UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

HOWARD PITTMAN, 

 

 Plaintiff, Case No. 14-13591 

 Honorable Victoria A. Roberts 

v. 

 

EXPERIAN INFORMATION 

SOLUTIONS, INC., et al., 

 

 Defendants. 

_____________________________/ 

ORDER: (1) GRANTING DEFENDANT BSI’S MOTION FOR 

SUMMARY JUDGMENT [Doc. 100]; (2) DEEMING MOOT BSI’S 

MOTION IN LIMINE [Doc. 99]; AND (3) DISMISSING THE CASE 

I. INTRODUCTION AND BACKGROUND 

Howard Pittman (“Pittman”) filed this case against several parties, including 

Servis One, Inc. d/b/a BSI Financial Services (“BSI”) and iServe Servicing, Inc. 

(“iServe”). The case relates to (1) Pittman’s mortgage loan, which iServe serviced until 

June 2012 when it transferred servicing obligations to BSI; (2) a trial modification plan 

(“TMP”) from January 2012 to March 2012; and (3) a permanent loan modification, 

which was executed in September 2016, but made retroactive to March 2012. BSI is 

the sole remaining defendant. 

Pittman alleges three claims against BSI: (1) negligent violation of the Fair Credit 

Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq.; (2) willful violation of the FCRA; and 

(3) breach of contract. Pittman says BSI violated the FCRA by incorrectly reporting to 

credit reporting agencies (“CRAs”) that his account was past due between September 
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2012 and July 2014; he says BSI breached the mortgage agreement by failing to pay 

property taxes on his property in 2013 and 2014. 

 Pittman and iServe previously filed cross motions for summary judgment. iServe 

moved for summary judgment on Pittman’s two FCRA claims against it; Pittman moved 

for summary judgment on his two claims against iServe as well as on all three claims 

against BSI. 

In an order dated November 30, 2016, the Court (1) denied Pittman’s entire 

motion; (2) granted iServe’s motion and dismissed it from the case; and (3) found, in 

relevant part, that: 

a) Under the original mortgage agreement, Pittman was required to make 

monthly payments of $1980.42; 

b) After Pittman failed to make mortgage payments in August and 

September 2011, iServe granted him a TMP on his mortgage, 

temporarily reducing his monthly payment to $1,357.80 for January, 

February and March 2012; 

c) The TMP explicitly states that it is not permanent and that Pittman’s 

credit may be adversely affected by accepting its terms; 

d) Pittman timely made the three trial payments and continued to make 

payments for $1,357.80 each month to iServe. However, the TMP was 

never made permanent in writing by iServe; 

e) After the loan was assigned to BSI, Pittman continued to make the trial 

period payments of $1,357.80; 

 

f) Because the TMP was temporary, and because Pittman was on notice 

that his credit score could be adversely affected by accepting the TMP, 

Pittman cannot show iServe or BSI made an error in reporting his loan 

payments as overdue. 

[Doc. 96, PgID 2373-74, 2377, 2380 (minor alterations throughout)]. 

 In addition to stating that Pittman’s credit score may be adversely affected by 

accepting its terms, the TMP also stated that: (1) “Your existing loan and loan 
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requirements remain in effect and unchanged during the trial period”; (2) “acceptance 

and posting of your new payment during the trial period . . . 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”; and (3) “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.” [Doc. 90-1]. 

 BSI did not file a timely dispositive motion. However, the Court granted BSI’s 

request to file an untimely motion for summary judgment based on the findings in the 

November 30 order. That motion is now before the Court. 

II. DISCUSSION 

 A. Summary Judgment Standard 

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.” Federal Rule of Civil Procedure 56(a). The moving party has the initial burden to 

demonstrate the basis for its motion and identify portions of the record that show an 

absence of a genuine issue of fact. Mt. Lebanon Personal Care Home, Inc. v. Hoover 

Universal, Inc., 276 F. 3d 845, 848 (6th Cir. 2002). Once that burden is met, the nonmoving party must set forth specific facts that present a “genuine issue for trial.” Id. 

The existence of a mere scintilla of evidence to support a plaintiff’s position will not 

suffice; there must be evidence on which the jury could reasonably find for the plaintiff. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Parties must support 

assertions of fact by “citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, affidavits or declarations, 
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stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). 

B. Pittman’s FCRA Claims Fail 

 To succeed on an FCRA claim, a consumer must show, among other things, that 

the defendant made a reporting error. See Spence v. TRW, Inc., 92 F.3d 380, 382 (6th 

Cir. 1996) (affirming the dismissal of a plaintiff’s FCRA claims on summary judgment 

because the plaintiff could not prove information provided by CRAs was inaccurate). 

The Court previously found that “Pittman cannot show iServe or BSI made an 

error in reporting his loan payments as overdue.” For that reason, among others, BSI 

says it is entitled to summary judgment on Pittman’s FCRA claims. The Court agrees. 

 Pittman defaulted on his loan when he failed to make a mortgage payment in 

August and September 2011. In addition, the TMP explicitly provided that the 

acceptance of trial period payments does not cure previous defaults, and the original 

terms of the loan were still in effect and would remain in effect unless and until a 

permanent loan modification was executed. Therefore, even when Pittman was making 

the trial payments of $1,357.80, the loan was still deficient based on the missed 

payments and based on the trial period payment being less than the amount due under 

the original terms of the loan (i.e., $1980.42). Because the loan remained overdue, the 

TMP expressly notified Pittman that his credit may be adversely affected. 

 As the Court previously found, Pittman cannot show that BSI made a reporting 

error because his loan remained past due. Therefore, under the law of the case 

doctrine, Pittman’s FCRA claims fail as a matter of law. See Scott v. Churchill, 377 F.3d 

565, 569-70 (6th Cir. 2004) (Under the law of the case doctrine, findings made at one 
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point in a case “continue to govern the same issues in subsequent stages in the same 

case”). 

 Pittman says the Court should find otherwise based on the permanent loan 

modification he and BSI executed in September 2016, which is retroactive to March 

2012. Pittman fails to identify any authority supporting this argument; for that reason 

alone, the argument fails. More importantly, however, it fails on the merits. At the time 

BSI reported that Pittman’s loan was past due, it was past due. Therefore its reports 

were accurate, and not in violation of the FCRA. 

 Pittman also points to a March 2013 email from BSI to Pittman’s attorney stating, 

“Have [Pittman] . . . continue [making] the trial payment amount. I will try to get the 

mod[ified] payment as close as I can to that.” Based on this email, he argues that: (1) 

“BSI’s reporting of [his] account as delinquent, without indicating that [he] continued to 

pay BSI the trial payment amount during that time period as directed by BSI, renders its 

reporting inaccurate under 12 C.F.R. § 1022.41(a)”; and (2) BSI should be equitably 

estopped from claiming that his account was delinquent because the email caused him 

to believe that the trial payment amount completely satisfied his monthly payment 

obligation. Neither argument has merit. 

 Besides quoting the statute, Pittman fails to provide support for his conclusory 

assertion that BSI’s failure to indicate that he continued to make the trial payment 

amount renders its reporting inaccurate. Contrary to Pittman’s unsupported argument, 

BSI’s failure to indicate that he continued making the trial payment amount did not 

violate the FCRA. 
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The TMP explicitly provides that the acceptance of trial period payments did not 

cure Pittman’s default and that the original terms of the loan remained in effect until the 

parties executed a permanent loan modification. It is clear from the email that no loan 

modification had been executed; the emails between BSI and Pittman’s counsel leading 

up to the above-quoted email show that the parties were attempting to finalize the terms 

of a permanent loan modification, but had not yet executed an agreement. Therefore, 

the loan remained past due based on Pittman’s failure to make payments in August and 

September 2011 and his failure to pay the full monthly payment amount under the loan. 

Accordingly, BSI’s reports that Pittman’s loan was past due were accurate, and did not 

violate the FCRA. 

Pittman’s equitable estoppel argument also fails. As a procedural matter, 

Pittman’s equitable estoppel argument fails because he supports it with conclusory and 

unverified statements, rather than admissible evidence from the record. Under Rule 

56(c), Pittman’s conclusory and unsupported assertions cannot establish a genuine 

issue of material fact, and they are insufficient to withstand summary judgment. Fed. R. 

Civ. P. 56(c)(1). Notwithstanding these procedural deficiencies, Pittman’s equitable 

estoppel argument fails as a matter of law. 

“Under Michigan law: ‘Equitable estoppel arises where one party has knowingly 

concealed or falsely represented a material fact, while inducing another’s reasonable 

reliance on that misapprehension, under circumstances where the relying party would 

suffer prejudice if the representing or concealing party were subsequently to assume a 

contrary position.’” Price v. Annuity Investors Life Ins. Co., 244 Fed. Appx. 654, 658 

(6th Cir. 2007) (quoting Adams v. City of Detroit, 232 Mich. App. 701, 708 (1998)). See 
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also Atkinson v. Atkinson, 160 Mich. App. 601, 607 (1987) (“Equitable estoppel arises 

when one causes another, by acts, representations, or silence, intentionally or through 

culpable neglect, to believe in the existence of some material fact and to detrimentally 

rely on the existence of such fact.”). 

Based on the clear language of the TMP and second sentence in the email (i.e., 

“I will try to get the mod[ified] payment as close as I can to [the trial payment amount].”), 

BSI’s email could not have reasonably caused Pittman to believe the trial payment 

amount satisfied his monthly payment obligation. Because the email clearly indicates 

that BSI was still trying to finalize the terms and payment amount for a permanent 

modification, such that no modification had been executed, it would be unreasonable for 

Pittman to believe the email permanently modified only his monthly payment amount. 

This is especially true when considering the TMP provides that: (1) the original terms of 

the loan remained in effect unless and until a permanent modification was executed; 

and (2) “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” [Doc. 90-1 (emphasis 

added)]. In addition, even if the email did modify his monthly payment obligation, the 

Court would not estop BSI from claiming Pittman’s account was delinquent, because his 

loan remained past due based on the missed payments in August and September 2011. 

Moreover, any reliance was not detrimental to Pittman. The loan was still in 

default based on Pittman’s failure to make the August and September 2011 monthly 

payments; therefore, BSI reporting that the loan was overdue was accurate without 

even considering the fact that Pittman’s payments were lower than the amount due 

under the original terms of the loan. In addition, Pittman fails to show that he could 
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have made the full payment amount. After the TMP ended in March 2012, Pittman 

continued making the $1,357.80 trial period payment rather than the $1980.42 amount 

due under the loan. Notably, Pittman does not explain why he continued to make the 

lower trial payment amount after the TMP ended but before he received BSI’s March 

2013 email. 

Pittman’s equitable estoppel argument fails; his reliance was neither reasonable 

nor detrimental. 

 Because no genuine issue of material fact exists, and it is clear that BSI did not 

make a reporting error regarding the status of Pittman’s loan, BSI is entitled to judgment 

as a matter of law on Pittman’s FCRA claims. 

C. Pittman’s Breach of Contract Claim Fails 

 Pittman claims BSI breached the mortgage agreement by failing to pay property 

taxes on his property in 2013 and 2014. BSI says Pittman’s breach of contract claim 

fails as a matter of law because it is undisputed that he was the first to breach. The 

Court agrees. 

 Under Michigan law, a party “who commits the first substantial breach of a 

contract cannot maintain an action against the other contracting party for failure to 

perform.” Chrysler Int’l Corp. v. Cherokee Exp. Co., 134 F.3d 738, 742 (6th Cir. 1998) 

(citations and internal quotation marks omitted). Whether a breach is “substantial” is the 

determining factor. “The Michigan Supreme Court has explained that a ‘substantial 

breach’ is one ‘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 
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ineffective or impossible, such as the causing of a complete failure of consideration or 

the prevention of further performance by the other party.’” Id. (citation omitted). 

 Here, Pittman breached the agreement first by failing to make monthly payments 

in August and September 2011. There can be no dispute that this constitutes a 

“substantial” breach, as it deprived BSI/iServe of the complete benefit of the bargain. It 

also prevented performance by BSI/iServe because a portion of each payment was 

placed in escrow to pay property taxes. Because no genuine issue of fact exists that 

Pittman committed the first substantial breach of contract, he cannot maintain an action 

against BSI for failure to perform. See id. BSI is entitled to judgment as a matter of law. 

III. CONCLUSION 

 BSI’s motion for summary judgment [Doc. 100] is GRANTED; its motion in limine

[Doc. 99] is MOOT; and this case is DISMISSED. 

IT IS ORDERED. 

 S/Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: May 19, 2017May 19, 2017 

The undersigned certifies that a copy of this 

document was served on the attorneys of record 

by electronic means or U.S. Mail on May 19, 

2017May 19, 2017. 

s/Linda Vertriest 

Deputy Clerk