                              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.
TRAXLER, Chief Judge:

       Jacqueline      Galloway        appeals         a     district       court        order

dismissing     her    action     against         Santander      Consumer       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   RISC    contained      the   transaction’s            financing    terms       as

well    as    information           concerning          repossession        rights        and

procedures.     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      was     greater.              The   RISC     also    included       a

modification        provision       stating       that      “[a]ny    change    to        this

contract must be in writing and we must sign it.”                       J.A. 20.

       The   RISC     was     assigned           to    CitiFinancial         Auto,        Ltd.

(“CitiFinancial”),          which     took       a     security      interest       in    the

                                             2
vehicle.       Sometime before October 31, 2008, Galloway contacted

CitiFinancial       requesting     a    reduction        in    the    amount     of     her

monthly      loan   payment.      The    CitiFinancial         representative         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.”                            J.A.

25.     It    requested    that   after       she     signed    the    paperwork,       she

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

and    consideration.”         J.A.     25.      It    also    requested       that    she

“retain a copy of this agreement for [her] records.”                         J.A. 25.

       The two remaining pages constituted an amended agreement

(the    “Amended       Agreement”).           Under    its     terms,    the    Amended

Agreement      would    take   effect    on     October       31,    2008;    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
under        which       Galloway,          CitiFinancial,            and    CitiFinancial’s

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

contract,       tort      or       otherwise,”    rather       than     proceed     through       a

court       action. 1        J.A.     26-27.      The     arbitration        agreement         also

prohibited Galloway from serving as a class representative or

participating           in     a    class     action    if    arbitration        was    elected.

Finally,       the      Amended       Agreement        provided      that   “all       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         does    not      reflect       that     CitiFinancial           ever

specifically         sent          Galloway    written        approval      of    the    Amended

Agreement.           Nevertheless,            Galloway       states    in   her    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
        In    her    declaration,             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.                J.A. 17.       However, the record contains no

evidence       of    any        specific       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.”               J.A. 17.

       In     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       to       provide    sufficient          notice       before     selling      her

vehicle.       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
Galloway denied that the parties had an agreement to arbitrate

and    alternatively         claimed    that       any    arbitration           agreement      was

unenforceable      under       the    FAA     because         it    was    not    in    writing.

Galloway    also       moved    to     amend       her    complaint,         and       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       as    support        for      its      position       that    the

parties    agreed       to     arbitration.              The       court    concluded         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.               See id.

       Alternatively,         the     court        concluded        that    CitiFinancial’s

proposal    to     reduce       the     payment          to    $366.43       constituted         a

                                               6
counteroffer to make a minor modification to the dollar amounts

in the Amended Agreement, which Galloway accepted by making the

payments    in       the    amount   requested          for   several    years    without

objection.          See    id.     The   district        court    rejected   Galloway’s

argument    that      no    new    contract       was    formed    because   Galloway’s

returning       a    signed       original    of        the   Amended    Agreement      to

CitiFinancial         and    CitiFinancial’s            written    assent    were      both

conditions precedent to modifying the RISC.                       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    of   the

agreement in the form of reduced monthly payments.                       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   written        arbitration      agreement     was

enforceable under the FAA. 2              See id. at *3 n.4.            On that basis,

the     court       initially      granted        Santander’s      motion    to     compel

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

      2 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
id.,   at   *5.         However,          on     reconsideration,            the    court,    citing

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

F.3d    707,   709-10          (4th       Cir.     2001),         entered     a    final     judgment

dismissing        the    case        so     as    to        allow     Galloway      to    pursue     an

immediate appeal.

                                                      II.

       “We review de novo the district court’s judgment compelling

arbitration,       as        well    as     any       questions        of   state    contract       law

concerning the validity of the arbitration agreement.”                                       Santoro

v.    Accenture     Fed.           Servs.,       LLC,       748    F.3d     217,   220     (4th   Cir.

2014).

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

devices     for    enforcing           an      arbitration            agreement:         a   stay    of

litigation        in         any     case        raising          a    dispute      referable        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).                      Before the FAA was enacted, “courts

were    hostile         to     the    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         judicial     enforcement       of

                                                       8
privately made agreements to arbitrate by placing them upon the

same footing as other contracts.”            Id. (internal quotation marks

omitted).    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     she   argues   that   the   district


                                        9
court erred in concluding, without the benefit of a jury trial,

that       the   provision    was   a   term     of   any   contract     she   and

CitiFinancial entered into.             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    could    return   a   favorable

verdict under applicable law.”                 Chorley Enters., 807 F.3d at

564.        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).


                                          10
     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    .     .   .,     courts     generally         .   .   .    should   apply

ordinary       state-law       principles        that      govern      the      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.                               See Cochran v.

Norkunas,      919   A.2d      700,      708    (Md.      2007).        “Manifestation         of

mutual assent includes two issues:                        (1) intent to be bound, and

(2) definiteness of terms.”               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).                     Importantly, an acceptance may be

manifested      by   actions        as   well        as   by   words.          See   Porter    v.

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



                                                11
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         theories

concerning how a meeting of the minds occurred here.                                   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        constituted           her        acceptance        of       the     Amended

Agreement.      Just       as    the    district        court     did,      we    reject      this

argument    because        CitiFinancial             made    clear     to     Galloway,       both

orally    and   in    writing,         that     it     retained       the     right     to    deny

Galloway’s      request         for     lower          monthly        payments.              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        execution       of    the        Amended    Agreement        and    her

sending    of   a    copy       of   the      signed        document     to      CitiFinancial

constituted     not       an   acceptance        of    an     offer    made      to    her,    but

rather an offer to CitiFinancial to enter into the agreement.

                                                12
       Santander         alternatively        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    the      amount     the    Amended     Agreement         specified,       a

difference        described      by    the    district       court    as   “de   minimis.”

Galloway, 2014 WL 4384641, at *3.                        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     arguendo        that   Galloway        is    correct        that

CitiFinancial’s             actions    did     not    bind      the    parties        to    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.


                                               13
      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.                                   Within

approximately      one     month,    at    some    time    early      enough       to    allow

Galloway     to    make    her     December       payment     in      the    new     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.                 See Learning Works, Inc. v.

Learning     Annex,       Inc.,     830    F.2d    541,     543       (4th    Cir.       1987)

                                            14
(“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      to    the   Amended         Agreement.

Nevertheless,         her   making      payment    in     the    revised         amount

CitiFinancial       requested     and    then     continuing       to     make     those

payments      for   several     years    without       complaint        can    only   be

interpreted as an assent to the terms of the Amended Agreement

as slightly modified by the company.                   See Restatement (Second)

of Contracts § 19(2)           (“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
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.                    Galloway asked CitiFinancial if it

would    modify         the   RISC   to   lower       her    required    monthly     payment

amount.        In       the    context     of    the       parties’    dealings,     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       if       Galloway     returned        the     signed     document    to    the

company.       When, after its formal review process, CitiFinancial

proposed       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.

                                                16
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      performance       of    a     promise    arises”)   (internal

quotation    marks       omitted).      While      that   legal   proposition   is

correct,    no     term    in   the     Amended     Agreement     indicated   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     sought   from

Galloway was payment in the new amount.                   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



                                           17
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   writing.             However,       under   Maryland     law,

contractual        limitations         on     future      modifications      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   agreement         by    their   conduct    “notwithstanding         a

written     agreement     that    any       change   to   a   contract     must   be   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



                                             18
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   Accordingly, the district


     6 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.


                                19
court properly concluded that the arbitration agreement was a

term of a contract that the parties entered into.

                                             B.

       In     addition       to   her    state-law    arguments,      Galloway           also

maintains       that     any      arbitration     agreement    that      the       parties

entered into is not enforceable under the FAA.                   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.           We have stated that “[a]pplication of the FAA

requires       demonstration        of,”    among    other    things,     “a       written

agreement that includes an arbitration provision which purports

to    cover    the     dispute.”         Rota-McLarty,   700     F.3d    at        696   n.6

(internal quotation marks omitted).                  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   the     Amended       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


                                             20
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     within      the   FAA’s    scope      is   an     “actual

document—the       physical     embodiment     of     the    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

                                         21
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       an    arbitration            clause.”    (alterations       &

internal       quotation     marks      omitted));           Fisser     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       provision          itself      be    in    writing.         Ordinary

contract    principles          determine         who   is    bound     by    such   written

provisions.”       (footnote         omitted)).              Because    the      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    written         arbitration    agreement

                                              22
enforceable under the FAA.           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.                     All

that    is   required   is    that    the     arbitration     provision    be    in

writing.”      (citations     omitted)).         The    district    court       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




                                        23
WYNN, Circuit Judge, dissenting:

       The question at the heart of this appeal is whether the

parties formed a written agreement to arbitrate.                  Santander says

yes,    pointing     to   a   (problematic)   amendment     document    with    an

arbitration     clause;       Galloway    says   no,     declaring     that    the

operative modification contract was never reduced to writing.

In    short,   the   parties    dispute   a   material    fact:    whether     they

entered    into      a    written   agreement    to      submit     disputes    to

arbitration.       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.    The original contract contained

no arbitration provision.           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
is    at   the     center      of   this        appeal.        Galloway      contacted

CitiFinancial       and     requested      that     her   monthly      payments      be

reduced.     In response, CitiFinancial sent Galloway a fax letter

and   an   “Amendment     Agreement”       and    instructed     her   to    sign   the

“Amendment       Agreement”     and     return      it    to    CitiFinancial       for

“review, approval and consideration.”                 J.A. 25.      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.         But CitiFinancial never signed the Amendment

Agreement.       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



                                           25
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.”                       J.A. 17 (emphasis

added). 1    Santander proffered no evidence affirmatively refuting

Galloway’s    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    a     party    “show[s]       genuine      issues   of   material     fact

regarding     the    existence        of    an     agreement      to   arbitrate,”     a

standard we have likened to “the burden on summary judgment,”

that party is entitled to a jury trial on the issue.                              Chorley

Enters. v. Dickey’s, 807 F.3d 553, 564 (4th Cir. 2015).                           And we

review   a   district       court’s    judgment         compelling     arbitration     de


     1 It is, therefore, inaccurate to suggest that the record
contains “no evidence,” ante at 5, of discussions between
Galloway and CitiFinancial.


                                            26
novo.    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    Agreement—which        required       “review,   approval     and

consideration”      by     CitiFinancial,         J.A.    25—CitiFinancial       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

                                           27
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    and    that   Galloway       had    already

indicated she would accept.”        Ante at 14.

     Instead,   this     is   a   classic   case    of   he   said/she       said.

Galloway claims that the parties’ ultimate agreement to lower

her monthly payments was never reduced to writing.                       Santander


     2 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)).


                                     28
claims    that       the   Amendment     Agreement   document     constitutes     the

operative agreement to reduce payments.                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     a    party    “show[s]    genuine   issues      of   material   fact

regarding      the     existence    of    an    agreement   to   arbitrate,”     that

party is entitled to a jury trial.                Chorley Enters., 807 F.3d at

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

fact in dispute.              She is entitled to have a jury decide the

dispute.       With much respect to my colleagues in the majority, I

therefore dissent.




                                           29
