Pittman v. Experian Info. Solutions, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0182p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HOWARD PITTMAN, ┐
Plaintiff-Appellant, │
│
│
v. > No. 17-1677
│
│
EXPERIAN INFORMATION SOLUTIONS, INC., et al., │
Defendants, │
│
SERVIS ONE, INC., dba BSI Financial Services; ISERVE │
SERVICING, INC., │
│
Defendants-Appellees.
│
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cv-13591—Victoria A. Roberts, District Judge.
Argued: February 2, 2018
Decided and Filed: August 23, 2018
Before: BOGGS, CLAY, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Edward A. Mahl, MICHIGAN CONSUMER CREDIT LAWYERS, Southfield,
Michigan, for Appellant. Christian K. Mullett, ORLANS PC, Troy, Michigan, for Appellee
Servis One. Mickey J. Lee, MAURICE WUTSCHER LLP, Indianapolis, Indiana, for Appellee
iServe Servicing. ON BRIEF: Edward A. Mahl, MICHIGAN CONSUMER CREDIT
LAWYERS, Southfield, Michigan, for Appellant. Christian K. Mullett, ORLANS PC, Troy,
Michigan, for Appellee Servis One. Mickey J. Lee, MAURICE WUTSCHER LLP,
Indianapolis, Indiana, for Appellee iServe Servicing.
No. 17-1677 Pittman v. Experian, et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Howard Pittman (“Pittman”) sued two mortgage
servicers, iServe Servicing, Inc. (“iServe”) and Servis One, Inc., d/b/a BSI Financial Services
(“BSI”), for negligent and willful violation of the Fair Credit Reporting Act (“FCRA”) pursuant
to 15 U.S.C. §§ 1681n and 1681o. He also sued BSI for breach of contract. Pittman appeals
from several decisions entered by the district court denying Pittman’s motion for leave to file a
second amended complaint, denying Pittman’s motion to compel depositions of iServe
representatives, granting iServe’s motion for summary judgment and dismissing it from the case,
and granting BSI’s motion for summary judgment and dismissing the case.
For the reasons set forth below, we AFFIRM in part and REVERSE in part the district
court’s judgment and REMAND for proceedings consistent with this opinion.
BACKGROUND
I. Factual History
On August 19, 2008, Pittman purchased a home located at 5930 Willow Road, West
Bloomfield, Michigan 48324 with a $262,138.00 loan from Citicorp Trust Bank. The loan is
evidenced by a note and is secured by a mortgage. The note requires that Pittman make monthly
payments of $1,980.42 beginning on September 25, 2008.
On July 27, 2010, Citicorp assigned the loan to Pacifica. From July 2010 until June
2012, iServe serviced the loan. In June 2012, BSI began servicing the loan.1
Pittman failed to make two mortgage payments in August and September 2011. Pittman
then submitted a loan modification application to iServe. In late 2011, iServe granted Pittman a
1We will refer to iServe and BSI collectively as “the Servicers.”
No. 17-1677 Pittman v. Experian, et al. Page 3
Trial Modification Plan (“TPP”)2 on his mortgage, pursuant to the Home Affordable Mortgage
Program (“HAMP”). Under the TPP, Pittman was to make “trial period payments in a timely
manner” for January, February, and March 2012 in the amount of $1,357.80. (R. 90-1, TPP,
PageID # 1739.) The TPP said “[a]fter all trial period payments are timely made and you have
submitted all the required documents, your mortgage will be permanently modified.” (Id.)
Pittman made the three trial payments. Even though Pittman fully performed, the TPP was never
made permanent in writing by iServe. However, Pittman continued to make the reduced monthly
payments.
On May 31, 2012, Pittman received notice that the servicing of the loan had been
assigned to BSI and that he was to send payments to BSI as of June 14, 2012.
On July 26, 2012, BSI sent Pittman a notice of default. Pittman sought the help of an
attorney, Gilbert Borman, to assist him in making inquiries about the default and the loan
modification to iServe and BSI. On January 17, 2013, Borman wrote to iServe that Pittman’s
“modification did not transfer over” from iServe to BSI and Borman was “informed by
[a member of BSI’s Loss Mitigation Department] that the reason the modification did not
transfer over is that [iServe] did not properly report the modification to the Treasury
Department.” (R. 88-14, 1/17/13 Fax, PageID # 1603.) On January 30, 2013, iServe’s Risk
Manager emailed BSI’s Loss Mitigation Department and said “[t]he borrower was on a trial
modification with iServe in December 2011 and made all payments on time, contractually
entitling him to a permanent mod [sic] in April 2012. iServe did not process the permanent
modification prior to the loan being transferred to BSI on June 14, 2012.” (R. 56, 1/30/13 Email,
PageID # 885.) On April 25, 2013, Borman received an email from iServe’s Senior Counsel
stating that “[a]ccording to iServe’s understanding from HAMP and BSI, Mr. Pittman’s loan
modification has been made permanent, so his concerns have been completely resolved.” (R. 88-
5, 4/25/13 Email, PageID # 1529.) During this time, BSI’s Loss Mitigation Department told
Pittman “to continue to make the trial payment amount.” (R. 88-25, 3/16/13 Email, PageID #
1655.)
2The document itself is called a “Trial Modification Plan.” However, the parties refer to the document as
the “TPP” and not “TMP.” TPP appears to stand for Trial Period Plan. We will use “TPP,” as do the parties.
No. 17-1677 Pittman v. Experian, et al. Page 4
On June 4, 2014, Pittman obtained a credit report, which showed that both iServe and
BSI had reported his mortgage payments as past due. On June 11, 2014, Pittman sent letters to
the three major credit reporting agencies (“CRAs”) disputing the information furnished by iServe
and BSI. On August 20, 2014, Pittman again sent dispute letters to the three major CRAs. The
complaints were referred to the Servicers for their investigation. The Servicers concluded that
the loan payments were untimely as reported because there was no loan modification agreement
and Pittman was not making the payments under the original contract.
Pittman also learned that BSI had not made property tax payments from his escrow
account as required by the mortgage agreement. The amounts were $3,935.97 for 2013 and
$2,355.50 for 2014.
II. Procedural History
On August 29, 2014, Pittman filed suit in the 48th District Court against Experian
Information Solutions, Inc., Trans Union, LLC, Equifax Information Services, LLC, and BSI.
He sued all Defendants for: (1) negligent violation of FCRA; and, (2) willful violation of FCRA.
On September 16, 2014, the suit was removed to federal court.
On November 11, 2014, Pittman filed an amended complaint. The amended complaint
added iServe as a defendant. Pittman again sued all Defendants for: (1) negligent violation of
the FCRA; and, (2) willful violation of FCRA. He also sued BSI for breach of contract.
Upon stipulation of the parties, the claims against Trans Union, Experian, and Equifax
were dismissed with prejudice and without fees or costs.
On January 9, 2015, Pittman filed a motion for leave to file a second amended complaint
in order to add Pacifica as a party and to add additional counts. On February 25, 2015, Pittman
filed an amended motion for leave to file a second amended complaint. On February 26, 2015,
Pittman withdrew this motion. On June 24, 2015, the district court entered an order striking the
amended motion for leave to file a second amended complaint because Pittman did not attach a
copy of the second amended complaint to the motion and the court was not sure which complaint
Pittman wanted to file. On June 29, 2015, Pittman filed a renewed motion for leave to file a
No. 17-1677 Pittman v. Experian, et al. Page 5
second amended complaint. On November 9, 2015, Pittman filed a notice of withdrawal of his
renewed motion.
On November 25, 2015, BSI filed a motion for judgment on the pleadings. On
November 30, 2015, iServe filed its answer to the amended complaint with affirmative defenses.
On December 1, 2015, Pittman sent a notice of deposition to iServe. On December 4, 2015,
Pittman filed a motion to compel depositions of iServe’s representatives. On December 11,
2015, iServe filed a motion for judgment on the pleadings. On January 18, 2016, Pittman filed a
combined motion to consolidate cases and for leave to file a second amended complaint.
On May 11, 2016, the district court conducted a hearing on the pending motions.3 The
district court ruled on the motions at the hearing and, on May 13, 2016, issued a written order
denying both BSI’s and iServe’s motions for judgment on the pleadings, denying Pittman’s
motion to amend the complaint, and denying Pittman’s motion to compel the depositions of
iServe’s representatives. The district court granted Pittman’s motion to consolidate cases, but
later “unconsolidated[d]” the cases. (R. 83, Order Unconsolidating Cases, PageID # 1418.)
On August 12, 2016, both Pittman and iServe filed motions for summary judgment.
Pittman sought summary judgment on all of his claims. iServe sought summary judgment on
Pittman’s claims against it.
On November 30, 2016, the district court denied Pittman’s motion for summary
judgment, granted iServe’s motion for summary judgment, and dismissed iServe from the case.
The district court found that the TPP was not a legally enforceable permanent modification
agreement and that Pittman was barred under Michigan law from arguing estoppel. The district
court also found that Pittman failed on the threshold question of his FCRA claim—whether there
was a reporting error. The district court concluded that “[b]ecause the [TPP] was neither
permanent nor enforceable, and because he was on notice that his credit score could be adversely
affected during the trial period, Pittman cannot show iServe or BSI made an error in reporting his
loan payments as overdue.” (R. 96, Order, PageID # 2380.) Consequently, the district court
3This included Pittman’s combined motion to consolidate cases and leave to file an amended complaint,
BSI’s motion for judgment on the pleadings, iServe’s motion for judgment on the pleadings, and Pittman’s motion
to compel depositions of iServe representatives.
No. 17-1677 Pittman v. Experian, et al. Page 6
denied Pittman’s motion for summary judgment and granted iServe’s motion for summary
judgment. Finally, the district court denied Pittman’s motion for summary judgment on the
breach of contract claim against BSI because a question of fact on a material issue remained—
whether Pittman was the first to “materially” breach the contract.
On January 10, 2017, BSI filed a motion for leave to file a late motion for summary
judgment and the motion for summary judgment itself. On January 11, 2017, BSI filed an
amended motion for leave to file a motion for summary judgment and the motion for summary
judgment itself. On January 31, 2017, the district court granted BSI’s motion for leave to file a
motion for summary judgment because of the findings associated with the November 30, 2016
order and because ruling on the motion “may prevent an unnecessary trial.” (R. 104, Order
Granting Leave, PageID # 2559–61.)
On May 19, 2017, the district court granted BSI’s motion for summary judgment and
dismissed the case. The district court noted that because Pittman could not show that the
Servicers made an error in reporting his loan payments as overdue, BSI was entitled to summary
judgment on Pittman’s FCRA claim. With regard to the breach of contract claim, the district
court found that Pittman breached the agreement by failing to make two monthly payments, and
because of that “substantial” breach, Pittman could not “maintain an action against BSI for
failure to perform.” (R. 107, Order Granting BSI’s MSJ, PageID # 2608.) Consequently, the
district court concluded that BSI was entitled to summary judgment on Pittman’s breach of
contract claim. As a result, the district court dismissed the case.
On June 9, 2017, Pittman timely filed his notice of appeal.
DISCUSSION
I. Fair Credit Reporting Act
Standard of Review
This Court reviews a district court’s grant of summary judgment de novo. Gillis v.
Miller, 845 F.3d 677, 683 (6th Cir. 2017). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
No. 17-1677 Pittman v. Experian, et al. Page 7
matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that no
genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The
moving party must demonstrate the “basis for its motion, and identify[] those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”
Id. at 323 (internal citations and quotation marks omitted). The nonmoving party “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986) (internal citations and quotation marks omitted). The reviewing court
must then determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251–52. A court should view the facts and draw all reasonable inferences in favor of the
non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Analysis
“Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote
efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47, 52 (2007). 15 U.S.C. § 1681s-2 outlines various responsibilities of “furnishers of
information to consumer reporting agencies.” This section was “designed to prevent ‘furnishers
of information’ from spreading inaccurate consumer-credit information.” Boggio v. USAA Fed.
Sav. Bank, 696 F.3d 611, 614 (6th Cir. 2012).
FCRA imposes a duty on furnishers of information to provide complete and accurate
information. 15 U.S.C. § 1681s-2(a). FCRA also imposes certain duties on furnishers of
information upon notice of a dispute. 15 U.S.C. § 1681s-2(b). After receiving notice of a
“dispute with regard to the completeness or accuracy of any information provided by a person to
a consumer reporting agency,” that person shall:
(A) conduct an investigation with respect to the disputed information;
(B) review all relevant information provided by the consumer reporting agency
pursuant to section 1681i(a)(2) of this title;
(C) report the results of the investigation to the consumer reporting agency;
No. 17-1677 Pittman v. Experian, et al. Page 8
(D) if the investigation finds that the information is incomplete or inaccurate,
report those results to all other consumer reporting agencies to which the person
furnished the information and that compile and maintain files on consumers on a
nationwide basis; and
(E) if an item of information disputed by a consumer is found to be inaccurate or
incomplete or cannot be verified after any reinvestigation under paragraph (1), for
purposes of reporting to a consumer reporting agency only, as appropriate, based
on the results of the reinvestigation promptly--
(i) modify that item of information;
(ii) delete that item of information; or
(iii) permanently block the reporting of that item of information.
15 U.S.C. § 1681s-2(b)(1).
FCRA “expressly creates a private right of action to enforce many of its terms.” Boggio,
696 F.3d at 615. Pursuant to § 1681s-2(c), however, consumers are precluded “from enforcing
the requirement that furnishers, under § 1681s-2(a), initially provide complete and accurate
consumer information to a CRA.” Id. However, “FCRA expressly creates a private right of
action against a furnisher who fails to satisfy one of five duties identified in § 1681s-2(b).” Id. at
618. A consumer is permitted to demonstrate that a furnisher negligently breached one of these
duties, under § 1681o, or willfully breached one of them, under § 1681n. Id.
Under § 1681s-2(b)(1), iServe and BSI were required, “after receiving notice of a
consumer dispute from a credit reporting agency, to conduct a reasonable investigation of their
records to determine whether the disputed information can be verified.” Johnson v. MBNA Am.
Bank, NA, 357 F.3d 426, 431 (4th Cir. 2004). There is no issue that Pittman notified the CRAs
of his dispute, or that Experian and Equifax notified the Servicers of the dispute.4 There is a
question about whether the Servicers failed to reasonably investigate or rectify the disputed
charge.
The district court never reached this question, however, because it reached only the
“threshold question of whether there were reporting errors by iServe and BSI.” (R. 96, Opinion,
PageID # 2380.) The district court found that “an error is an essential part of a[] FCRA claim.”
4We note that iServe disputes that it received notice from Trans Union.
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(Id. (citing Spence v. TRW, Inc., 92 F.3d 380, 382 (6th Cir. 1996).) In Spence, this Court found
that “[a] showing of inaccuracy is an essential element of a claim under the Fair Credit Reporting
Act.” 92 F.3d at 382 (citations omitted). We note that Spence dealt with a claim under
§ 1681e(b),5 id. at 381, but that several courts have required a showing of inaccuracy to succeed
on a claim under § 1681s-2(b) as well. See Shaw v. Equifax Info. Sols., Inc., 204 F. Supp. 3d
956, 959 (E.D. Mich. 2016) (“Inaccuracy is an essential element of a claim for negligent or
willful violation of the FCRA under section 1681s-2(b).” (citing Spence, 92 F.3d at 382)); Bailey
v. Equifax Info. Servs., LLC, No. 13-10377, 2013 WL 3305710, at *9 (E.D. Mich. July 1, 2013)
(“[T]he Court grants FIA’s motion [to dismiss] [because] Plaintiff has failed to make factual
allegations that support her claims that FIA reported inaccurate or misleading information or had
unreasonable procedures.”); Nykoriak v. GMAC LLC, No. 09-12490, 2010 WL 1923796, at *3
(E.D. Mich. May 12, 2010) (denying the plaintiff’s motion for summary judgment because there
was a genuine issue of material fact about whether the furnisher reported accurate information);
see also Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 37–38 (1st Cir. 2010) (“The FCRA is
intended to protect consumers against the compilation and dissemination of inaccurate credit
information.” (citation omitted)); Wadley v. Ford Motor Credit Co., 397 F. Supp. 2d 781, 784
(E.D. Va. 2005) (“[T]he FCRA requires a showing that the entity reporting the debt furnished
inaccurate information.”); Haynes v. Navy Fed. Credit Union, 52 F. Supp. 3d 13, 19–20 (D.D.C.
2014) (the furnisher’s report to credit agencies that the plaintiff was past due on his mortgage
loan was accurate and, in the absence of other support, foreclosed plaintiff’s FCRA claim).
We agree that a threshold showing of inaccuracy or incompleteness is necessary in order
to succeed on a claim under § 1681s-2(b). After all, as this Court has described, “Section 1681s-
2 works in two phases. Initially, furnishers have a duty to provide the CRAs with accurate
information about their consumers. Later, a furnisher may be asked by a CRA to respond to
disputes about the consumer information provided.” Boggio, 696 F.3d at 614 (internal citation
omitted). And the requirement meets the goals of FCRA by preventing “‘furnishers of
information’ from spreading inaccurate consumer-credit information.” Id. (emphasis added).
5Under § 1681e(b), a credit reporting agency is required to follow “reasonable procedures to assure
maximum possible accuracy” of the information contained in a consumer’s credit report, and a requirement for
stating a claim is that the report contained inaccurate or incomplete information.
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To meet this threshold showing, a plaintiff can show that the information provided is false or that
it contains a material omission or creates a materially misleading impression. Id. at 617–18.
Turning to the threshold question in this case, the district court concluded that Pittman
could not show that iServe and BSI “made an error in reporting his loan payments as overdue.”
(R. 96, Opinion, PageID # 2380; R. 107, Opinion, PageID # 2603–05.) This was because there
was no enforceable permanent loan modification and because Pittman missed two payments,
made smaller payments after the TPP, and never brought his account current.
We disagree with the district court that Pittman cannot make his initial showing of
inaccurate or incomplete reporting. We think his FCRA claim can proceed for at least two
reasons: (1) while there was no written permanent modification document, there may have been
an enforceable agreement to modify his loan6; and, (2) the Servicers did not report the existence
of the TPP.7 We address these two reasons in turn.
A. Agreement to Permanently Modify the Loan
First, we think Pittman can show inaccurate reporting because the TPP was an offer for
permanent modification, which Pittman accepted by satisfying the conditions contained in the
TPP. Under Michigan law, “[a] valid contract requires five elements: (1) parties competent to
contract, (2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and
(5) mutuality of obligation.” Bank of Am., NA v. First Am. Title Ins. Co., 878 N.W.2d 816, 830
(Mich. 2016) (citation omitted). “Before a contract can be completed, there must be an offer and
acceptance.” Pakideh v. Franklin Commercial Mortg. Grp., Inc., 540 N.W.2d 777, 780 (Mich.
Ct. App. 1995).
6iServe argues that Pittman waived this argument by raising it for the first time on appeal. (The correct
term for iServe’s argument is “forfeiture,” not “waiver.”) We disagree. Pittman argues throughout his pleadings
relating to the motions for summary judgment that he had been granted a TPP, that he fully performed the TPP, and
that because of his compliance with the TPP, his loan modification should have been made permanent by iServe.
Consequently, we think Pittman sufficiently raised this argument to the district court.
7iServe argues that Pittman [forfeited] the argument that Servicers should have reported the TPP to the
credit reporting agencies by raising it for the first time on appeal. Again, we disagree. Pittman’s entire argument is
that the Servicers misrepresented the state of his debt because of the TPP. Part of this argument is that the Servicers
did not acknowledge the existence of or the consequences of the TPP to the CRAs and incorrectly reported “the
status of the account.” (R. 88, Pittman MSJ, PageID # 1448–56.) Consequently, we think Pittman sufficiently
raised this argument to the district court.
No. 17-1677 Pittman v. Experian, et al. Page 11
The TPP said that to accept the trial period plan under HAMP, Pittman needed to make
three “trial period payments in a timely manner.” (R. 92-4, TPP, PageID # 2184.) It provided
that “[t]his is the first step toward qualifying for more affordable mortgage payments.” (Id.) It
said, “[a]fter all trial period payments are timely made and you have submitted all the required
documents, your mortgage will be permanently modified. (Your existing loan and loan
requirements in effect and unchanged during the trial period.)” (Id.) It was signed “Sincerely,
Loss Mitigation Department, iServe Servicing Inc.” (Id.)
Attached to the TPP was a document entitled “Frequently Asked Questions.” (Id. at
# 2185.) It included statements like “If your loan is modified, we will waive all unpaid late
charges,” “Your credit score may be adversely affected by accepting a trial period plan,” and
“The trial period is temporary, and your existing loan and loan requirements remain in effect and
unchanged during the trial period.” (Id.) The FAQs contained the question: “When will I know
if my loan can be modified permanently and how will the modified loan balance be determined?”
(Id.) It answered: “Once you make all of your trial period payments on time, we will send you a
modification agreement detailing the terms of the modified loan.” (Id.) The TPP also included
“Additional Trial Period Plan Information and Legal Notices.” (Id. at # 2187.) It said: “The
servicer’s acceptance and posting of your new payment during the trial period will not be
deemed a waiver of the acceleration of your loan (or foreclosure actions) and related activities,
and shall not constitute a cure of your default under your loan unless such payments are
sufficient to completely cure your entire default under your loan.” (Id.) Finally, it said: “You
agree that all terms and provisions of your current mortgage note and mortgage security
instrument remain in full force and effect and you will comply with those terms; and that nothing
in the trial period plan shall be understood or construed to be a satisfaction or release in whole or
in part of the obligations contained in the loan documents.” (Id.)
Under the terms of the TPP, the original loan remained in effect. The TPP set forth the
terms of the trial period, and said that a final agreement would be set forth in a separate
modification agreement to be sent to Pittman after timely making the payments and submitting
all requested documentation. The TPP did not itself permanently modify the terms of the loan
No. 17-1677 Pittman v. Experian, et al. Page 12
and was not itself a permanent loan modification agreement. No permanent loan modification
agreement was ever reduced to writing between Pittman and the Servicers.
However, courts have considered whether TPPs are enforceable agreements to modify a
borrower’s loan. For example, the Seventh Circuit considered whether the plaintiff “stated
claims under Illinois law against her home mortgage servicer for refusing to modify her loan
pursuant to the federal Home Affordable Mortgage Program (HAMP).” Wigod v. Wells Fargo
Bank, N.A., 673 F.3d 547, 554 (7th Cir. 2012). In Wigod, the plaintiff was issued a trial loan
modification “under which [the servicer] agreed to permanently modify the loan if she qualified
under HAMP guidelines.” Id. Wells Fargo argued that the “TPP was not an enforceable offer to
permanently modify [the plaintiff’s] mortgage because it was conditioned on Wells Fargo’s
further review of her financial information to ensure she qualified under HAMP.” Id. at 561.
The Court disagreed, and said:
[T]he TPP spelled out two conditions precedent to Wells Fargo’s obligation to
offer a permanent modification: [the plaintiff] had to comply with the
requirements of the trial plan, and her financial information had to remain true
and accurate. But these were conditions to be satisfied by the promisee
([plaintiff]) rather than conditions requiring further manifestation of assent by the
promisor (Wells Fargo). These conditions were therefore consistent with treating
the TPP as an offer for permanent modification.
Id. at 562. The court also found sufficient consideration and found the terms sufficiently definite
and certain. Id. at 563–65. “Before these conditions were met, the loan documents remained
unmodified and in force, but under . . . the TPP, Wells Fargo still had an obligation to offer [the
plaintiff] a permanent modification once she satisfied all her obligations under the agreement.”
Id. at 563; see also Oskoui v. J.P. Morgan Chase Bank, N.A., 851 F.3d 851, 859 (9th Cir. 2017)
(“Once [the plaintiff] made her three payments, Chase was obligated by the explicit language of
its offer [in the TPP] to send her an Agreement for her signature ‘which will modify the loan as
necessary to reflect this new payment amount.’ . . . Chase must abide by its own language.”);
George v. Urban Settlement Servs., 833 F.3d 1242, 1260 (10th Cir. 2016) (“[W]e conclude that
the language in BOA’s TPP documents clearly and unambiguously promises to provide
permanent HAMP loan modifications to borrowers who comply with the terms of their TPPs.”);
Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 234 (1st Cir. 2013) (finding “[t]he TPP’s plain
No. 17-1677 Pittman v. Experian, et al. Page 13
terms therefore required Wells Fargo to offer her a permanent modification,” where the TPP
provided that if plaintiff made timely payments, provided any necessary information, and
truthfully represented her financial situation, the lender “will” send her a “Modification
Agreement for her signature which will modify her Loan Documents”); Corvello v. Wells Fargo
Bank, NA, 728 F.3d 878, 883 (9th Cir. 2013) (finding that “the bank was contractually obligated
under the terms of the TPP to offer a permanent modification to borrowers who complied with
the TPP by submitting accurate documentation and making trial payments”). We find the
reasoning of the First, Seventh, Ninth, and Tenth Circuits persuasive.
Courts within this circuit have also considered this question but have come to varying
conclusions. See Williams v. Saxon Mortg. Servs., Inc., No. 13-10817, 2014 WL 765055, at *2
(E.D. Mich. Feb. 26, 2014) (finding that the TPP obligated the defendant to modify the plaintiffs’
loan because the TPP said it would “modify Plaintiffs’ loan if Plaintiffs complied with the terms
of the trial period and if all of Plaintiff’s representations about their financial situation continued
to be true at the end of the trial period”); Bolone v. Wells Fargo Home Mortg., Inc., 858 F. Supp.
2d 825, 833–34 (E.D. Mich. 2012) (finding that “Wells Fargo’s obligation to provide Plaintiff a
permanent loan modification is contingent on whether Plaintiff provided [the requested proof of
income] documents” and that there was a genuine dispute of fact as to whether plaintiff
submitted those documents). But see Goss v. ABN AMRO Mortg. Grp., 549 F. App’x 466, 471
(6th Cir. 2013) (finding the “TPP did not furnish [plaintiff] with a promise that CMI would
modify his loan” because “he acknowledged that the TPP did not constitute a promise that his
mortgage and note would be modified” and the TPP “was only an application for an offer to
modify the loan agreement, provided certain conditions were met”); Polk v. Countrywide Fin.
Corp., No. 12-10648, 2012 WL 2952389, at *3–4 (E.D. Mich. July 19, 2012); Fed. Home Loan
Mortg. Corp. v. Hassell, No. 11-14564, 2013 WL 823241, at *6 (E.D. Mich. Mar. 6, 2013)
(finding that the TPP did not promise the loan would be modified because “the language of the
Trial Plan expressly provides that the Trial Plan is not a loan modification and Plaintiff’s loan
documents would not be modified ‘unless and until’ Plaintiff met all the conditions for
modification, including providing Wells Fargo all requested documentation. Moreover, when
Plaintiff signed the Trial Plan, she acknowledged that it did not promise that her mortgage and
No. 17-1677 Pittman v. Experian, et al. Page 14
note would be modified.”); Heikkinen v. Bank of Am., N.A., No. 11-12532, 2012 WL 628608, at
*6 (E.D. Mich. Feb. 27, 2012).
In this case, we find that the TPP contained an offer to permanently modify Pittman’s
mortgage if Pittman made timely payments and provided required documentation. The TPP said
“[t]o qualify for a permanent modification, you must make the following trial period payments in
a timely manner.” (R. 92-4, TPP, PageID # 2184.) It said, “[a]fter all trial period payments are
timely made and you have submitted all the required documents, your mortgage will be
permanently modified.” (Id. (emphasis added).) The FAQs also provided, “[o]nce you make all
of your trial period payments on time, we will send you a modification agreement detailing the
terms of the modified loan.” (Id. at # 2185 (emphasis added).) This is all mandatory language.
See Young, 717 F.3d at 235. We think the TPP contained a clear and unambiguous promise by
iServe to offer Pittman a permanent modification, if Pittman timely made his payments and sent
requested documentation.
As explained in Wigod, it is not a problem that there were conditions precedent to the
Servicers’ obligation to offer the permanent modification because they were conditions to be
satisfied by Pittman and not “conditions requiring further manifestation of assent” by iServe.
673 F.3d at 561–62 (citing 1 Richard A. Lord, Williston on Contracts § 4:27 (4th ed. 2011) (“[A]
condition of subsequent approval by the promisor in the promisor’s sole discretion gives rise to
no obligation. . . . However, the mere fact that an offer or agreement is subject to events not
within the promisor’s control . . . will not render the agreement illusory.”)).
After iServe made this offer to provide a permanent modification conditioned on
Pittman’s timely payment, Pittman accepted the offer by performing in accordance with its
terms. This was a unilateral contract. Polaris Const., Inc. v. Delicata, No. 322094, 2015 WL
7283213, at *7 (Mich. Ct. App. Nov. 17, 2015) (describing a unilateral contract as one in which
“the promisor makes an offer or promise that the promisee accepts by performing the act upon
which the promise is based”). Pittman timely made those three monthly payments as required by
the TPP. There is no allegation that he failed to send the requested documentation. Pittman,
then, accepted iServe’s offer in strict conformity with that offer. Pakideh, 540 N.W.2d at 780.
No. 17-1677 Pittman v. Experian, et al. Page 15
We also find that the agreement does not fail as an agreement to agree. “A contract to
make a subsequent contract is not per se unenforceable; in fact, it may be just as valid as any
other contract.” Opdyke Inv. Co. v. Norris Grain Co., 320 N.W.2d 836, 838 (Mich. 1982) (citing
1 Corbin, Contracts, § 29, p. 84). However, “[t]o be enforceable, a contract to enter into a future
contract must specify all its material and essential terms and leave none to be agreed upon as the
result of future negotiations.” Heritage Broad. Co. v. Wilson Commc’ns, Inc., 428 N.W.2d 784,
787 (Mich. Ct. App. 1988). “[T]he lack of non-essential terms does not automatically invalidate
the agreement.” Trapp v. Vollmer, No. 297116, 2011 WL 2423884, at *1 (Mich. Ct. App. June
16, 2011). “[A]n agreement may be enforced as a contract even though incomplete or indefinite
in the expression of some terms, if it is established that the parties intended to be bound by the
agreement, particularly where one or another of the parties has rendered part or full
performance.” J.W. Knapp Co. v. Sinas, 172 N.W.2d 867, 869 (Mich. Ct. App. 1969). The open
terms must be capable of being determined “independent of a party’s mere ‘wish, will, and
desire’ . . . , either by virtue of the agreement itself or by commercial practice or other usage or
custom.” Wigod, 673 F.3d at 565 (quoting 1 Arthur Linton Corbin, Corbin on Contracts § 95, at
402 (1960 ed.)). “This may be the case, even though the determination is left to one of the
contracting parties, if he is required to make it ‘in good faith’ in accordance with some existing
standard or with facts capable of objective proof.” Id. (quoting Corbin, at 402).
In this case, the TPP provided that the trial period payment “is approximately 31% of
[Pittman’s] total gross monthly income, which [iServe] determined based upon the income
documentation [Pittman] provided.” (R. 90-1, TPP, PageID # 1740.) As a result of the 31%
benchmark, iServe came up with the trial payment figure of $1,357.80. The TPP provided that
the “new payment also will be based on 31% of your gross income.” (Id. at # 1740.) It said that
if Pittman’s existing payment included mortgage insurance premiums, that amount would be
added to the payment. The TPP provided that “[a]ny difference between the amount of the trial
period payments and your regular mortgage payments will be added to the balance of your loan
along with any other past due amounts as permitted by your loan documents.” (Id.) It continued,
“[w]hile this will increase the total amount that you owe, it should not significantly change the
amount of your modified mortgage payment as that is determined based on your total monthly
gross income, not your loan balance.” (Id.) The TPP also included details about the interest rate
No. 17-1677 Pittman v. Experian, et al. Page 16
and monthly principal and interest payment after permanent modification, and that these would
be fixed for the life of the mortgage.
While the TPP did not contain the exact figure that would be contained in a permanent
modification agreement, it does not fail for indefiniteness. The TPP provided enough
information and guidance for how iServe would calculate the figure and provided a temporary
figure that was based on the same formula. The ultimate figure was not left to iServe’s
unfettered discretion. And there were no essential terms left to be negotiated in the future by the
parties. The court in Wigod faced a similar question because the “trial period terms were an
‘estimate’ of the terms of the permanent modification and [] Wells Fargo had some limited
discretion to modify permanent terms based on its determination of the ‘final amounts of unpaid
interest and other delinquent amounts.’” 673 F.3d at 564. However, it found that the TPP was
not a “mere ‘agreement to agree’” because the HAMP guidelines provided the ‘“existing
standard’ by which the ultimate terms of Wigod’s permanent modification were to be set” and
that “Wells Fargo was obligated to use the NPV test and the waterfall method to try to bring [the
plaintiff’s] monthly payments down to 31 percent of her gross income.” Id. at 564–65. Because
Pittman entered the TPP pursuant to HAMP, this argument applies here as well. We think the
terms of the TPP are clear and definite enough to constitute an enforceable contract.
In sum, we find that the TPP provided that iServe was required to send Pittman a
modification agreement offering to modify his loan once he met the conditions provided in the
TPP. Because Pittman followed the requirements of the TPP, iServe’s obligation kicked in, and
it “could not unilaterally and without justification refuse to send the offer.” Corvello, 728 F.3d
at 883–84. iServe could not avoid its obligations to Pittman “merely by choosing not to send” a
modified agreement when Pittman made the required payments and otherwise complied with the
TPP’s requirements of him. Id. at 883.
Although we find there was an agreement to modify Pittman’s loan, we next consider
whether the agreement satisfies the statute of frauds. “Under Michigan’s statute of frauds, a
financial institution’s promise regarding financial accommodation, like a loan modification, is
void unless it is (1) in writing and (2) signed with an authorized signature by the party to be
No. 17-1677 Pittman v. Experian, et al. Page 17
charged with the promise.” Trombley v. Seterus Inc., 614 F. App’x 829, 832 (6th Cir. 2015)
(citing MICH. COMP. LAWS § 566.132(2)(c)). Michigan law provides:
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.
MICH. COMP. LAWS § 566.132(2).
The agreement to modify Pitman’s loan was contained in a writing⸺the TPP. The
question is whether the TPP containing the offer to modify was “signed with an authorized
signature by the financial institution.” “State and federal courts . . . have consistently held that
an action to enforce a mortgage modification lacking an authorized signature [is] barred under
the statute of frauds.” Trombley, 614 F. App’x at 833–34 (citing Huntington Nat’l Bank v.
Daniel J. Aronoff Living Tr., 853 N.W.2d 481, 489–90 (Mich. Ct. App. 2014)).
Whether a contract is “signed” depends on whether the party intended to authenticate the
writing. See Jim-Bob, Inc. v. Mehling, 443 N.W.2d 451, 458 (Mich. Ct. App. 1989). And
whether a person intended to authenticate a writing is a question of fact. Id. (“Whether the party
possessed the intent to authenticate is a question of fact.”); Clark v. Coats & Suits Unlimited,
352 N.W.2d 349, 354 (Mich. Ct. App. 1984). “[A]ny symbol executed or adopted by a party
with the present intent to authenticate a writing may serve as a signature.” Jim-Bob, Inc.,
443 N.W.2d at 458. In this case, at the end of the TPP is a typewritten line that reads:
“Sincerely, Loss Mitigation Department iServe Servicing Inc.” The TPP gives no indication that
iServe intended an additional signature by one of its representatives. The TPP was sent to
Pittman on iServe’s behalf and by the department that was in a position to offer loss mitigation
No. 17-1677 Pittman v. Experian, et al. Page 18
alternatives, like the one at issue in this case. We think these facts are sufficient to raise a
genuine issue for trial as to whether the typewritten line was intended to authenticate the TPP.
We note that courts in this circuit have ruled inconsistently on whether the phrase
“Sincerely, [Servicer Name]” is sufficient to satisfy the “authorized signature” requirement of
the statute of frauds. The federal courts within this circuit have been split on this issue.8 And
although the Michigan Supreme Court has not yet weighed in, two Michigan Courts of Appeals
have held that the typefaced name of a financial institution does not satisfy the “authorized
signature” requirement of the statute of frauds. See Rodgers v. JPMorgan Chase Bank NA,
890 N.W.2d 381, 385 (Mich. Ct. App. 2016) (holding that a TPP that included “Sincerely,
Ocwen Loan Servicing, LLC” was not “signed with an authorized signature”); Terry v. Fed.
Nat’l Mortg. Ass’n, No. 321141, 2015 WL 4546570, at *3 (Mich. Ct. App. July 28, 2015)
(holding that a TPP with a signature block labeled “JP Morgan Chase Bank, N.A.” was “not
signed by one of Chase’s authorized agents”).
Nonetheless, it is our task to try to make sense of the case law and to “apply state law in
accordance with the controlling decisions of the highest court of the state,” Meridian Mut. Ins.
Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999) (citing Erie R.R. Co. v. Tompkins, 304 U.S.
64 (1938)), which is the Michigan Supreme Court, Dinsmore Instrument Co. v. Bombardier, Inc.,
199 F.3d 318, 320 (6th Cir. 1999). Where the Michigan Supreme Court has not addressed the
issue, we “must attempt to ascertain how that court would rule if it were faced with the issue.”
Meridian Mut. Ins. Co., 197 F.3d at 1181. “The Court may use the decisional law of the state’s
lower courts, other federal courts construing state law, restatements of law, law review
commentaries, and other jurisdictions on the ‘majority’ rule in making this determination.” Id.
(citing Grantham & Mann v. American Safety Prods., 831 F.2d 596, 608 (6th Cir. 1987)).
However, the Court “should not disregard the decisions of intermediate appellate state courts
8See Trombley, 614 F. App’x at 832 n.2 (“We presume that the phrase ‘Sincerely, IBM Lender Business
Process Services, Inc.’ was intended as a ‘signature’ of the cover letter by Seterus.”); Polk v. Countrywide Fin.
Corp., No. 12-10648, 2012 WL 2952389, at *3 (E.D. Mich. July 19, 2012) (“The closing of the trial modification
letter reads: ‘Loan Modification Team, Bank of America Home Loan Servicing, LP.’ This could arguably satisfy the
statutory requirement of ‘an authorized signature by the financial institution.’”). But see Super v. Seterus, Inc., No.
13-CV-11626, 2014 WL 902827, at *3 (E.D. Mich. Mar. 7, 2014); Badger v. Fed. Nat. Mortg. Ass’n, No. 12-13416,
2013 WL 4805512, at *6 (E.D. Mich. Sept. 9, 2013); Rummell v. Vantium Capital, Inc., No. 12-10952, 2012 WL
2564846, at *6 (E.D. Mich. July 2, 2012).
No. 17-1677 Pittman v. Experian, et al. Page 19
unless it is convinced by other persuasive data that the highest court of the state would decide
otherwise.” Id. (citing Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967)).
The cases from the Michigan Court of Appeals conclude that a typed entity-servicer’s
name is insufficient to satisfy the statute of frauds, suggesting that the court of appeals believes
the documents in question must contain the personal signature of an individual authorized agent
of the financial institution. However, we are convinced that the Michigan Supreme Court would
conclude that “signed with an authorized signature by the financial institution” does not mean
signed with the personal signature of an individual authorized agent. And to the extent that the
Michigan Court of Appeals has made a personal signature a requirement, we think the Michigan
Court of Appeals has “graft[ed] an unjustifiable requirement onto the Michigan statute,” Etts v.
Deutsche Bank Nat’l Tr. Co., 126 F. Supp. 3d 889, 906 (E.D. Mich. 2015), with which the
Michigan Supreme Court would not agree.
First, to adopt this requirement would “torture [the statute’s] language.” Id. Section
566.132(2) requires that the writing be “signed with an authorized signature by the financial
institution.” Nowhere in the statute does this suggest that an individual must sign, or that an
individual must sign with a handwritten signature. PIC Maint., Inc. v. Dep’t of Treasury, 809
N.W.2d 669, 674 (Mich. Ct. App. 2011) (“[W]e will not read words into the plain language of
the statute.”); People v. Carey, 170 N.W.2d 145, 147 (Mich. 1969) (“The Court can only give
full effect to the plain meaning of the term as used in the statute and cannot read into the law a
requirement that the law-making body has seen fit to omit.”); In re Hurd-Marvin Drain, 50
N.W.2d 143, 146 (Mich. 1951) (“We may not read into the law a requirement that the law
making body has seen fit to omit.”). Instead, the statute requires only that there be a signature by
someone who has the authority to sign for the financial institution.
Additionally, “insisting on a personal signature would depart markedly from the long
history of the statute of frauds under which a ‘signature’ could include any notation signifying
adoption or assent to being bound.” Etts, 126 F. Supp. 3d at 907 (citing 4 Corbin, Contracts
§ 23.4, pp. 789–798; 72 Am. Jur. 2d Statute of Frauds § 257; Restatement (Second) of Contracts
§ 134 (1979); MICH. COMP. LAWS § 440.1201(2)(kk)). Traditionally, “any symbol executed or
adopted by a party with the present intent to authenticate a writing may serve as a signature.”
No. 17-1677 Pittman v. Experian, et al. Page 20
Jim-Bob, Inc., 443 N.W.2d at 458; see also Clark, 352 N.W.2d 349 at 354 (“[A] typewritten
name [like ‘From Ted Goldsmith’] may satisfy the signature requirement of the statute of frauds
as long as the party typing his or her name intends to authenticate same.” (citing 2 Corbin,
Contracts, § 522, pp. 768–769)). “While the statute of frauds for financial institutions was meant
to broaden the kinds of promises that had to be in writing, nothing in the wording of the statute
suggests that the standards for determining whether there was a sufficient signature had been
made more stringent.” Etts, 126 F. Supp. 3d at 907; see also Huntington Nat’l Bank,
853 N.W.2d at 491 (“By referring to a promise or commitment that is itself in writing and
signed, the Legislature plainly intended to limit enforcement to a promise or commitment that
was actually made.”). For example, the ordinary statute of frauds requires that agreements be “in
writing and signed with an authorized signature by the party to be charged with the agreement,
contract or promise,” MICH. COMP. LAWS § 566.132(1), whereas the statute of frauds for
financial institutions requires that agreements be “in writing and signed with an authorized
signature by the financial institution,” Id. § 566.132(2). We see no reason to treat these two
signature requirements differently.
Further, we think that adopting a more stringent standard for signatures of financial
institutions would produce unjust results. “Consumers and seasoned merchants alike are used to
being tendered documents containing promises—such as form contracts, warranties, quotes and
invoices—that close with only a printed company name, rather than the personal handwritten
signature of an individual.” Etts, 126 F. Supp. 3d at 908. Requiring an individual or handwritten
signature would “mean that lenders could make detailed promises to customers and affix the
lender’s name, and deceive even the most sophisticated customer into believing that an
enforceable promise had been made and could be relied upon.” Id.
We do not believe that the Michigan legislature meant to allow a lender to escape liability
for its promises by “having an authorized representative affix the typewritten name of the
servicer-institution—rather than the handwritten name of the representative himself or herself—
below the word ‘Sincerely.’” Id. “This recipe for ensnaring the unwary would convert the
statute of frauds into a statute for frauds, and undermine its fundamental purpose of ‘preventing
fraud or an opportunity for fraud.’” Id. (quoting Kent v. Bell, 132 N.W.2d 601, 605 (Mich.
No. 17-1677 Pittman v. Experian, et al. Page 21
1965)); see also FEI Co. v. Republic Bank, S.E., No. 268700, 2006 WL 2313612, at *2 (Mich.
Ct. App. Aug. 10, 2006) (“The statute of frauds exists for the purpose of preventing fraud or the
opportunity for fraud, and not as an instrumentality to be used in the aid of fraud or prevention of
justice.” (citation omitted)).
Finally, we increasingly see important documents transmitted without a live or
handwritten signature. And the law has begun to recognize this reality. See MICH. COMP. LAWS
§§ 450.831–49 (authorizing and providing the terms and conditions under which information and
signatures can be transmitted, received, and stored by electronic means); 15 U.S.C. § 7001(a)(1)
(“[A] signature, contract, or other record relating to such transaction may not be denied legal
effect, validity, or enforceability solely because it is in electronic form[.]”).
In all, we think that a typewritten name of a financial institution can satisfy the signature
requirement of the statute of frauds so long as the party typing the institution’s name intends to
authenticate the document and is authorized to do so. Because there is an issue of fact as to
whether iServe intended to authenticate the TPP with the authorized signature of a person
authorized to sign the document, we remand this question to the district court. If Pittman can
show that there was indeed an enforceable agreement to modify his loan and that the Servicers
were supposed to send him a permanent loan modification but instead reported him to the CRAs
as being behind on his loan, then Pittman could make the threshold showing of inaccuracy
required for a FCRA claim.
B. Failure to Report the TPP
Second, we think Pittman can show incomplete reporting on the part of the Servicers
because Pittman had been granted a TPP and the Servicers did not report the existence of the
TPP.
The HAMP program issues a “Handbook for Servicers of Non-GSE Mortgages.”
MAKING HOME AFFORDABLE PROGRAM, HANDBOOK FOR SERVICERS OF NON-GSE MORTGAGES,
Version 3.1 (2011).9 Under § 12.2 “Credit Bureau Reporting,” the handbook says “[s]ervicers
9This version can be found at:
No. 17-1677 Pittman v. Experian, et al. Page 22
should report a ‘full file’ status report to the credit reporting agencies for each loan under HAMP
in accordance with the Fair Credit Reporting Act.” Id. at 97. “Full file” means that the “servicer
must describe the exact status of each mortgage it is servicing as of the last business day of each
month.” Id. The handbook contains a section on “Trial Period Reporting,” under § 12.2.1. Id.
Within that section, the handbook provides that:
If the borrower was delinquent (at least 30 days past the due date) prior to the trial
period and the reduced payments do not bring the account current, servicers must
report the Account Status Code that reflects the appropriate level of delinquency
following the usual and customary reporting standards. The servicer reports the
modification when it is completed as well. The servicer should also report
Special Comment Code ‘AC’ (Paying under a partial or modified payment
agreement).
Id. If the borrower is current with payments before the trial period, the handbook provides that
the servicer “must report the borrower as current . . . during the trial period and report Special
Comment Code ‘AC.’” Id.
The credit reporting data does not reflect that the Servicers reported the existence of the
TPP, which would be reflected by a special comment code under which Pittman was paying
pursuant to a partial or modified payment agreement.
On this point, the Servicers rely on the distinction between “must” and “should,” and
argue that the HAMP guidelines encouraged, but did not require that they report Pittman’s TPP.
We acknowledge the difference between the language in the guidelines when a borrower is
delinquent and when a borrower is current.
However, apart from these guidelines, under FCRA, we initially ask about the
completeness and accuracy of the reporting. And failing to report the existence of the TPP
constitutes incomplete reporting. Reporting that Pittman was delinquent on his loan payments
without reporting the TPP implies a much greater degree of financial irresponsibility than was
present here. And the existence of and Pittman’s compliance with the terms of the TPP is
relevant information about the status of his mortgage loan. Without this information, the
Servicers’ reporting was incomplete. Consequently, we think the district court erred in
https://www.hmpadmin.com/portal/programs/docs/hamp_servicer/mhahandbook_31.pdf
No. 17-1677 Pittman v. Experian, et al. Page 23
concluding that Pittman lost at the “threshold question of whether there were reporting errors by
iServe and BSI.” (R. 96, Opinion, PageID # 2380.)
Because Pittman can meet the threshold showing necessary for a FCRA claim, the district
court should have gone on to consider the reasonableness of the Servicers’ investigations and the
duties under § 1681s-2(b). Because both of the Servicers knew about the TPP and because
Pittman has produced a number of emails by and between the Servicers admitting that Pittman
should have received a permanent modification, we think there is a genuine issue of material fact
as to whether the Servicers conducted a reasonable investigation to determine whether the
disputed information could be verified. This seems especially true where the evidence suggests
that the Servicers knew or should have known that the information was being reported
inaccurately. See Jett v. Am. Home Mortg. Servicing, Inc., 614 F. App’x 711, 713–14 (5th Cir.
2015) (“American Home knew that Jett’s information was being reported inaccurately . . . .”).
As a result, the question of reasonableness of the investigations is a question for the trier of fact
to resolve. Nykoriak, 2010 WL 1923796, at *3. Consequently, we reverse the district court’s
grant of iServe’s and BSI’s motions for summary judgment and remand the case to the district
court.
II. Substantial Breach of the Loan Agreement
Standard of Review
This Court reviews a district court’s grant of summary judgment de novo. Gillis,
845 F.3d at 683 (citation omitted). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
Analysis
Under Michigan law, “[h]e who commits the first substantial breach of a contract cannot
maintain an action against the other contracting party for failure to perform.” Ehlinger v. Bodi
Lake Lumber Co., 36 N.W.2d 311, 316 (Mich. 1949) (quoting Jones v. Berkey, 148 N.W. 375,
378 (Mich. 1914)). The “determining factor” in any case is “whether a first breach is
No. 17-1677 Pittman v. Experian, et al. Page 24
‘substantial.’” Chrysler Int’l Corp. v. Cherokee Exp. Co., 134 F.3d 738, 742 (6th Cir. 1998).
“[T]he words ‘substantial breach’ in the ruling must be given close scrutiny.” McCarty v.
Mercury Metalcraft Co., 127 N.W.2d 340, 343 (Mich. 1964).
Such scrutiny discloses that the application of such a rule can be found only in
cases where the breach has effected such a change in essential operative elements
of the contract that further performance by the other party is thereby rendered
ineffective or impossible, such as the causing of a complete failure of
consideration or the prevention of further performance by the other party.
Id. (internal citations omitted).
In Jawad v. Hudson City Savings Bank, the plaintiffs sued their mortgage servicer for,
among other things, breach of contract for failing to follow contractual notice provisions prior to
the acceleration of their mortgage. 636 F. App’x 319, 321 (6th Cir. 2016). The district court
ruled that the plaintiffs were barred from alleging breach of contract against their mortgage
servicer because they substantially breached the contract first by failing to make an unspecified
number of mortgage payments. Id. at 322. This Court disagreed and found that “falling behind
on their mortgage payments was not a substantial breach.” Id. The Court noted that the notice
provision expressly contemplated breach by the plaintiff and provided that “if plaintiffs breached
the contract, the banks would provide notice prior to acceleration.” Id. “[P]laintiffs’ missed
payments did not render notice of acceleration ineffective or impossible.” Id. “A breach
contemplated by the language of the contract is unlikely to render performance impossible,
especially when the contract provides for a contingency in the event of that breach.” Id.
Here, as in Jawad, falling behind on mortgage payments does not constitute a substantial
breach. The mortgage itself contemplated default in multiple places and provided for what could
occur in the event of breach. Additionally, the mortgage provisions regarding property taxes and
escrow provided procedures for various contingencies, including for when deficient funds are
held in escrow. Pittman’s two missed payments in 2011 did not render BSI’s placement of funds
into escrow to pay property taxes for 2013 and 2014 ineffective or impossible. It also did not
cause a complete failure of consideration or prevent further performance by BSI. BSI continued
to accept Pittman’s monthly payments and at no point did BSI initiate mortgage foreclosure
proceedings.
No. 17-1677 Pittman v. Experian, et al. Page 25
Because we do not believe Pittman’s two missed payments constitute a substantial
breach, Michigan’s first substantial breach rule does not prevent Pittman from bringing a breach
of contract claim against BSI. Consequently, we reverse the district court’s grant of BSI’s
motion for summary judgment on Pittman’s breach of contract claim and remand the claim to the
district court.
III. Motion to File an Amended Complaint
Standard of Review
The denial of Pittman’s motion for leave to amend his complaint is reviewed under an
abuse of discretion standard. Ziegler v. Aukerman, 512 F.3d 777, 786 (6th Cir. 2008). An abuse
of discretion occurs when the district court “relies on clearly erroneous findings of fact, or when
it improperly applies the law or uses an erroneous legal standard.” Adcock-Ladd v. Sec’y of
Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citation omitted).
Analysis
Leave to amend should be “freely” granted “when justice so requires.” Fed. R. Civ. P.
15(a)(2). “In the absence of any apparent or declared reason—such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely
given.’” Foman v. Davis, 371 U.S. 178, 182 (1962). While “the grant or denial of an
opportunity to amend is within the discretion of the District Court,” “outright refusal to grant the
leave without any justifying reason appearing for the denial is not an exercise of discretion,” but
“abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Id.
“Although Rule 15(a) indicates that leave to amend shall be freely granted, a party must
act with due diligence if it intends to take advantage of the Rule’s liberality.” United States v.
Midwest Suspension & Brake, 49 F.3d 1197, 1202 (6th Cir. 1995) (citation omitted). This Court
“has required ‘at least some significant showing of prejudice’ to deny a motion to amend based
solely upon delay.” Prater v. Ohio Educ. Ass’n, 505 F.3d 437, 445 (6th Cir. 2007) (citation
No. 17-1677 Pittman v. Experian, et al. Page 26
omitted). “The longer the period of an unexplained delay, the less will be required of the
nonmoving party in terms of a showing of prejudice.” Phelps v. McClellan, 30 F.3d 658, 662
(6th Cir. 1994) (citation omitted).
In Siegner v. Twp. of Salem, the Court found no abuse of discretion where a month had
passed after the dispositive motion cut-off date and nearly two months had passed after the close
of discovery, and where the plaintiff was long aware of the basis for the claim to be amended.
654 F. App’x 223, 228–29 (6th Cir. 2016). The Court said “[a]llowing an amendment after
discovery is closed and summary judgment motions are ‘fully briefed’ imposes significant
prejudice on defendants.” Id. at 228. In Duggins v. Steak ‘N Shake, Inc., the Court found no
abuse of discretion where the plaintiff was aware of the basis of the claim, but provided no
justification for the delay, and where discovery had closed, the dispositive motion deadline had
passed, and a motion for summary judgment had been filed. 195 F.3d 828, 834 (6th Cir. 1999).
The Court said “allowing amendment after the close of discovery creates significant prejudice.”
Id. In Holland v. Metro. Life Ins. Co., the Court said “[w]here discovery is completed, the
burden imposed on the defendant by allowing an amendment is greater, since the defendant
likely will have begun trial preparation based on the issues aired in the discovery process.” 869
F.2d 1490, at *2 (6th Cir. 1989); see also Wade v. Knoxville Utils. Bd., 259 F.3d 452, 459 (6th
Cir. 2001).
The district court did not abuse its discretion in denying Pittman’s motion for leave to file
a second amended complaint. On November 10, 2014, the district court entered its scheduling
order. Pursuant to that order, the deadline for Pittman to amend or join parties was on November
21, 2014, the deadline for discovery motions was June 30, 2015, and the deadline for completing
discovery was July 31, 2015.
On November 11, 2014, Pittman filed an amended complaint, which added iServe as a
defendant and added a claim against BSI for breach of contract. On January 9, 2015, Pittman
filed a motion for leave to file a second amended complaint in order to add Pacifica as a party
and to raise additional counts. On February 25, 2015, Pittman filed an amended motion for leave
to file a second amended complaint. On February 26, 2015, Pittman withdrew this motion. On
June 24, 2015, the district court entered an order striking the amended motion for leave to file a
No. 17-1677 Pittman v. Experian, et al. Page 27
second amended complaint because Pittman did not attach a copy of the second amended
complaint to the motion and the court was not sure which complaint Pittman wanted to file. On
June 29, 2015, Pittman filed a renewed motion for leave to file a second amended complaint. On
November 9, 2015, Pittman filed notice of withdrawal of his renewed motion.10 On November
25, 2015, BSI filed a motion for judgment on the pleadings. On December 11, 2015, iServe filed
a motion for judgment on the pleadings. On January 18, 2016, Pittman filed a motion for leave
to file a second amended complaint. On May 11, 2016, the district court heard and denied the
motion.
The January 2016 motion was Pittman’s fourth request to amend his complaint for a
second time. Pittman unsuccessfully attempted to amend his amended complaint three other
times. He withdrew two of those requests, and a third was struck by the district court because of
his failure to comply with local rules, as mentioned above. Discovery had closed on July 31,
2015, about five months before Pittman filed his last motion for leave to amend. All the
deadlines in the district court’s scheduling order had expired and the case was ready to proceed
to the next phase. It does not appear that Pittman tried to have the scheduling order modified.
Additionally, there were two dispositive motions pending, which had been fully briefed.
In all, Pittman unduly delayed moving for leave to amend his complaint for more than a
year and provided no excuse or justification for the delay. On top of that, allowing amendment
months after the close of discovery and after dispositive motions were filed and briefed would
have resulted in significant prejudice to the Servicers. Consequently, we do not believe the
district court abused its discretion in denying this motion for leave to amend. We affirm the
district court’s denial of Pittman’s motion for leave to amend his complaint because there was no
abuse of discretion.
10We note that the district court’s failure to rule on a motion for five months constituted questionable case
management.
No. 17-1677 Pittman v. Experian, et al. Page 28
IV. Motion to Compel Depositions of iServe Representatives
Standard of Review
The Court reviews decisions regarding discovery matters under an abuse of discretion
standard. Interactive Prods. Corp. v. a2z Mobile Office Sols., Inc., 326 F.3d 687, 700 (6th Cir.
2003) (citation omitted). An abuse of discretion occurs when the reviewing court is left with “a
definite and firm conviction that the court below committed a clear error of judgment.” Id.
(citation omitted).
Analysis
District courts have broad discretion over docket control and the discovery process. See
In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996). “It is well established that the scope
of discovery is within the sound discretion of the trial court.” Lavado v. Keohane, 992 F.2d 601,
604 (6th Cir. 1993) (citation omitted). “In addition to according substantial deference to the
district court’s discovery decisions, appellate courts will not reverse a decision to limit discovery
‘absent a clear showing that the denial of discovery resulted in actual and substantial prejudice to
the complaining litigant.”’ Ginett v. Fed. Express Corp., 166 F.3d 1213, at *4 (6th Cir. 1998)
(quoting Gile v. United Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996)).
“A district court may properly deny a motion to compel discovery where the motion to
compel was filed after the close of discovery.” Willis v. New World Van Lines, Inc., 123 F.
Supp. 2d 380, 401 (E.D. Mich. 2000) (citing Ginett, 166 F.3d 1213). In a number of cases,
courts have denied discovery motions filed after the close of discovery. See Glob. Fleet Sales,
LLC v. Delunas, No. 12-15471, 2016 WL 2342319, at *2 (E.D. Mich. May 4, 2016) (denying a
motion to compel that was filed after the close of discovery and plaintiffs provided no
explanation for the delay and had reason to know of the evidence sought prior to the deadline);
AVKO Educ. Research Found. v. Morrow, No. 11-13381, 2013 WL 1395824, at *11 (E.D. Mich.
Apr. 5, 2013); Suntrust Bank v. Blue Water Fiber, L.P., 210 F.R.D. 196, 200–01 (E.D. Mich.
2002) (denying plaintiff’s motion to compel 18 months after discovery had closed); Willis,
123 F. Supp. 2d at 401 (denying plaintiff’s motion to compel made four months after the close of
discovery and five days before the hearing on defendant’s motion for summary judgment).
No. 17-1677 Pittman v. Experian, et al. Page 29
This is especially true where the moving party had the information it needed to file the discovery
motion and its late filing would prejudice the other party. See Glob. Fleet Sales, LLC, 2016 WL
2342319, at *2; Suntrust Bank, 210 F.R.D. at 200–01.
Reviewing courts have also affirmed the denial of untimely motions to compel. See
Craig-Wood v. Time Warner N.Y. Cable LLC, 549 F. App’x 505, 508 (6th Cir. 2014) (finding
that the district court did not abuse its discretion in denying plaintiff’s motion to compel because
the motion was not filed until two months after discovery closed and two days after defendant
filed its motion for summary judgment); Spurlock v. Whitley, 79 F. App’x 837, 839 (6th Cir.
2003) (per curiam) (affirming the denial of discovery where plaintiff had ample opportunity
during discovery period to examine evidence at issue); Ginett, 166 F.3d at *4 (affirming the trial
court’s denial of a motion to compel after the discovery deadline); see also Packman v. Chicago
Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001) (finding no abuse of discretion in denying motion
to compel filed after discovery closed, the summary judgment briefing schedule had been set,
and defendants had filed their summary judgment motion); Kalis v. Colgate–Palmolive Co.,
231 F.3d 1049, 1058 (7th Cir. 2000) (finding no abuse of discretion in denying motion to compel
filed after discovery closed and summary judgment motion was filed). “In general, a district
court does not abuse its discretion by denying an untimely motion to compel that violated
unambiguous discovery deadlines . . . .” Craig-Wood, 549 F. App’x at 508.
The scheduling order entered on November 10, 2014 provided that the deadline for
discovery motions was June 30, 2015, and the deadline for completing discovery was July 31,
2015. Pittman added iServe as a defendant in his first amended complaint filed on November 11,
2014. Though Pittman had more than eight months to depose iServe representatives, he did not
conduct any depositions during those months. Prior to his motion, Pittman did not seek a
modification of the scheduling order. Pittman’s December 4, 2015 motion to compel was filed
five months after the discovery motion deadline, and almost four months after the deadline to
complete discovery. Finally, the motion was filed more than a week after BSI had moved for
judgment on the pleadings.
No. 17-1677 Pittman v. Experian, et al. Page 30
In light of Pittman’s lack of diligence and failure to conduct any depositions of iServe
representatives, we do not believe the district court abused its discretion in denying his motion to
compel. Consequently, we affirm the district court’s denial of Pittman’s motion.
CONCLUSION
Based on the foregoing, we AFFIRM in part and REVERSE in part the district court’s
judgment and REMAND for proceedings consistent with this opinion.