morning your honour's may please the court my name is corey's idel and i am here today representing jacqueline galloway she requests that she be allowed to pursue her cause of action in the united states to support a maryland rather than an arbitration  she be awarded the chance for a jury trial on the issue of which of the potential three contracts the return on the sales contract originally entered into the amendment agreement that is unsigned by cd financial or some oral agreement after november fourteen two thousand and eight controls a contractual relationship between the parties in order to compel a party to arbitrate the federal arbitration act requires that the moving party prove with summary judgment type evidence that there was a written agreement that inclu arbitration clause the only of the three potential contracts that's in the joint appendix in this case that contains a written arbitration agreement or clause is the amendment agreement so i think it's important to know what evidence is in the record and what evidence is not in the record what's in the record is the retail sales contract that everyone agrees the parties entered into galloway was with city financial auto now unless there's something that changes that contract or modifies that contract that's the country that controls the relationship then there's the meme in agreement which is signed by galloway not signed by city financial then there's galloway's testimony under sworn affidavit a declaration  that that's part of the record in which she states that the parties were still negotiating after she signed that agreement after november fourteenth two thousand and eight and then there's also the account payment history in the record here's what's missing from the record what's missing is an m m agreement that's signed by city financial auto a letter from citi financial auto approving the terms of the amendment agreement city financials internal account records stating in any which way that they have approved the amendment agreement or any document or sworn testimony tending to prove that either galloway or city financial auto were performing in accordance with the amendment agreement so i'd like to focus my argument on one or two portions of what was briefed santander's santander's the assignee of city financial auto of the region anselmo sales contract i want to focus on santander's failure to produce an amendment agreement that's it must be signed by the creditor and no oral amendments are binding now that has legal significance under maryland contract law because under maryland contract law a signature is not required to enter into a contract unless the parties state that that assent to a contract is based on a signature so that's what's in the returns on the sales contract this has been affirmed in eastover stores versus minix which is  appeals and more recently by the court special deals in maryland in all states versus daniels now on this basis alone the district court should be overturned without the need for a jury trial as a matter of law without that signature on this amendment agreement there is no proof that cd financial auto assented to the terms of the m m m an agreement and that's that's that's the end of that analysis that i have no further argument on that i think what judge blake missed on this argument in the district court is that she focused only on the fact that there was no requirement in the amendment agreement that there be a signature in order for it to be binding but what the argument is is that the returns from its sales contract required that there be a signature so that so i thought she didn't directly address the the original argument and so i would put that before the court on the issue of entitlement to a jury trial now this this more relates to the evidence that was before the court the fourth circuit just recently issued a published opinion which before circuit doctor the second circuit view of when a party is intended to a jury trial under the federal arbitration act and in that case they adopted the second circuit standard but there was no there was nothing to apply because the evidence in that in that case did not go to whether or not the parties entered into an agreement but more so tended to dispute what the agreement meant so the under the second circuit standard which is now the fourth circuit standard all that's required is an unequivocal denial that arbitration agreement was that it existed and then sufficient facts to support it or another words  so so in this argument the facts have to be reviewed in the light most favorable to galloway and all inferences and all benefits of reasonable doubt related to this evidence of whether there was a meeting of the minds has to be favoring galloway it's it's our position that judge blake did the reverse and it's our belief that that was the case because under very heavy arbitration precedent the rule is that you favor arbitration very that's it's a federal policy to favor arbitration but that doesn't exist until there's actually a contract with an arbitration agreement it goes to the scope of the arbitration agreement this argument goes to whether or not under maryland contract law the parties agreed to the terms of the amendment agreement but let me ask you this and she'd been paying three hundred sixty six dollars or three cents since two thousand eight payment from the original now down to three sixty six forty three if there's no question that at some point galloway and city financial came to some agreement that she could pay less and at that amount would be three hundred sixty six  and forty three cents that's correct but that's not what the memo agreement says it meant agreement says that she would pay three hundred sixty five dollars and fifty seven cents a month it also said that it would become fact of october thirty first two thousand and eight that the payments would be due on the fourteenth of each month and in accordance with that agreement the late fees would be set at ten percent of whatever that monthly payment would be adjudged blake made a statement about how it was a de minimus change is only eighty six cents a month a month difference so i would compare that to a gallon of gas if you pull up to a gas station and prices are low now so let's say it's a dollar eighty a gallon and you go up to the pump and the pump says it's a dollar eighty two a gallon it's just two cents it's not a huge deal if you're driving a  civic but if you're driving an eighteen wheeler that two cents multiplied over three hundred gallons that you're putting in the tank turns into a lot of money this is a seventy two month loan eighty six cents seems not like a lot in the abstract but for someone who's having trouble paying their loan who needs a modification in order to stay current eighty six cents matters over time it's not just eighty six cents it's the interest that's added to the eighty six cents it's also the difference in the payment due date in which the due date gets moved forward by a day someone who's having trouble making their monthly payment on the fourteenth is going to have more trouble making a higher payment a day earlier and the payment history contract requires unqualified acceptance now there's no case in which the male court of appeals has said well this change is so small that we're just going to let it were and let it be we're going to say a contract in fact america court of appeals has has repeatedly stated that silence does not equal acceptance so under this circumstance what we're looking at is galloway saying i w this amount in the amendment agreement city financial doing nothing if we take away her testimony that she spoke to them and that they agreed to a lower amount and then gall cents the amount that's old on the loan is greater because the effective date is later amount of interest that could be charged is greater because the amount is greater she misses payments because the amount is greater  to the effect of whether or not she gets a jury trial the only way she would not be entitled to a jury trial is if the court completely disregard her statement made under oath that she was still negotiating with city financial after she signed this document that is her unequivocal denial that city financial auto excepted this amendment agreement if the financial had accepted the amendment agreement on the terms that are on this document that's in the record what purpose would there have been for her to have a conversation with city financial auto about what amount she'd be paying a month after she signed this document was she she comes in she provides testimony stating this was not a done deal citi financial did not accept this offer santander has nothing to say on this matter they weren't a party to this contract they weren't they hadn't been assigned this contract at the time the only person that can rebut this is city financial auto and santander didn't put anything in the record related to citi financial autos perspective on this or any of their internal documents related to this the morning may please the court my name is robert brunner i represent the pelly santander consumer the issue in this case is whether there exists a valid and forcible agreement between the parties which contains an arbitration provision and the answer to that is yes there are no material fact disputes here not miss galloway asked in approximately october thirty first  thousand and eight she sought a modification if your statement is the agreement that constitutes a contract well that the both the risk and the amendment agreement constitute the contract the amendment agreement had two terms three terms really the first term was that the risk remains valid in a forcible except as modified in the amendment agreement it also the m m in agreement had then two terms besides that one one was lowering the monthly payments and the other contained an arbitration provision which was the entirety of the second page of the amendment agreement was that another document had to have a tray sion clause in no was in the amendment agreement the amendment agreement that you  agreement was signed by ms galloway there is a spot where it says city financial it's not a signature block it just says city financial we would argue that is a signature but even if it wasn't a signature  district court to make that determination i don't think the district court made an error the district court concluded that the offer came from ms galloway and city financial accepted it to be fair we are you know at at at the time we made the motions we argued that the the offer came from city financial next upton's came from his gallery but however you analyze the offer and acceptance there's no doubt that there was a meeting of the minds here the parties intended to enter into the  but in any event what slash will know there was no as slash you maintain as a lawyer that's a signature is it physically a handwritten signature kno well it shows that citibank near putting a name at the end of a document signs that document and is type written understood in this context i believe that is a signature and assen did not do any research of connection with this appeal to determine whether that that block it says city financial constitutes a signature but that is not our present we're not relying on that in connection with this appeal we're relying  upon the fact that a signature even if even if a signature was a condition proceed and what counsel did not indicate both in his papers and in oral argument is that the court of appeals in maryland said a condition proceed can be waived the whole khomeini in case and that so the fact that there isn't a signature here assuming that's not a signature moment hopefully move past that i was that way it it's waived because for several years mrs galloway paid under the amendment agreement never said a word about it and i'm out this not only agreement there was an eighty six cent discrepancy in a maryland court of appeals  not to be a meeting of the minds there must be some material differences between the offer and the acceptance and eighty six cents is not a material difference the only difference here is that eighty six cent discrepancy and so there is a meeting of the minds here there's no counsel did not cite a single case saying that this eighty just six cent discrepancy constitutes a lack of intent on the on behalf of the parties to enter into an whatever that had happened so it was an all or no it did happen because she sent back the amendment agreement signed it and immediately thereafter when her payment was due or payment was due mid december she made a payment on december thirteenth and she continued to make payments mid month as required under the amendment agreement for four and a half years so she was following the amendment agreement her actions indicated an intent to enter there there actually isn't because what what ms galloway is arguing here is that there are material fact disputes but all the but all they're doing is character zing the record evidence in a way that they're arguing under the law is not a binding enforceable agreement but the facts themselves all of the facts the parties agree there isn't a single dispute about the material facts here and so as the lower court correctly concluded and i would argue this court can conclude as a matter of law there's a binding and enforceable agreement here that contains an arbitration provision and  anybody out there and i don't know if this is some unique area the law that we can carve out this exception that just does not seem to be a good argument to me from a corporate perspective not just for this case going on it might work here i don't think you want to be healed of that stand in the future but that's not what we're lying upon here we're relying upon the district course of terminations that the offer and acceptance came city financial made the offer galloway made binding even though it says right on it there's more to be done there the only more to be done is that city financial must approve it it doesn't say it has to be in writing it net th there's nothing to indicate they've done it but actually there is because for that document it doesn't have to be in the document is nothing in the document that says that any approval has to come from city financial in writing at all all in all don't tell me oh you know relying on the strength of evidence that we look at now in the the analysis is the totality of the circumstances and looking at whether there's an offer an acceptance and here there is no doubt that she and it did so i mean you know i mean how do you know this when we do know because for years she made the payment and city financial accepted the payment and accepted the lower doesn't say anything of that kind the agreement here was was made to end for four and a half years she abided by it and didn't say boo about it neither of the parties did it was only after not even a complaint and not even after her car was repossessed it was only in response to our motion to compel arbitration that she said wait a minute there's no agreement here but for years she never said anything about it and now she's coming back and she's saying i accepted those lower payments i got the benefit of the amendment agreement i was able to lower my payments as i requested for four and a half plus years and now my only obligation under the amendment agreement i'm going to turn my back on that and not comply with it  of our position here but city financials actions for years demonstrated that it accepted the amendment agreement both sides did the record evidence and there again no material facts here the fact is peanuts here at the record evidence demonstrates that both sides intended to enter into the amendment agreement and both sides complied with it she made her monthly payments or didn't in some cases for years and never said a thing about it and said you financial for its part lowered her monthly payments and accepted the monthly payments for years and never said anything about it so i would argue that the district court got it right by demonstrating that the parties intended to enter into the agreement and that this court should affirm that decision if i can in my remaining  minute and a half just hit on a couple of points here counsel argues that there might have been some third party agreement out there and there's nothing in the record to suggest that there is some third agreement out here or any agreement and as i said before with respect to the jury decision there are no material fact disputes here what ms galloway is arguing is she's she's inter bring the facts but there's no fact dispute here that's been that would be  for a jury to decide so this court can decide as a matter of law that it's a binding and forcible agreement and just a couple that ticked off a couple points the eighty six cent discrepancy at the end of the day even if it was a modification it was accepted by the  is not it right but she will offer is no evidence of any kind to suggest that there was some other agreement other than the amendment agreement the charlie case requires more than just a self serving affidavit there i did say that i'm out she's not backing it up she offers no evidence whatsoever that there was any discussions about let's say that back she didn't pay that amount so she paid eighty six cents more correct but there's no evidence that it been one hundred dollars  that there must be material differences between the parties there were no men there was not a material difference here between the parties it was an eighty six cent discrepancy and in any event the abuse extent discrepancy was modified and accepted and she waived any argument i  would say a material difference can be a question of law for the for the district court to determine that they can they can make a determination whether there was a offer an acceptance and as the courts have opined when the two parties are going back and forth and one party is saying x and the other party saying why an x and y are different the parties court says there's no meeting of the minds but here there is a meeting of the minds she did accept it she paid it for four years and never said a word about it there's no evidence that the fact that many of the parties did anything but intend to abide by the an amendment agreement i think i've gone way past  if there you know what your fault question is you cannot do it can i take a moment just to wrap up where would you was if you could do it in thirty sec ok indigo i'll get back to the signature for just a moment with respect to the signature of the signature and moore's two you can argue the nurse to either benefit a benefit of either ms galloway or city financial but the whole court made it clear that you can waive condition proceedings they can be waived by the actions of the parties and in this case ms galloway never said hey what are you talking about we don't have an agreement she never made a phone call there's no written communication of any kind likewise city financial never said anything about an amendment agreement not being entered into so signature or not that signature can be waived by the parties and here it was done so thank you  we'll thank your honour's briefly i just want to state that this issue about the signature block being a signature city for santander they never even claimed that that was a signature in the district court their argument the entire time was that there was no need for a signature so i don't even know i don't even understand that argument today the second the second thing i want to straighten out is that the district court judge blake she found consistent with fourth circuit precedent that the amendment was not an offer because it reserved the right for approval which is exactly what this court held in spalding versus wells fargo bank which is the fourth circuit this this court case in two thousand and thirteen and this is this is a risen so many times i can put a number on it it arises under loan modification agreements we do mortgages hot button litigation for the last five six years where individuals contact the bank to ask for a loan modification the bank sends them an agreement that says you know this is what this is what the will look like but we're going to approve it after you sign it that's exactly what happened in this case and it's exactly what happened in this was fargo case and so i want to address judge wins concern about whether this issue only relates to this case the signature issue the fact that citi financial in sign this document it's really important it's more important in this case because the reason that the banks aren't signing the agreements is because they can later go back when these this litigation  going to stand up and contest so the consumer signs the agreement they're acting under the agreement they come into court and then wells fargo says in this case well we don't we never prove this there are several document it well she doesn't that offers not only table anymore they're signing a multi she she is she is paying and amount based on what they have expressed she can pet she tells them i'll agree to pay this three hundred sixty five dollars fifty seven cents she winds up paying three hundred sixty six thousand four hundred forty three cents not her on her own volition why would ms galloway pay more then the agreement when she is struggling to make her payment to because the contract would be the contract that mr galloway was performing the contract that in this instance c financial would have signed is not her offer any more they didn't push that happened it didn't happen but and i would also add that i'm not sure the u c c applies to this contract anyway as it was entered into under maryland credit grantor's closing credit with visions and the whole so we we've had history in in that area in other cases  d in any event i want to quickly address this waiver of the signature requirement  santander argues that even if even if i'm right on all these issues galloway waived this requirement that citi financial sign the amendment agreement because she performed for four years or six years or however many years it was she never objected but the contrary position that is what would she have been objecting to when her subjective belief was that that provision didn't apply to her santander's in here today saying well she never said that she didn't she didn't want to arbitrate but why would she say that her entire position in this case is that that is not her agreement with citi financial her agreement was to pay three hundred sixty six dollars and forty three cents which was agreed to after november fourteenth which is after the day that she signed this document so in order to in order for her to have waived or order for her to be a stopped she had to be waiving or stopping her rights under the amendment agreement she could not have been waving or she can't be a stop from arguing that she has waived her stop under the retail installment sales contract or this subsequent oral agreement because that provision doesn't exist in those contracts and finally santander takes a position today that there's no dispute on any of the facts well if that's the case then there greening that city financial agreed to modify the payment to three hundred sixty six dollars and forty three cents after she signed this document i don't know i don't know how she would be restricted