emphasis added).

No one disputes the original contract’s validity.
The same cannot be said of a purported amendment to the
agreement dating to 2008:

The dispute surrounding its validity

Appeal: 15-1392

is

Doc: 25

at

the

center

CitiFinancial
reduced.
and

an

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and

of

this

requested

Pg: 25 of 29

appeal.
that

her

Galloway
monthly

contacted

payments

be

In response, CitiFinancial sent Galloway a fax letter
“Amendment

“Amendment

Agreement”

Agreement”

and

and

instructed

return

it

“review, approval and consideration.”

to

her

to

sign

CitiFinancial

J.A. 25.

the
for

The “Amendment

Agreement” proposed monthly payments of $365.57 and included an
arbitration provision.

J.A. 26.

Galloway signed the Amendment Agreement and faxed it back
to CitiFinancial.
Agreement.

But CitiFinancial never signed the Amendment

And for months, Galloway made, and CitiFinancial,

and later its assignee Santander, the defendant here, accepted
monthly payments of $366.43—not the $365.57 in the Amendment
Agreement.

In

fact,

Santander’s

spreadsheet

for

Galloway’s

account listed as her requisite payment amount “$366.43”—not the
$365.57 in the Amendment Agreement.
Ultimately, Galloway failed to make her monthly payments,
and Santander repossessed and sold her car.

Galloway sued in

Maryland state court, alleging that Santander failed to give
notice as required under the Credit Grantor Closed End Credit
Provisions of the Maryland Credit Deregulation Act.

Galloway

also declared in an affidavit that CitiFinancial “told me that
the paperwork provided to me was not pre-approved . . . and that

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someone within CitiFinancial would have to approve my request
before it became effective.”

J.A. 16 (emphasis added).

Galloway further declared, under penalty of perjury, that
“CitiFinancial

did

not

accept

the

terms

of

the

executed

Amendment Agreement” and that “[t]he agreement between myself
and CitiFinancial . . . which lowered my payments to $366.43
each month was not evidenced by a writing.”
added). 1
Galloway’s

J.A. 17 (emphasis

Santander proffered no evidence affirmatively refuting
statements,

instead

declaring

that

it

had

simply

“relied upon the accuracy of the [original financing contract]
and the Amendment Agreement.”

J.A. 31.

Santander removed the case to federal court and then moved
to compel arbitration.

The district court granted the motion,

holding that a written arbitration agreement existed.
II.
Where
regarding

a
the

party

“show[s]

existence

of

genuine
an

issues

agreement

of
to

material

fact

arbitrate,”

a

standard we have likened to “the burden on summary judgment,”
that party is entitled to a jury trial on the issue.
Enters. v. Dickey’s, 807 F.3d 553, 564 (4th Cir. 2015).
review

a

district

court’s

judgment

1

compelling

Chorley
And we

arbitration

de

It is, therefore, inaccurate to suggest that the record
contains “no evidence,” ante at 5, of discussions between
Galloway and CitiFinancial.
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Santoro v. Accenture Fed. Servs., LLC, 748 F.3d 217, 220

(4th Cir. 2014).
In my view, this case presents a straightforward factual
dispute entitling Galloway to a jury trial.

Galloway contends

that the amendment to the original contract was not reduced to
writing.

Evidence supporting Galloway’s version of the facts

includes: (1) her sworn statement, including her averment that
“[t]he agreement between myself and CitiFinancial . . . which
lowered my payments to $366.43 each month was not evidenced by a
writing,”

J.A.

17;

(2)

the

fact

that

the

actual

amount

of

Galloway’s lowered payments differed from the amount stated in
the purported Amendment Agreement; (3) Santander’s admission in
its declaration that it simply relied on the accuracy of the
documents;

(4)

the

fact

that

the

original

contract

clearly

contemplated non-written amendments—because it stated that only
written and signed amendments would be binding; and (5) the fact
that

CitiFinancial

never

signed

the

Amendment

Agreement

as

required under the original contract.
Santander, by contrast, contends that in sending Galloway
the

Amendment

consideration”

Agreement—which
by

required

CitiFinancial,

J.A.

“review,

approval

25—CitiFinancial

and
made

Galloway an offer, which she accepted when she faxed the signed
document back.

Santander also argues, for example, that the

difference in amount between the payments Galloway actually made
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and the payments she was required to make under the Amendment
Agreement was simply de minimis and that the discrepancy was
either ratified or waived. 2

While Santander’s arguments may not

all be frivolous, 3 I simply cannot agree that they lead to the
conclusion

that

“CitiFinancial

could

only

be

reasonably

understood to be proposing a very minor tweak to the terms that
it

had

originally

suggested

indicated she would accept.”
Instead,

this

is

a

and

that

Galloway

had

already

Ante at 14.

classic

case

of

he

said/she

said.

Galloway claims that the parties’ ultimate agreement to lower
her monthly payments was never reduced to writing.

2

Santander

I am confounded by the way in which the majority opinion
invokes waiver here. Plainly, “[t]he parties left no doubt that
they intended to modify the terms of the RISC, even in the
absence of a signed writing to which they agreed.” Ante at 19.
And indeed, Galloway does not contest that the parties agreed to
a modification; she instead contests how they did so, disputing
that the modification took the form of a written document
containing an arbitration provision.
Waiver is thus plainly
misplaced and certainly does not lead to the conclusion that
“the district court properly concluded that the arbitration
agreement was a term of the contact that the parties entered
into.” Ante at 20.
3
I agree with the majority’s rejection of Santander’s
argument that, in faxing the Amendment Agreement to Galloway,
CitiFinancial made her an offer. I also note that not a single
reported Maryland case engages in the “de minimis” analysis
featured in Santander’s brief and the court’s analysis. On the
contrary, the case law suggests that any discrepancy between an
offer and a purported acceptance results in no contract being
formed. See, e.g., Learning Works, Inc. v. The Learning Annex,
Inc., 830 F.2d 541, 543 (4th Cir. 1987) (“Maryland law, which
applies in this case, requires unqualified acceptance of an
offer before a contract can be formed.” (citations omitted)).
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Doc: 25

that

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the

Amendment

Pg: 29 of 29

Agreement

operative agreement to reduce payments.

document

constitutes

the

Without doubt, what the

parties agreed to—and whether it is memorialized by a writing—is
material.

It is plainly disputed.

And it is a question for the

jury, not the courts.
III.
Where
regarding

a
the

party

“show[s]

existence

of

genuine
an

agreement

party is entitled to a jury trial.
564.

issues
to

of

material

fact

arbitrate,”

that

Chorley Enters., 807 F.3d at

In my view, Galloway has done just that—shown a material

fact in dispute.
dispute.

She is entitled to have a jury decide the

With much respect to my colleagues in the majority, I

therefore dissent.

29