UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID M. LAMOTHE and DONNA

M. LAMOTHE, 

CASE NO. 15-CV-10701

Plaintiffs, HONORABLE GEORGE CARAM STEEH

v.

WELLS FARGO BANK, N.A.,1

Defendant.

 /

ORDER GRANTING DEFENDANT’S MOTION

TO DISMISS (DOC. #4) AND DISMISSING ACTION

Plaintiffs brought this action challenging defendant’s denial of the permanent

modification of their residential mortgage loan. Now before the court is defendant’s motion

to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. #4). For the

reasons that follow, defendant’s motion will be granted.

I. BACKGROUND

In April 2006, plaintiffs purchased the home located at 44621 Aspen Ridge Drive,

Northville, MI 48168. Plaintiffs obtained a loan from World Savings Bank, FSB, defendant’s

predecessor in interest, in the amount of $337,600.00. The loan was evidenced by a note

and secured by a publicly recorded mortgage in the Wayne County Register of Deeds.

In mid-2014, plaintiffs applied for a mortgage loan modification. On May 1, 2014,

defendant informed plaintiffs that they were eligible to start a trial payment period (“TPP”)

1 Plaintiffs incorrectly named Wells Fargo Home Mortgage as defendant. The

case caption is amended to reflect the proper defendant, Wells Fargo Bank, N.A.

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that had the potential of ripening into a permanent loan modification. The TPP notification

stated, “[i]f you fail to provide a subordination agreement from another lender or fail to pay

off a judgment lien as required, your modification may be denied even if you pay the trial

period payments.” (Doc. #4-5 at 4). In addition, the letter informed plaintiffs that they were

required to make trial payments until a final modification was approved, and that the trial

period could be extended until such time. (Id.). The TPP directed: 

Submitting all required documentation to be considered for a modification

program is the first step. If you are eligible for a modification program, you

may need to successfully complete a “trial period” by making trial period

payments. Once we are able to finalize your modified loan terms near the

end of this trial period, we will send you a loan modification agreement

(“Modification Agreement”), which will reflect the terms of your modified loan. 

In addition to successfully completing the trial period, you will need to sign

and promptly return to us both copies of the Modification Agreement or your

loan cannot be modified. 

(Doc. 8-1 at 24). 

Plaintiffs made the requisite trial payments through October 2014. However, in a

letter dated October 3, 2014, defendant informed plaintiffs that the loan modification would

be denied because “[t]here are title issues with your property which prevents us from

completing your request for assistance.” (Doc. #4-6 at 2). At oral argument, defendant’s

counsel explained that there was a senior lien on the property that needed to be

subordinated. Plaintiffs were informed that they could appeal defendant’s decision and

were instructed on how they could go about doing so; they did not appeal. A modification

agreement was never sent to plaintiffs.

Currently, a foreclosure sale has not occurred on the property.

Plaintiffs filed this action in Wayne County Circuit Court seeking to quiet title to the

property in their names. Plaintiffs allege:

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Count I Quiet Title

Count II Breach Of Loan Modification Agreement

Count III Breach Of Agreement

Count IV Specific Performance

Count V Breach Of Duty Of Good Faith And Fair Dealing

Count VI Promissory Estoppel

Defendant removed the action to this court based on diversity jurisdiction, 28 U.S.C. §

1332, subsequently filing the instant motion to dismiss. Plaintiffs responded to the motion. 

In plaintiffs’ response, they request to set aside a sheriff’s sale and toll the running of the

redemption period, or, alternatively, to convert the foreclosure by advertisement to a judicial

foreclosure. However, there are no pending foreclosure proceedings on the property, nor

have foreclosure proceedings occurred in the past.

Defendant’s motion has been fully briefed. A hearing was held on July 2, 2015. The

motion is ready for decision.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows the court to make an assessment

as to whether the plaintiff has stated a claim upon which relief may be granted. Under the

Supreme Court’s articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 554–56 (2007), the court must construe the complaint in favor of

the plaintiff, accept the allegations of the complaint as true, and determine whether

plaintiff’s factual allegations present plausible claims. “[N]aked assertions devoid of further

factual enhancement” are insufficient to “state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Rule 12(b)(6) motion to dismiss,

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plaintiff’s pleading for relief must provide “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Ass’n of Cleveland

Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atlantic,

550 U.S. at 555) (citations and quotation marks omitted). Even though the complaint need

not contain “detailed” factual allegations, its “factual allegations must be enough to raise

a right to relief above the speculative level on the assumption that all of the allegations in

the complaint are true.” Id. (citing Bell Atlantic, 550 U.S. at 555).

III. ANALYSIS

Plaintiffs believe that they are entitled to a loan modification, or free and clear title

to their home, based upon a misconception that by allowing them to make payments for a

trial modification period, defendant committed to modifying plaintiffs’ mortgage loan

permanently. All of plaintiffs’ claims are based on this premise. However, plaintiffs are not

entitled, contractually or otherwise, to a modification of their mortgage loan based simply

on defendant’s agreement to allow plaintiff’s to engage in a trial payment period (“TPP”). 

As will be explained, all of plaintiffs’ claims fail to state a claim upon which relief can be

granted.

First, the TPP is not binding on defendant because it was not signed by either

defendant or plaintiffs. Goss v. ABN AMRO Mortg. Group, 549 F. App’x 466, 470 (6th Cir.

2013). Plaintiffs do not allege that defendant signed the TPP, and the copy of defendant’s

letter to plaintiffs informing them of the TPP, which is attached to the complaint and

plaintiffs’ response, is not signed by either party. Therefore, the TPP, to the extent that it

is considered a contract to permanently modify plaintiffs’ loan, is unenforceable and violates

the Michigan Statute of Frauds because it is not signed by defendant. See Mich. Comp.

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Laws 566.132(2); see also Ellis v. Chase Home Fin., LLC, No. 14-11186, 2014 WL

7184457, at *7 (E.D. Mich. Dec. 16, 2014) (Michelson, J.); Etts v. Deutsche Bank Nat. Trust

Co., No. 13-11588, 2014 WL 645358, at *10 (E.D. Mich. Feb. 19, 2014) (Goldsmith, J.);

Voydanoff v. Select Portfolio Serv., Inc., No. 298098, 2011 WL 6757841 (Mich. Ct. App.

Dec. 22, 2011).

Second, even if the TPP was signed by both parties, by its explicit terms, it was not

a contract for a permanent loan modification. Instead, it contemplated a modification

agreement to come in the future, if and when plaintiffs complied with certain conditions,

including making timely trial payments and providing requested documentation. Courts

have refused to read TPP’s “as promises to modify a borrower’s loan.” Goss, 549 F. App’x

at 470 (citations omitted). As the Sixth Circuit recently explained, a TPP is not a promise

to modify the loan; “the TPP was only an application for an offer to modify the loan

agreement provided certain conditions were met.” Id. Here, defendant informed plaintiffs

that there were title issues related to the property, and, therefore, conditions precedent to

modifying the loan were not met. Therefore, defendant communicated that it would not be

sending plaintiffs a modification agreement. Despite defendant’s written communication

explaining to plaintiffs how they could challenge this decision, plaintiffs did nothing. Even

if there were a contract, plaintiffs did not satisfy the terms of the contract that would allow

them a permanent modification of the loan. Plaintiffs’ failure to meet the requisite

conditions, and their failure to take advantage of defendant’s appeal process, undermines

their claims that defendant acted in bad faith.2

2

 The documents that lead the court to this conclusion are appropriate for

consideration on a motion to dismiss. In ruling on a motion to dismiss, the court may

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Third, assuming the TPP was signed by both parties and created a binding contract,

and that plaintiffs performed their end of the contract, it was not a binding contract for a

permanent loan modification. Courts in this district have held that TPP’s that expressly

state that conditions must be met to obtain a permanent modification, as well as make

reference to a future modification agreement that must be signed by both parties, are not

binding contracts for a permanent loan modification. Heikkinen v. Bank of Am., N.A., No.

11-12532, 2012 WL 628608, at *6 (E.D. Mich. Feb. 27, 2012) (Edmunds, J.) (“When

Plaintiff signed this document, she acknowledged that it did not promise that her mortgage

and note would be modified. Rather, it was merely an offer to do so if certain conditions

were satisfied[.]”); Fed. Home Loan Mortg. Corp. v. Hassell, No. 11-14564, 2013 WL

823241, at * (E.D. Mich. March 6, 2013) (Zatkoff, J.) (“Moreover, when Plaintiff signed the

Trial Plan, she acknowledged that it did not promise that her mortgage and note would be

modified. Rather, it was merely an offer to do so if certain conditions were satisfied.”). 

Instead, the contemplated future modification agreement, once signed by both parties,

becomes the contract for permanent modification. Here, plaintiffs did not satisfy a required

condition for a permanent loan modification because of “title issues.” Therefore, they never

got to the point where a permanent modification agreement was completed.

At oral argument, counsel for plaintiffs argued that the senior lien on the property

was an issue outside of plaintiffs’ control and could not serve as the basis for denying a

consider not only the complaint, but also (1) documents referenced in the pleadings and

central to plaintiff’s claims, (2) matters of which a court may take notice, and (3) public

documents. Tallabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

(“[W]hen a document is referred to in the pleadings and is integral to the claims, it may

be considered without converting a motion to dismiss into one for summary judgment.”).

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permanent loan modification. Even if the senior lien was an issue outside of plaintiffs’

control, however, the TPP expressly stated, “[i]f you fail to provide a subordination

agreement from another lender or fail to pay off a judgment lien as required, your

modification may be denied even if you pay the trial period payments.” (Doc. #4-5 at 4). 

Plaintiffs agreed to this provision without regard to whether obtaining a subordination

agreement or paying off a judgment lien was in their control.

For these reasons, all of plaintiffs’ claims fail to state a claim upon which relief can

be granted. As a result of the alleged failure to abide by a permanent modification of the

mortgage, plaintiffs seek to quiet title to the property in their names, asking the court to set

aside the sheriff’s sale and toll the redemption period. However, foreclosure proceedings

have not been initiated by defendant. And even if they had been, plaintiffs have not alleged

any fraud or irregularity sufficient to set aside a foreclosure sale. Conlin v. Mortg. Elec.

Registration Sys., Inc., 714 F.3d 355, 359 (6th Cir. 2013); Kim v. JP Morgan Chase Bank,

N.A., 493 Mich. 98, 113, 115–16 (2012).

Plaintiffs also request a stay of the motion to dismiss pending discovery under Rule

56(d) of the Federal Rules of Civil Procedure. Rule 56(d) addresses the need for additional

discovery when faced with a motion for summary judgment:

When Facts Are Unavailable to the Nonmovant. If a nonmovant shows

by affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery;

or

(3) issue any other appropriate order.

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Fed. R. Civ. P. 56(d). First, this rule applies to motions for summary judgment, not motions

to dismiss that attack the pleadings. Second, even if plaintiffs could take advantage of Rule

56(d), they have not offered an affidavit or declaration stating what discovery is needed. 

Instead, “Plaintiffs posit that this Honorable Court permit this matter to proceed to

discovery/trial and/or to a position where the parties can negotiate a settlement of this case

through the already stated Loan Modification process.” Pl’s. Resp. Br. at 9. Plaintiffs’

failure to specify the discovery needed, through affidavit or declaration, is fatal to their

request. See Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (“We, like

other reviewing courts, place great weight on the Rule 56[(d)] affidavit, believing that ‘[a]

party may not simply assert in its brief that discovery was necessary and thereby overturn

summary judgment when it failed to comply with the requirement . . . to set out reasons for

the need for discovery in an affidavit.’”). 

In sum, plaintiffs’ complaint is based on a misconception that they are contractually,

or otherwise, entitled to a permanent loan modification. As explained above, they are not. 

All of the claims in plaintiffs’ complaint require the court to conclude that plaintiffs were

lawfully entitled to a permanent loan modification. Plaintiffs offer no other justifications and

make no other arguments in support of their claims. As such, the complaint will be

dismissed for failure to state a claim upon which relief can be granted.3

3

 Many of plaintiffs’ claims fail for additional reasons. Count I entitled “Quiet Title”

and Count IV entitled “Specific Performance” fail to state a claim because injunctive

relief is a remedy, not a stand alone cause of action. Goryoka v. Quicken Loan, Inc.,

519 F. App’x 926, 929 (6th Cir. 2013). Likewise, Count V entitled “Breach Of Duty Of

Good Faith And Fair Dealing” is not a stand alone cause of action. Belle Isle Grill Corp.

v. City of Detroit, 666 N.W.2d 271 (2003); Ulrich v. Fed. Land Bank, 480 N.W.2d 910

(1991). Plaintiffs recognize this in their response and they do not provide any contrary

arguments, just boilerplate recitation of the law. In the promissory estoppel claim

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IV. CONCLUSION

For the reasons stated above, defendant’s motion to dismiss is GRANTED. This

case is DISMISSED.

IT IS SO ORDERED.

Dated: July 2, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

July 2, 2015, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

(Count VI), plaintiffs argue that defendant is estopped from denying the existence of the

TPP. But defendant is not denying the existence of the TPP. Defendant is simply

arguing that the TPP did not create a binding and enforceable contract for a permanent

mortgage loan modification. 

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