Recently, in William Von Kuehlman v. Bank of America, N.A., Case No. 5D14-2131, The Fifth District Court of Appeals analyzed some interesting facts. The Lender had offered the Borrower a loan modification and the terms of the offer required him to accept it by a certain day. The Borrower signed the agreement but returned it late along with the first modified payment. The Borrower made six more payments in the modified amount, all of which were late, but which the Lender accepted and deposited.

The Lender argued that no modification had occurred because of the Borrower's late acceptance. However, the Court found that the Borrower's late acceptance of the modification operated as a counteroffer. The Court concluded that the Lender had accepted the counteroffer by its months of silence and its acceptance of nine monthly payments as specified in the modification agreement.