Pub. 5 2014 Issue 4

winter 2014 19 West Virginia Banker Sandra Murphy concentrates her practice in banking, commercial and financial services and securities law. She can be contacted directly at (304) 347-1131 or via e-mail at smurphy@bowlesrice.com. Floyd Boone has extensive experience representing financial institutions in lawsuits brought by consumers and regulators. He can be reached at (304) 347-1733 or by e-mail at fboone@bowlesrice.com. depositors do not generally sign their names to the actual check- ing account agreement nor do they always receive a copy of the agreement before they sign a signature card. A myriad of other agreements are also incorporated by reference into depositors’ core agreement, including agreements covering debit cards, online banking, and online bill-pay. As a result, the Court’s deci- sion in U-Haul could have dramatic implications with respect to the enforceability of financial institutions’ agreements with their customers. Based on U-Haul, financial institutions should examine not only the substance of their deposit account and loan agreements, but the processes they use to enter into agreements with their cus- tomers. Wherever a financial institution uses an agreement that incorporates the terms and conditions of a separate agreement by reference, it should consider whether the specific language used to make the reference: (i) is “clear,” (ii) describes the sepa- rate agreement such that its identity can be “ascertained beyond doubt,” and (iii) is certain enough that the parties can be held to have had knowledge of the incorporated document and assented to its terms. In addition, where terms included in a separate agreement are very important to the financial institution, the customer, or both, the institution should refer to those terms specifically in the language incorporating the separate agreement. Lastly, after the U-Haul decision, banks should provide customers with complete copies of all separate agreements that are to be incorporated by reference before customers sign the agreement that incorporates the separate agreements. Using the example of signature cards and the opening of checking accounts, this means that custom- ers should not be allowed to sign their signature cards until after (1) they have received copies of every agreement that will be incorporated by reference into their deposit account relationship and (2) have had an opportunity to review each agreement. To avoid potentially profound hurdles in exercising their contractual rights following U-Haul, financial institutions should carefully review and analyze their standard agreements governing deposit accounts and loans and the processes utilized in the signing of these agreements. n [Authors’ note. Bowles Rice LLP was counsel to U-Haul in the U-Haul litigation. The opinions and suggestions provided in this article are those of Ms. Murphy and Mr. Boone and are not necessarily those of Bowles Rice LLP or any of its clients.] Should you requiremore information concerning the legal and business aspects of the above, please feel free to contact the authors directly. Both are attorneys in the Charleston, West Virginia office of Bowles Rice.  Supreme Court — continued from page 17