Cynthia K Newmeyer v. Bank of America Inc ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CYNTHIA K. NEWMEYER and LAWRENCE UNPUBLISHED
W. NEWMEYER, August 22, 2019
Plaintiffs-Appellants,
v No. 343206
Kalamazoo Circuit Court
BANK OF AMERICA, INC., and FEDERAL LC No. 2015-000368-CH
HOME LOAN MORTGAGE CORPORATION,
also known as FREDDIE MAC,
Defendants-Appellees.
Before: GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this proceeding to enjoin a pending foreclosure, plaintiffs Cynthia K. Newmeyer and
Lawrence W. Newmeyer appeal by right the trial court’s order granting summary disposition in
favor of defendants Bank of America, Inc. (BOA), and Federal Home Loan Mortgage
Corporation (Freddie Mac). We affirm.
I. BACKGROUND
In 2007, plaintiff Cynthia K. Newmeyer secured a $193,000 loan from Countrywide
Bank, N.A., to finance the purchase of a home in Kalamazoo. As security for the loan, plaintiffs
mortgaged the home to Mortgage Electronic Registration Systems, Inc. (MERS), which was
acting as nominee for Countrywide. The mortgage was eventually assigned to defendant BOA.
In 2011 and 2012, the loan was modified. Plaintiffs were offered a trial period for a third
modification; however, they responded by requesting more information, and the loan was not
modified for a third time. In 2015, it is undisputed that plaintiffs defaulted on the loan. BOA
sent notice of a foreclosure sale. Plaintiffs responded by commencing this lawsuit with a 10-
count complaint. The trial court granted defendants’ motion for summary disposition and
dismissed all 10 counts.
II. STANDARD OF REVIEW
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“We review de novo a trial court’s decision on a motion for summary disposition to
determine whether the moving party is entitled to judgment as a matter of law.” Cuddington v
United Health Servs, Inc, 298 Mich. App. 264, 270; 826 NW2d 519 (2012). “In reviewing a
motion brought under MCR 2.116(C)(10), we review the evidence submitted by the parties in a
light most favorable to the nonmoving party to determine whether there is a genuine issue
regarding any material fact.” Id. “A genuine issue of material fact exists when the record leaves
open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274
Mich. App. 307, 317; 732 NW2d 164 (2006). The trial court’s determination that some of
plaintiffs’ claims were subject to summary dismissal on the basis of the statute of frauds
implicated MCR 2.116(C)(7). This Court must consider the documentary evidence submitted for
purposes of a motion brought under MCR 2.116(C)(7) in a light most favorable to the
nonmoving party. Snead v John Carlo, Inc, 294 Mich. App. 343, 354; 813 NW2d 294 (2011). “If
there is no relevant factual dispute, whether a plaintiff's claim is barred under a principle set forth
in MCR 2.116(C)(7) is a question of law for the court to decide.” Id.
III. ANALYSIS
Plaintiffs argue that the trial court erred in dismissing all their claims. After review of the
parties’ arguments and the record, we disagree.
In Counts I and II, plaintiffs alleged fraud and misrepresentation. In Zaremba Equip, Inc
v Harco Nat’l Ins Co, 280 Mich. App. 16, 38-39; 761 NW2d 151 (2008), this Court set forth the
elements of fraud, stating:
To establish a prima facie case of fraud, a plaintiff must prove that (1) the
defendant made a material representation, (2) the representation was false, (3) the
defendant knew that it was false when it was made, or made it recklessly, without
any knowledge of its truth and as a positive assertion, (4) the defendant made the
representation with the intention that the plaintiff would act on it, (5) the plaintiff
acted in reliance on it, and (6) the plaintiff suffered injury because of that reliance.
In this case, Count I plaintiff alleged that BOA’s predecessor Countrywide
misrepresented to plaintiffs that private mortgage insurance (PMI) was mandatory. There is no
genuine issue of material fact that Countrywide did not falsely represent that PMI was
mandatory. Rather, in 2007, when Cynthia Newmeyer secured the loan from Countrywide, she
signed a “Mortgage Insurance Disclosure” that provided that PMI was mandatory until certain
conditions were met and the loan-to-value ratio was 80%. Plaintiffs do not contend that the
conditions to remove the PMI were satisfied. Therefore, there is no evidence that Countrywide
made false representations regarding the PMI.
Plaintiffs cite a letter that Countrywide sent wherein Countrywide indicated that $117.41
of the $1,593.50 monthly mortgage payment was attributed to “Optional Insurance (monthly).”
The trial court, however, did not err in holding that PMI was mandatory under the loan
documents and that the 2009 letter did not create an issue of fact as to whether PMI was
mandatory. The plain language of the relevant contractual document provided that PMI was
mandatory because the loan-to-value ratio was 91.9%. The mortgage insurance disclosure was a
binding contract related to Cynthia Newmeyer’s securing the home loan. The plain language of
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that document provided that PMI was mandatory. “If the contractual language is unambiguous,
courts must interpret and enforce the contract as written, because an unambiguous contract
reflects the parties’ intent as a matter of law.” In re Smith Trust, 480 Mich. 19, 24; 745 NW2d
754 (2008). There was no misrepresentation with respect to the PMI.
Plaintiffs do not contend that they met the prerequisites to cancel the PMI, and plaintiffs
cannot otherwise rely on extrinsic evidence to contest the unambiguous contractual language.
See id. (explaining that extrinsic evidence is proper to consider in a contract dispute only when
the contractual terms are ambiguous). In short, because the plain language of the contract
provided that PMI was mandatory, there was no evidence to show that BOA’s predecessor made
a fraudulent misrepresentation with respect to PMI. Accordingly, the trial court did not err in
granting summary disposition as to Count I.
With respect to Count II, plaintiffs alleged that defendants engaged in fraud when
defendants’ representatives made misrepresentations regarding the loan modification process.
The trial court did not err when it ruled that this claim was barred by the statute of frauds. MCL
566.132(2) provides as follows:
(2) An action shall not be brought against a financial institution to enforce
any of the following promises or commitments of the financial institution unless
the promise or commitment is in writing and signed with an authorized signature
by the financial institution:
(a) A promise or commitment to lend money, grant or extend credit, or
make any other financial accommodation.
(b) A promise or commitment to renew, extend, modify, or permit a delay
in repayment or performance of a loan, extension of credit, or other financial
accommodation.
(c) A promise or commitment to waive a provision of a loan, extension of
credit, or other financial accommodation. [Emphasis added.]
In this case, the factual allegations underlying Count II of the complaint all concerned
alleged promises or commitments made by defendants—financial institutions—and plaintiffs did
not allege or submit evidence that any of the promises or commitments were in writing and
signed by an authorized representative. More specifically, the allegations concerned
representations that defendants purportedly made regarding the modification of a loan.
Accordingly, Count II was barred as a matter of law pursuant to MCL 566.132(2), and the trial
court did not err in granting summary disposition as to Count II.
With respect to Count III, plaintiffs alleged that defendants were negligent for engaging
in the conduct set forth in Count II and for engaging in other conduct related to plaintiffs’ request
for modification. Specifically, plaintiffs alleged that defendants confused their file with another
file, delayed modification decisions, rejected payments and provided the wrong address for
payments, and advised plaintiffs to delay their modification application. This claim, like Count
II, relied on factual allegations concerning alleged oral promises that defendants made to
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plaintiffs concerning the modification process, and therefore, it was barred by the statute of
frauds. See MCL 566.132(2).
Moreover, to the extent that plaintiffs alleged in Count III that defendants were negligent
in handling the loan documents or processing the modification request, we find that the claim
fails because any duty on the part of defendants arose from their contractual relationship with
plaintiffs. “[T]he threshold question is whether the defendant owed a duty to the plaintiff that is
separate and distinct from the defendant’s contractual obligations. If no independent duty exists,
no tort action based on a contract will lie.” Fultz v Union-Commerce Assocs, 470 Mich. 460,
467; 683 NW2d 587 (2004). Here, any duty arose exclusively from the contractual relationship.
Plaintiffs fail to identify the nature of any independent duty that existed that was separate and
distinct from the contractual relationship they had with plaintiffs. Accordingly, the negligence
claim failed as a matter of law, and the trial court did not err in granting summary disposition as
to Count III.
With respect to Count IV, plaintiffs alleged that defendants were estopped from
foreclosing on the mortgage because defendants engaged in certain conduct that precluded
foreclosure. Specifically, plaintiffs alleged that defendants informed them not to make
payments, rejected “catch-up” payments, provided the wrong address for payment, and created
unnecessary delays. Plaintiffs further contended that defendants had declared “all information
regarding Plaintiffs’ mortgage/promissory note confidential and refus[ed] to provide such
information to Plaintiffs.” In addition, plaintiffs alleged that defendants made misrepresentations
about loan modification and engaged in fraud in handling the mortgage and promissory note.
The trial court did not err in dismissing this claim.
“Equitable estoppel may arise where (1) a party, by representations, admissions, or
silence intentionally or negligently induces another party to believe facts, (2) the other party
justifiably relies and acts on that belief, and (3) the other party is prejudiced if the first party is
allowed to deny the existence of those facts.” Conagra, Inc v Farmers State Bank, 237 Mich
App 109, 141; 602 NW2d 390 (1999). Plaintiffs failed to create a genuine question of material
fact to support asserting equitable estoppel to avoid the foreclosure. In Count IV, like in Counts
II and III, plaintiffs alleged that defendants made oral representations regarding the loan
documents and modification of the loan. The claim was, therefore, barred by the statute of
frauds. See MCL 566.132(2). To the extent that plaintiffs alleged that defendants failed to
provide certain documents, we find that plaintiffs failed to present any evidence to demonstrate
how such failure induced plaintiffs’ belief or reliance such that defendants should be equitably
estopped from foreclosing on the loan. In short, the trial court did not err in granting summary
disposition as to Count IV.
In Count V, plaintiffs alleged “lack of authority over property.” Plaintiffs alleged that
they did not issue a mortgage “to MERS, never received notice of any assignment to MERS, and
have never previously heard of MERS.” Plaintiffs also alleged that defendants previously
claimed that Countrywide assigned the mortgage to defendants. Plaintiffs argued that defendants
did not have authority over the mortgage.
The trial court did not err in dismissing Count V. Initially, plaintiffs were not parties to
the assignment, and they lack standing to challenge the validity of the assignment. See Bowles v
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Oakman, 246 Mich. 674, 678; 225 N.W. 613 (1929). Moreover, under the plain terms of the
mortgage, MERS was identified as “the mortgagee.” MERS then assigned the mortgage to BAC
Home Loans Servicing, which merged with BOA. In sum, there was no evidence to support
plaintiffs’ claim that BOA did not have legal authority over the property, and the trial court did
not err in dismissing Count V.
With respect to Count VII,1 plaintiffs alleged that defendants violated MCL 445.252, a
section of the Michigan regulation of collection practices act (MRCPA), MCL 445.251 et seq.
MCL 445.252 provides in relevant part as follows:
A regulated person shall not commit 1 or more of the following acts:
(a) Communicating with a debtor in a misleading or deceptive manner,
such as using the stationery of an attorney or credit bureau unless the regulated
person is an attorney or is a credit bureau and it is disclosed that it is the
collection department of the credit bureau.
* * *
(e) Making an inaccurate, misleading, untrue, or deceptive statement or
claim in a communication to collect a debt or concealing or not revealing the
purpose of a communication when it is made in connection with collecting a debt.
(f) Misrepresenting in a communication with a debtor 1 or more of the
following:
* * *
(ii) The legal rights of the creditor or debtor.
* * *
(n) Using a harassing, oppressive, or abusive method to collect a debt,
including causing a telephone to ring or engaging a person in telephone
conversation repeatedly, continuously, or at unusual times or places which are
known to be inconvenient to the debtor. All communications shall be made from
8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications
at another time. All telephone communications made from 9 p.m. to 8 a.m. shall
be presumed to be made at an inconvenient time in the absence of facts to the
contrary.
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The trial court dismissed Count VI before plaintiffs filed a second amended complaint, but that
claim is not at issue in this appeal.
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In MCL 445.251(g), the MRCPA defines the term “regulated person” in relevant part as
follows:
(g) “Regulated person” means a person whose collection activities are
confined and are directly related to the operation of a business other than that of a
collection agency including any of the following:
(i) A regular employee who collects accounts for 1 employer if the
collection efforts are carried on in the name of the employer.
(ii) A state or federally chartered bank that collects its own claim.
(iii) A trust company that collects its own claim.
(iv) A state or federally chartered savings and loan association that collects
its own claim.
(v) A state or federally chartered credit union that collects its own claim.
MCL 445.257(2) provides a civil cause of action for individuals harmed by a violation of
the MRCPA, stating:
(1) A person who suffers injury, loss, or damage, or from whom money
was collected by the use of a method, act, or practice in violation of this act may
bring an action for damages or other equitable relief.
(2) In an action brought pursuant to subsection (1), if the court finds for
the petitioner, recovery shall be in the amount of actual damages or $50.00,
whichever is greater. If the court finds that the method, act, or practice was a
wilful violation, the court may assess a civil fine of not less than 3 times the
actual damages, or $150.00, whichever is greater, and shall award reasonable
attorney's fees and court costs incurred in connection with the action.
In their complaint, plaintiffs did not allege with any specificity the conduct alleged to
have constituted a violation of MCL 445.252. Rather, plaintiffs cited paragraphs from the
complaint and alleged that the conduct depicted in the paragraphs violated certain provisions of
MCL 445.252. For example, plaintiffs alleged that defendants violated MCL 445.252(a) by
communicating with plaintiffs in a misleading or deceptive manner, and plaintiffs cited 15
paragraphs from the complaint to support the alleged violation. Plaintiffs made similar
allegations that defendants violated MCL 445.252(e), (f)(ii), and (n).
The trial court dismissed Count VII, holding that plaintiffs relied on oral representations
to support their claim and that such representations were barred by the statute of frauds. The trial
court did not err in dismissing the claim.
We hold as a matter of law that defendants did not violate MCL 445.252, nor did any
claimed violation cause harm. Importantly, the conduct underlying Count VII did not concern
debt collection practices. Instead, the gravamen of the claim concerned the manner in which
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defendants responded to plaintiffs’ request to modify their loan. There is no evidence to
conclude that the manner in which defendants responded to the modification request caused
plaintiffs to default on the loan. Plaintiffs do not dispute that they defaulted on the modified
loan. In addition, plaintiffs do not dispute that in April 2015, defendants offered them a trial
period under a “Freddie Mac Standard Modification Plan.” Therefore, all the alleged conduct
related to requests for modification that occurred before April 2015 is immaterial. Plaintiffs
were afforded an opportunity to participate in a modification trial period. Plaintiffs, however,
did not accept the opportunity. Instead, they sent a letter requesting more information and a
change in the terms of the trial period. In short, the evidence viewed in a light most favorable to
plaintiffs is insufficient to create an issue of fact as to whether defendants’ conduct regarding the
modification caused plaintiffs to default on their loan.
Moreover, the gravamen of plaintiffs’ claim under MCL 445.252 concerned alleged oral
representations that defendants made during the loan modification process. To the extent that
plaintiffs alleged that defendants’ failure to provide a favorable modification despite oral
promises to the contrary, we again note that these claims were barred by the statute of frauds.
See MCL 566.132(2). In the instant case, plaintiffs did not allege that any of defendants’
representations were in writing and signed by defendants. Therefore, plaintiffs’ claims regarding
the alleged oral representations made by defendants were barred by the statute of frauds and
could not form the basis of a claim under MCL 445.252.
In addition, by simply citing to paragraphs in the complaint to support the position that
defendants violated MCL 445.252, plaintiffs failed to create a genuine issue of material fact in
that plaintiffs did not articulate what aspects of defendants’ conduct violated the statute and how
that conduct resulted in damages. In sum, the trial court did not err in granting summary
disposition in favor of defendants with respect to Count VII.
With respect to Count VIII, plaintiffs alleged “interference with performance.” Plaintiffs
asserted that defendants “knowingly” interfered with plaintiffs’ performance on a contract by
“refusing payments and providing the wrong address for payments.” The trial court construed
this claim as one of tortious interference with a contract and ruled that there was no evidence to
create a question of fact to support the claim.
“It is well settled that the gravamen of an action is determined by reading the complaint
as a whole, and by looking beyond mere procedural labels to determine the exact nature of the
claim.” Adams v Adams (On Reconsideration), 276 Mich. App. 704, 710-711; 742 NW2d 399
(2007). “The elements of tortious interference with a contract are (1) the existence of a contract,
(2) a breach of the contract, and (3) an unjustified instigation of the breach by the defendant.”
Health Call of Detroit v Atrium Home & Health Care Servs, Inc, 268 Mich. App. 83, 89-90; 706
NW2d 843 (2005).
Here, the clear gravamen of the claim was that defendants interfered with contractual
performance. Therefore, plaintiffs had the burden to allege facts to support the elements of a
prima facie claim of tortious interference with a contract. Plaintiffs’ claim, however, failed as a
matter of law. “To maintain a cause of action for tortious interference with a contract, a plaintiff
must establish a breach of contract caused by the defendant, and that the defendant was a ‘third
party’ to the contract or business relationship.” Dzierwa v Mich Oil Co, 152 Mich. App. 281, 287;
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393 NW2d 610 (1986) (citation omitted). In this case, defendants were not third parties to the
contract; therefore, Count VIII failed as a matter of law, and the trial court did not err in
dismissing the claim.
In a similar claim, Count IX, plaintiffs alleged anticipatory breach of contract. Plaintiffs
asserted that “[b]y interfering with Plaintiffs’ performance, Defendant is in anticipatory breach
of any contract between Defendant and either Plaintiff.” “Under the doctrine of anticipatory
breach, if a party to a contract, prior to the time of performance, unequivocally declares the
intent not to perform, the innocent party has the option to either sue immediately for the breach
of contract or wait until the time of performance.” Paul v Bogle, 193 Mich. App. 479, 493; 484
NW2d 728 (1992) (quotation marks omitted). “In determining whether an anticipatory breach
has occurred, it is the party’s intention manifested by acts and words that is controlling, and not
any secret intention that may be held.” Id.
Viewed in a light most favorable to plaintiffs, we conclude that the evidence did not
create a question of fact regarding a claim of anticipatory breach of contract. There was no
evidence to show that either defendant unequivocally manifested intent not to perform on the
contract. Rather, it is undisputed that plaintiffs defaulted on the modified loan. The allegations
in the complaint concerned alleged misrepresentations about modification. There were no facts
alleged that either BOA or Freddie Mac manifested an intent not to perform on the contract.
Therefore, the trial court did not err in dismissing Count IX.
Finally, with respect to Count X relative to Freddie Mac’s liability as principal, given that
there were no genuine issues of material fact with respect to plaintiffs’ nine other claims, we
agree that the trial court did not err in dismissing Count X.
Plaintiffs argue that summary disposition was premature because defendants failed to
properly respond to interrogatories. The trial court addressed plaintiffs’ argument and awarded
them $1,500 in sanctions, but ruled that further responses to the interrogatories would not impact
its ruling on the motion for summary disposition. Summary disposition is
generally premature if discovery is not complete. Caron v Cranbrook Ed Community, 298 Mich
App 629, 645; 828 NW2d 99 (2012). Summary disposition, however, may be proper before
discovery is complete where further discovery does not stand a fair chance of uncovering factual
support for the position of the party opposing the motion. Id. Mere speculation that additional
discovery might produce evidentiary support is not sufficient. Id. at 646. Plaintiffs fail to
articulate how different or additional responses to the interrogatories would have created factual
support for any of their claims. Therefore, summary disposition was properly granted.
We affirm. Having fully prevailed on appeal, defendants are awarded taxable costs under
MCR 7.219.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
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