The Idaho Supreme Court has held that a company cannot show a valid agreement to arbitrate through amendment when the contract conditions the right to amend and no evidence is presented as to whether the company complied with those conditions.

In MBNA America Bank, N.A. v. Fouche, No. 34054, 2008 WL 2586403 (Idaho July 1, 2008), Fouche acquired a credit card from MBNA. After Fouche allegedly failed to make payments on her account, MBNA filed a claim in arbitration. Fouche objected, claiming that no agreement to arbitrate existed between the parties. The arbitrator issued an award in favor of MBNA.

MBNA moved to confirm the award, and Fouche opposed the motion. Treating the parties' motions as motions for summary judgment, the trial court held that there was a genuine issue of material fact as to whether an arbitration agreement existed. After a hearing, the district court found that the original contract between the parties did not contain an arbitration agreement, but that MBNA did reserve the right to unilaterally amend the contract under certain circumstances. The district court held that an affidavit submitted by MBNA established that the contract was validly amended to include an arbitration agreement. The district court confirmed the award.

On appeal, the Court found the record was not sufficient to determine whether the arbitration agreement was validly added to the original contract through notice to Fouche. The original contract did reserve a limited right to MBNA to unilaterally amend the contract in certain circumstances, but the Court could not ascertain the specific circumstances under which the right arose because the original contract was not part of the record. Therefore, according to the Court, the undisputed evidence submitted by the parties did not show that MBNA was entitled to amend the agreement when it did, or that the agreement was so amended.

In this decision, the Idaho Supreme Court suggests that the original contract must be part of the record in order to determine whether a party has validly exercised a conditional right to amend the contract. See also MBNA America Bank, N.A. v. McGoldrick, No. 34055, 2008 WL 2586304 (July 1, 2008) (also holding that MBNA's method of modification was ineffective).

Other courts have held that, without such qualifications on the right to amend in the original contract, amendments through mailings unilaterally offered by one party are generally effective. See e.g., Samadi v. MBNA America Bank, N.A., 178 Fed.Appx. 863 (11th Cir. Apr. 21, 2006), cert. denied, 127 S.Ct. 494 (U.S. Oct. 30, 2006), rehearing denied, 127 S.Ct. 1361 (U.S. Feb. 20, 2007) (holding that MBNA's method of modification was valid in light of Del. Code tit. 5, § 952(a), allowing a bank to amend a revolving credit contract in any respect at any time).