But Judge, We Never ‘Signed’ Anything

A recent Order out of the Northern District of Georgia casts doubt on the notion that a deal is not done until you sign on the dotted line. In White v. Bank of America, John White got a home loan with Bank of America. Mr. White quickly fell behind on his payments and received several default notices from the bank. Mr. White asked to modify his loan and in July 2009, BoA sent Mr. White an offer letter and a proposed Loan Modification Agreement. The offer letter, printed on BoA letterhead and closing with the salutation “THE HOPE TEAM”, congratulated Mr. White on being approved for modification. To take advantage of his offer, all Mr. White had to do was complete and return the Loan Mod Agreement within 30 days.

Mr. White signed the Agreement before a notary public and timely returned it. However, the notary who took Mr. White’s signature dated the document in a space intended for her printed name. On receipt, BoA notified Mr. White that it was “unable to process the modification” due to an “Incorrect or Incomplete Notary Signature”. Thereafter, BoA sold Mr. White’s home on the courthouse steps.

Mr. White sued BoA for breach of contract and wrongful foreclosure. Believing the facts and law squarely on his side, Mr. White asked for a summary judgment in his favor without the necessity of a trial. For its part, BoA asked the Court to dismiss Mr. White’s case, arguing that it never “signed” the offer letter, or “countersigned” the Agreement. Therefore, no binding contract was formed.

The trial court found for Mr. White, holding that the offer letter and Agreement to contained all the necessary elements of an enforceable contract. The Judge then cited long standing precedent for the proposition that a contract is “signed” when it is affixed with “any symbol executed or adopted with present intention to adopt or accept a writing.”

Applying this precedent, the Judge noted that BoA’s name and corporate logo were prominently displayed, along with the salutation, “THANK YOU FOR YOUR BUSINESS … The HOPE Team” on the offer letter. The Court concluded that these symbols constituted “an authentic writing prepared by” the bank, and effectively constituted BoA’s ‘signature’ on the offer letter and the accompanying Agreement.

What can we learn from this? A signature is but one manifestation of an intent to be bound to the terms of a writing. Other indicia can include the use of company letterhead, an email signature block, or even a voicemail. At the end of the day, it’s not so much the signature, but the intent to be bound, coupled with all the elements of an enforceable contract (a blog post for another day), that matters.