Summary:
In Trimble v. Entrata, Inc., the Fourth Circuit has again reminded businesses that the Federal Arbitration Act may favor arbitration, but it does not allow a company to manufacture an enforceable arbitration agreement out of contractual smoke and mirrors.
In a published 2-1 decision, the Fourth Circuit affirmed the denial of Entrata's motion to compel arbitration, holding that its purported promise to arbitrate was illusory under Maryland law because Entrata's online terms allowed it to change those terms without meaningful advance notice.
For consumer attorneys—and particularly those confronting increasingly ubiquitous online "terms and conditions"—Trimble is worth keeping handy.
$6.80 Here, $7.95 There—and Suddenly a Class Action
Kaitlyn Trimble used Entrata's "ResidentPortal" to pay rent at a Maryland apartment complex. Each time, Entrata collected a "convenience fee." Before completing payment, Trimble had to check a box accepting hyperlinked terms and conditions, although she was not required actually to open or read them.
The individual amounts were hardly enormous: Trimble alleged six convenience fees ranging from $6.80 to $7.95.
But that is precisely why consumer class actions exist.
Trimble alleged, on behalf of herself and similarly situated tenants, that Entrata was operating as an unlicensed collection agency and improperly collecting these fees. Her complaint asserted claims under the Maryland Collection Agency Licensing Act, Maryland Consumer Debt Collection Act, Maryland Consumer Protection Act, and common-law theories.
Entrata responded with the increasingly standard corporate defense:
Arbitration.
"We Can Change This Agreement Whenever You Come Back"
Entrata's terms contained a broad arbitration provision requiring arbitration of claims arising from use of ResidentPortal. But elsewhere in those same terms was a "Change Clause":
"This Agreement may change from time to time, so please review it when you visit [ResidentPortal]."
The problem was that a customer became bound by whatever version existed upon accessing the website.
There was no meaningful requirement that Entrata warn customers beforehand that the terms had changed. Its notice provision essentially told customers to check the website for notices and deemed notices received when posted.
That creates an impressive contractual Catch-22: the consumer should check the website to see whether Entrata has changed the contract, but by visiting the website to check, the consumer has already become bound by the changed contract.
The Fourth Circuit was not impressed.
An Arbitration "Promise" That Isn't Really a Promise
The important point in Trimble is that the court did not decide whether arbitration was fair, efficient, or desirable.
It asked the much more basic question:
Was there an enforceable agreement to arbitrate in the first place?
The FAA certainly embodies a federal policy favoring arbitration, but that presumption does not answer the preliminary question whether a valid arbitration agreement exists. Ordinary state contract law determines whether the parties actually formed a contract.
Under Maryland law, consideration requires a real binding obligation. A supposed promise that leaves the promisor free to decide whether it will actually perform is merely an illusory promise.
Because Entrata's Change Clause broadly applied to the entire contract—including the arbitration provision—Entrata had retained discretion to modify its supposed promise to arbitrate without a meaningful limitation or effective advance-notice requirement.
If Entrata could effectively rewrite the rules before the consumer had any opportunity to reject them, its promise to arbitrate wasn't much of a promise.
No real promise means no consideration.
No consideration means no contract.
And no contract means no arbitration.
Johnson Strikes Again
The Fourth Circuit relied heavily on its 2025 decision in Johnson v. Continental Financial Co., 131 F.4th 169 (4th Cir. 2025).
Johnson rejected a similar attempt to preserve arbitration where a company retained broad authority to modify contractual terms. The critical protection is meaningful advance notice—notice that actually gives the other party an opportunity to terminate the relationship before the new terms become effective.
Merely posting revised terms online after the company has changed them does not accomplish that. As the Trimble majority explained, that sort of post-hoc notice does nothing meaningful to constrain the party holding the unilateral power to modify the agreement.
That distinction matters well beyond rent-payment portals.
Consumer attorneys should examine modification provisions whenever a creditor, debt collector, bank, fintech company, landlord, servicer, or other business attempts to compel arbitration based upon electronic terms.
Do not just read the arbitration paragraph.
Read the entire contract.
The provision that defeats arbitration may be buried ten pages away under headings such as "Changes," "Amendments," "Notices," or "Terms of Use."
"Just Don't Pay Your Rent Online"
Entrata argued that there actually was a limitation on its power: revised terms would not bind Trimble unless she returned to ResidentPortal. So, Entrata argued, she could simply stop using the website.
The majority found that argument inconsistent with common sense.
The consumer could not even visit ResidentPortal to determine whether Entrata had changed its terms without thereby becoming bound by the new terms. The supposed choice not to accept the modification was therefore illusory.
There is also a practical reality here worth emphasizing.
This wasn't a website for buying concert tickets or ordering another pair of shoes.
Trimble was paying her rent.
Telling a residential tenant that she can protect herself from changed contractual terms by simply never returning to the portal through which she has been paying her landlord is a rather peculiar conception of meaningful consumer choice.
Judge Rushing Dissents
Judge Allison Jones Rushing dissented and presented a serious alternative interpretation.
She viewed the terms existing when the customer made a transaction as remaining binding as to that transaction, while later modifications governed later visits. On that reading, Entrata could not retroactively rewrite the arbitration obligation governing an already-completed transaction.
Judge Rushing also reasoned that Entrata was constrained because modified terms did not become binding until the customer returned to ResidentPortal. Since the customer—not Entrata—controlled whether that happened, she concluded Entrata's discretion was not unlimited.
The dissent even acknowledged that forcing consumers to visit the portal—and thereby accept revised terms—before they could see those terms might be unfair, but argued that unfairness and lack of contractual consideration are different questions.
That disagreement makes Trimble particularly interesting. The majority isn't merely policing obviously fraudulent contract language. It is applying traditional consideration principles to the increasingly artificial world of digital contracting.
And What About Chapter 13 Debtors Locked Out of Their Mortgage Accounts?
Trimble also deserves consideration in the continuing effort, highlighted by Klemkowski despite its subsequent vacatur, to ensure that Chapter 13 debtors retain online access to their mortgage accounts.
An August 2026 Working Group Report, primarily organized by the mortgage servicing industry, with involvement—but apparently not overt official support—from the National Association of Chapter 13 Trustees (NACTT), recognizes that online access can reduce defaults, improve Chapter 13 plan performance, and help debtors retain their homes and vehicles.
At the same time, servicers worry that ordinary portal information may conflict with Chapter 13 plan treatment or trustee accounting and potentially create liability as improper collection activity.
One proposed solution is prominent bankruptcy disclaimers, potentially accompanied by a click-through acknowledgment.
And that is where Trimble provides an important caution.
A Chapter 13 debtor should not have to accept a new arbitration provision, class-action waiver, unilateral modification clause, or waiver of bankruptcy or consumer-protection rights merely to regain access to information about the debtor's own mortgage.
The distinction should be simple:
Notice is not a contract.
A servicer can require acknowledgment that portal balances may not reflect the confirmed Chapter 13 plan or trustee accounting without making online access conditional on accepting new contractual terms.
That also supports the Working Group's better long-term solution: a statutory safe harbor under §§ 362 and 524 protecting servicers that provide ordinary online information and voluntary payment access.
Klemkowski identified a real problem even though the decision was vacated. Trimble adds an important warning about the solution:
Chapter 13 debtors should not have to trade substantive legal rights for the ability to click "Continue to My Mortgage Account."
Consumer Attorneys Should Stop Treating Arbitration Clauses as Invincible
For decades, consumer lawyers have watched arbitration clauses expand into credit cards, bank accounts, auto financing, rental agreements, payday loans, debt collection, mortgage servicing, cell phones, nursing homes, employment agreements, and nearly every other corner of consumer commerce.
That can create a dangerous tendency to see the words "ARBITRATION AGREEMENT" and assume the battle is already lost.
Trimble is another reminder that it isn't.
Before fighting about unconscionability or the scope of an arbitration provision, start with something more fundamental:
Did the parties actually form an enforceable agreement?
Look for unilateral amendment provisions. Look at notice requirements. Determine when amendments become effective. Ask whether the consumer has an actual opportunity to reject a modification before becoming bound by it. And determine whether the company's supposed promise to arbitrate actually binds the company to anything.
The Fourth Circuit summed up the principle nicely: digital technology may have changed how contracts are presented and supposedly accepted, but fundamental principles of contract law continue to apply.
A hyperlink doesn't repeal contract law.
Neither does a checkbox.
And, particularly for Chapter 13 debtors simply trying to see and pay their mortgages, neither should become the price of admission to their own account information.
To read a copy of the transcript, please see:
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