our next case this morning is taylor versus j p morgan chase and mr gerard if you would pause for just a moment until we clear the rest of the court room here contract principals answer the central question whether chase made an offer to mr taylor and that's core my argument begins at page twenty eight dollars a of the appendix the standard for whether there was an offer is whether any reasonable person doing everything in the context would view would view it was sent as an offer and the answer here is plainly yes page twenty eight the word offer is used three times indeed in capital letters it says let us know that you accept this offer it tells mr taylor that if you qualifies and he complies with the terms of the trial period plan we will modify your mortgage and no uncertain terms on the next page uses the term offer twice also explaining what it is that he has to do to accept this offer of following page it says once we are able to confirm your income and eligibility for the program we will finalize your modify the loan term so at that point mr taylor as any reasonable person would understood that he was getting an offer from chase bank if he sent in a trial period payment and the materials the chase requested then chase would be bound to enroll him in a trial period so at that point there is a contract now the next question then is once there is a contract if mr taylor upheld his end of the bargain did chase breach by not upholding its end of the bargain and mr taylor certainly did like to remind the court that at the stage of the litigation you have to accept all of the facts as true as played by mr taylor and so mr taylor alleged that he was qualified that he remained qualified that he sent in all of the payments not only did he alleged those things he actually attached them all to the copy or so three responses that your honor st again read in context the answer the question has to be what would a reasonable view or a reader understand that to mean as explained in our brief the sentence proceeding the sentence that chase relies on explains of this is just a method of communication what it says is if you do qualify we will send this back and if you don't we will send you something that says you're not qualified not isn't a kind of absolute escape route for chase to just not send it back whenever it sees fit allowing it to continue to take the payment to induce mr taylor to think that yet part of prima nd you have to interpret any ambiguities against the drafter of the document so to the extent that it  is big us at all which we don't think it is it still has to be interpreted against chase and in favor of mr taylor and then finally even if it were viewed in favor of chase which it can't be at this point the litigation and because chase was the draft even if that were the case chase itself told mr taylor that it didn't rely on that mr taylor was very active he followed up he did everything that he was supposed to do he called chase a number of times and he spoke to a supervisor named christmas gummer and said hey i'm sending this in i haven't received anything yet and he was told by chase don't worry i don't know of a single instance in which we've ever signed these and sent those back so even viewing that is some kind of requirement some kind of condition that she's had that it used to get out of being in a contract at all that condition by telling mr taylor that it simply doesn't do that and of course mr taylor reasonably then continued to send and payments as any reasonable person would understand your argument to be was a condition of the of the contract it was waived by both mongomery statement and war the conduct of accepting the reduced payments the record doesn't tell us anything about what happened after that i mean it does tell us that mr taylor contacted chase and said hey i've held my end of the bargain i paid the three payments and i was told that after i paid the three payments my loan would be permanently modified i've upheld my end of the bargain now it's time for you don't hold your end of the bargain but after that in terms of the payments we don't have any anything in the record mr taylor just included in his documents and his pleadings that he had satisfied the trial alleged so at that point and this is this is exactly why i got at that point once there's an agreement once there is a contractual obligation and once the plaintiff once the homeowner has satisfied his or her end of the of the bargain at that point the bank is obligated to offer a permanent modification now in chase's briefs i think chase conflates with mr taylor saying that from the get go mr taylor was  owed a permanent modification that's just not that's not the case that's not what he's ever alleged and that's nothing out where arguing here the agreement was that if mr taylor satisfied certain conditions then chase would do that and that was the agreement and he held his end of the bargain mr george can you can you address why i got a bit and in my god as i read it it it seemed quite significant to the court that wells fargo there had returned i think it was a ham document right and there was an argument about whether the there needed to be a fully executed version of the modification agreement is well but it sure seems to me that the court and why god attach significance to the lender but the heavier lifting was in later stages right but if if the court were to treat step one of why god step one of the t p any differently than steps two and then it wouldn't make sense because step two of why god said look at this point you still didn't sign it and send it back but we we can't read this to give the bank such unbridled discretion to kind of do whatever it wants and it wouldn't make any sense to import something totally different into step one so it was an easy answer of step one and why god but we don't think that that makes any significant difference here so unless there's any further questions about the about the contract the formation of the contract and i can go to the breach which as i mentioned before mr taylor alleged that he was qualified you allege that he made his three payments and he allegedly remained qualified at that point chase had an obligation to offer him a permanent modification it's that simple and i think that once it is concluded that there is a contract here then it's the answer whether it was breached was simple chase simply did not offer him the permit modification that it was obligated to under the contract and i might add as highlighted in why god under the federal program this isn't a federal program that gave chase discretion to decide whether or not it wanted to offer people modifications as a condition of the receipt of the taxpayer funds the twenty five billion in taxpayer funds chase had an obligation to offer the modifications to anybody who was qualified and remain qualified now quickly just a promissory estoppel i think that a condition that was not satisfied here i think that if there were the if there was a promise there was a condition i agree and a conditional promise can count for promissory estoppel the condition was that mr taylor satisfy his end of the bargain which is exactly what he did  so i think that the condition as it existed was satisfied only contract period before you move on what do you think what's mr taylor's theory for his damages how was he what did he do differently or what would he have done differently if in his view the bacon strung along for so long well he would have had a modified mortgage so his mortgage payments that he owed would be significantly lower to it but there's nothing in the record that shows any information about it so that would be a question of fact that could be dealt with on remand and i'd like to turn to the fraud in the i a b claims beginning with the fraud claim i like to say that  mr taylor especially as a pro se litigant pleaded that chase made false representation that they were knowingly false and the way that they were knowingly false was that they were promises of future conduct that the bank at the time knew it wasn't going to chase knew that it had no intention of modifying the mortgage that it had no intention of upholding its end of the bargain and yet it strung him along anyway and it did so to his detriment not sufficient again at this stage at the pleading stage for there to be a fraud claim now i do want to just make two quick notes at page seventy eight through eighty of the appendix mr taylor alleged all of the facts that constitute a fraud claim i was a pro se litigant she wasn't required to put those allegations under the heading of fraud but that's something that this court has held going back to nine hundred and ninety two dollars that it's not what claim that you outlined but it is the facts and if they can support any period recovery if we were to find the weight of indiana authority rejected promissory fraud as a kind of a fraud you know focused so that he would need to show false representation of a present or past fact really is any such myth representational edge here i don't think there's any misrepresentation of a past fact that would be sufficient for fraud but i'd have to take another look because the i think the argument is that it was the future promise so he hasn't argued that but i i also do want to say that he he incorporated in his fraud claim the fraud claim that the district court addressed  he incorporated all of his previous allegations of the nd complaint of the amended complaint and that right there is sufficient for it to be on the district court's radar that he was alleging a common law fraud and it should have been addressed but it wasn't  show that i've been injured and the court should consider it but the district court to not consider it and then finally i want to turn to the i a d claim now in indiana the indiana courts have ruled that just failure to after that for five years it left him hanging in the balance under a standing order of foreclosure is twice scheduled his home for sheriff sales and he alleged and pages one  like the language when it says at one point if you accept this offer and see if you qualify to accept this offer and see if you qualify the offer was applying for permanent modification have gave banks a couple options one of the options was with the bank roll calls option b option b to talk to someone over the phone to see if they might qualify you send a letter for a trial plan  technican while the trial plans in place you look at documentation you get from that person to see if they truly do qualify for a loan and then you either give it to them or you don't so here the trial plan was here's an offer for you to apply for this modification agreement sweetened the qualification is an objective evaluation of if there are certain standards by which if i remember a call it's your payment a was discretion to decide whether to offer a permanent modification no not under hamp under hamp there are certain criteria and it was yeah it was a follow the rules now us interesting question to mr gerard that couldn't answer which was what happened after credit for his account for what it would have been had he gotten it earlier so this is all interesting and a great economics or size for the law clinic but it's kind of all a lot of much ado about nothing well you may see it that way by the way the issue is framed discussed that there is not a cut nice simple contract what the letter said was we will consider you chase considered him chase determined that that time that he was not at i'm not qualified under requirement given the document as a whole we still have the way for arguments based on my gum restatement and based on the bank's conduct so how do we decide those in your favor on if you look at the language of the contract but no i'm glad we got the language of the mantra of the offer but then we have montgomery saying i don't know that we've ever done that correct right correct and we have the bank continuing to accept the reduced payments over a period of months right and what an eighty nine month delay in saying oh we don't think you qualify so right now i get that  what we go back on as a breach of contract and we can file a motion then so be it i can live with that but i certainly don't want to go back on it's a promissory estoppel claim a fraud claim and intentional and look like i think that's frankly just piling on no reasonable reliance given the qualifiers and there he can't show any damages as a result certainly not and then in terms of the fraud and the intentional infliction claims council completely ignored  mr gerard said they never intended for me to do this they were stringing me along and what jeffrey court said was that certainly doesn't come anywhere close to the kind of beyond the pale outrageous conduct that's required by an intentional action what i should have you notice them and i don't remember a thought in my head that they were with the word roast in the reply brief right and those questions might actually be considerably more nuanced than your procedures and i don't know how we decide those in the court properly found that that he didn't we didn't have standing to make this argument after sticking to force those arguments so now they come up with these new claims that are basically based on again will you never intended to give this to me again that  you can't get around it by simply just putting the fraud the language in there and then just relying on it but all things considered we believe the district court did not air in dismissing what should this case determine that there were term and that there was the north there to state a claim for breach of contract we would ask to be remanded solely on that claim and that we could raise the lower court things again like  determined a little bit later that you know part of that modification was because the opt out of a class action so we need to delve further deeper it but i don't expect you guys to that thank you thank you talking about and fraud it's not just look to anything in the st amount of complaint on page eighty two dollars a under the heading fraud it incorporates all of the other allegations that there's no further questions we ask this court to reverse some remand for and assistance to the court thank you