IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

ANTHONY G. TAYLOR, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 4:16-CV-52

)

JP MORGAN CHASE, CHASE HOME )

FINANCE, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the: (1) Report and

Recommendations of Magistrate Judge John E. Martin, filed on June

30, 2017 (DE #67); and (2) the Plaintiff’s Objection to

Magistrate’s Findings, Report and Recommendation, filed by pro se

Plaintiff, Anthony G. Taylor, on July 14, 2017 (DE #68). For the

reasons set forth below, the objection (DE #68) is OVERRULED and

the report and recommendation (DE #67) is ADOPTED. Accordingly,

Defendant’s Motion for Judgment on the Pleadings, filed by

Defendant, JPMorgan Chase Bank, N.A., on January 4, 2017 (DE #37),

is GRANTED, and the Clerk is ORDERED to DISMISS all claims against

Defendant, Chase, WITH PREJUDICE. Plaintiff’s Motion for Judgment

on the Pleadings, filed by pro se Plaintiff, Anthony G. Taylor, on

January 27, 2017 (DE #46), is DENIED AS MOOT. 
BACKGROUND

On May 30, 2017, this Court referred Defendant’s motion for

judgment on the pleadings (DE #37) and Plaintiff’s motion for

judgment on the pleadings (DE #46) to Magistrate Judge John Martin

for report and recommendation. (DE #60.)

On June 30, 2017, Magistrate Judge John Martin issued a Report

and Recommendation. (DE #67.) First, Judge Martin denied

Plaintiff’s motion to amend the complaint (DE #38). Judge Martin

also ruled upon Defendant’s motion for judgment on the pleadings 

(DE #37), finding that Taylor’s claims fail as a matter of law and

Chase was entitled to judgment on the pleadings. (DE #67.) 

Finally, Judge Martin ruled on Plaintiff’s motion for judgment on

the pleadings (DE #46), recommending it should be denied as moot

because Defendant’s motion for judgment on the pleadings was

successful. (DE #67.) The facts of the case are fully set forth

in Judge Martin’s opinion. 

Plaintiff filed a timely objection to the Magistrate Judge’s

rulings on July 14, 2017 (DE #68), and Chase filed a response on

July 27, 2017 (DE #69). As such, this matter if fully briefed and

ripe for adjudication. 

DISCUSSION

This Court’s review of the Magistrate Judge’s Report and

Recommendation is governed by 28 U.S.C. § 636(b)(1)(C). When a

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party makes objections to a magistrate judge’s recommendations,

“[t]he district court is required to conduct a de novo

determination of those portions of the magistrate judge’s report

and recommendations to which objections have been filed.” Goffman

v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). “[T]he court may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. §

636(b)(1)(C); see also Fed. R. Civ. P. 72(b). 

First, Plaintiff argues that the Magistrate Judge misapplied

the standard of review for the judgment on the pleadings. (DE #68

at 3.) To the contrary, the Magistrate Judge properly evaluated

the motions for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c) under the same standard as a motion to

dismiss for failure to state a claim under Rule 12(b)(6). 

A motion for judgment on the pleadings under Rule 12(c) “is

reviewed under the same standard as a motion to dismiss under

12(b); the motion is not granted unless it appears beyond doubt

that the plaintiff can prove no facts sufficient to support his

claim for relief, and the facts in the complaint are viewed in the

light most favorable to the non-moving party.” Flenner v. Sheahan,

107 F.3d 459, 461 (7th Cir. 1997); see also Thomason v. Nachtrieb,

888 F.2d 1202, 1204 (7th Cir. 1989). In order to survive a Rule

12(b)(6) motion, the complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face’.” Ashcroft v. Iqbal, 556 U.S. 662

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(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). All well-pleaded facts must be accepted as true, and all

reasonable inferences from those facts must be resolved in the

plaintiff’s favor. Pugh v. Tribune Co., 521 F.3d 686, 692 (7th

Cir. 2008). However, pleadings consisting of no more than mere

conclusions are not entitled to the assumption of truth. Iqbal,

556 U.S. at 678-79. This includes legal conclusions couched as

factual allegations, as well as “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements.” Id. at 678 (citing Twombly, 550 U.S. at 555). 

Nevertheless, the court must bear in mind that a pro se complaint

is entitled to liberal construction, “however inartfully pleaded.” 

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Just because Plaintiff included 77 allegations in his

complaint does not mean that he has properly pled the parties had

an agreement. (DE #68 at 4.) Indeed, the Magistrate Judge

analyzed in detail the breach of contract claim and properly

determined that no contract existed because, inter alia, no offer

was made by Chase to Taylor; Chase never returned an executed copy

of the TPP, and Taylor’s signature on the TPP letter did not bind

Chase to its terms. (DE #67 at 5-7.) As such, the Magistrate

Judge properly found that Plaintiff could not establish the

elements of a breach of contract claim. 

Second, Plaintiff contends the Magistrate Judge misapplied the

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rationale and holding in Baehl v. Bank of America, N.A., 3:12-cv00029-RLY-WGH, 2013 WL 1319635 (S.D. Ind. Mar. 29, 2013). (DE #68

at 6.) To the contrary, Baehl is directly on point. In that case,

like here, the plaintiffs executed and returned a TPP to the bank. 

Id. at *2-3. When the Baehl plaintiffs did not obtain a permanent

loan modification, they sued the bank for, among other claims,

breach of contract. Id. at *11. In dismissing the breach of

contract claim, the Baehl court held that the TPP was not an

enforceable contract, because the: 

language of the TPP is clear that the TPP was not

an offer by [the bank] to Plaintiffs which

Plaintiffs could accept simply by providing further

documentation. Instead, it was an invitation for

Plaintiffs to apply to the program, which required

Plaintiffs’ compliance to be considered for the

program.

Id. at *12. 

Taylor claims Baehl is factually distinguishable because the

plaintiffs in that case never provided all of the required

paperwork to the bank. While the complaint in this case alleges

that Taylor did submit, repeatedly, all of the necessary documents,

the complaint also includes assertions that Chase sent Taylor

letters on October 3, 2009, October 9, 2009, and December 3, 2009,

informing Taylor that his application was at risk because he had

not submitted the required documents. (DE #2 at ¶¶ 27, 28, 30.) 

The Court in Baehl reasoned that the plaintiff’s reliance on Wigod

was misplaced because:

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Although the same loan language is present in the

modification here, a critical distinction exists -

the servicer in Wigod countersigned the Plan and

mailed a copy back to the borrower with a letter

congratulating her on her approval for a trial

modification. Wigod, 673 F.3d at 562. The Court

further explained that these actions “communicated

to [the borrower] that she qualified for HAMP and

would receive a permanent ‘Loan Modification

Agreement’ after the trial period,” provided she

met the listed conditions. Id.

Baehl, 2013 WL 1319635, at *12. The Baehl court went on to find

that because the bank found the plaintiffs failed to provide

sufficient documentation necessary to complete the modification

review, and denied the application, “no contract was formed.” Id.

at *13. Taking Plaintiff’s allegations as true, as the Court must

at this stage of the proceedings, that he did provide all of the

necessary documentation, the Magistrate Judge still properly found

that there was no enforceable contract as “Chase never returned an

executed copy of the TPP, and Taylor’s signature on the TPP letter

did not bind Chase to its terms.” (DE #67 at 7.) 

In this case, like in Baehl, the language of the TPP is clear

that it is not an offer that Taylor could have accepted simply by

providing further documentation. Moreover, the conditional

language in the TPP that “if you qualify under the federal

government’s Home Affordable modification program and comply with

the terms of the Trial Period Plan, we will modify your mortgage

loan and you can avoid foreclosure” (DE #2 at 14) and “[i]f prior

to the Modification Effective date, (i) the Lender does not provide

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me a fully executed copy of this Plan and the Modification

Agreement; (ii) I have not made the Trial Period payments required

under Section 2 of this Plan; or (iii) the Lender determines that

my representations in Section 1 are no longer true and correct, the

Loan Documents will not be modified and this Plan will terminate”

(DE #2 at 20) and “the Trial Period Plan is the first step. Once

we are able to confirm your income and eligibility for the program,

we will finalize your modified loan terms and send you a loan

modification agreement . . . “ (DE #2 at 16) shows, like in Baehl,

that the TPP was not an offer that Plaintiff could accept simply by

providing further documentation. 

Taylor also contends the Magistrate failed to follow

controlling precedent in Wigod v. Wells Fargo Bank, N.A., 673 F.3d

547, 563 (7th Cir. 2012). (DE #68 at 7-9.) The Magistrate Judge

did address this case in his opinion, noting it was dissimilar

because in Wigod, the court found there was a breach of contract

claim where the bank countersigned the TPP Agreement and mailed a

copy back to the Plaintiff “with a letter congratulating her on her

approval for a trial modification. In so doing, [the bank]

communicated to Wigod that she qualified for HAMP and would receive

a permanent ‘Loan Modification Agreement’ after the trial period.” 

Wigod, 673 F.3d at 562. In contrast, here, Plaintiff does not

allege that Chase ever returned a countersigned TPP to Plaintiff. 

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The Court in Golbeck v. Johnson Blumberg & Assocs., LLC., No. 16-

cv-6788, 2017 WL 3070868, at *7 (N.D. Ill. July 19, 2017)

(citations omitted), recently similarly distinguished Wigod: 

But Wigod is no help to Plaintiff because the

defendant in Wigod “countersigned” the trial

payment plan “and mailed a copy to [plaintiff] with

a letter congratulating her on her approval for a

trial modification.” Wigod, 673 F.3d at 562. The

Seventh Circuit explained that “when [defendant]

executed the [trial period plan or ‘TPP’], its

terms included a unilateral offer to modify

[plaintiff's] loan conditioned on her compliance

with the stated terms of the bargain.” Id. Thus,

it was the lender's signature that made the TPP a

binding offer that could be accepted through

performance. That is because “when the promisor

conditions a promise on his own future action or

approval, there is no binding offer,” but “when the

promise is conditioned on the performance of some

act by the promisee or a third party, there can be

a valid offer.” Id. at 561.

In finding no contract was formed in that case where the bank did

not sign the contract and return it, the Golbeck court went on to

note that other courts around the country are in accord. See,

e.g., Pennington v. HSBC Bank USA, N.A., 493 Fed. Appx. 548, 554

(5th Cir. 2012) (“[Plaintiff’s] contract contained the . . .

language . . . that the TPP does not take effect until the borrower

and the lender sign it and the lender provides the borrower a

signed copy. . . . [Plaintiffs’] made regular TPP payments, but

they neither produced such a signed contract nor allege such a

signed contract exists. . . . The complaint therefore does not

demonstrate that the [Plaintiffs’] TPP ever took effect, so there

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could be no contract for the bank to breach.”); McGann v. PNC Bank,

Nat. Ass’n, No. 11-cv-06894, 2013 WL 1337204, at *6 (N.D. Ill. Mar.

29, 2013) (“Here, the plain language of the TPP Agreement states

[defendant] is not obligated to provide a HAMP loan modification

until both parties execute the TPP Agreement . . . Pursuant to the

TPP Agreement’s own terms, [defendant’s] failure to sign the

agreement evidences that it had no obligation to offer [plaintiff]

a HAMP loan modification.”); Avevedo v. CitiMortgage, Inc., No. 11

C 4877, 2012 WL 3134222, at *8 (N.D. Ill. July 25, 2012) (“The

court agrees with [defendant] that the fact that it did not execute

the TTP associated with the plaintiffs’ loan and return that

document to them is fatal to the plaintiffs’ breach of contract

claim.”); Rummell v. Vantium Capital, Inc., No. 12-10952, 2012 WL

2564846, at *6 (E.D. Mich. July 2, 2012) (“[T]he TPP is only a

proposal, and it does not create a binding contract when only one

party has signed it.”); Lonberg v. Freddie Mac, 776 F.Supp.2d 1202,

1209 (D. Or. 2011) (“[E]very court that has reviewed this issue has

unanimously agreed that a defendant’s failure to provide a

permanent loan modification solely on the basis of the existence of

a TPP does not sufficiently state a breach of contract claim.”). 

This Court concurs with the logic in Golbeck and the cases

cited therein, finding that because Chase was required to execute

the TPP but did not, no contract was formed. Therefore, there is

no viable breach of contract claim. See, e.g., Senter v. JPMorgan

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Chase Bank, N.A., 810 F.Supp.2d 1339, 1357 (S.D. Fla. 2011)

(holding “the TPP Agreements are not agreements to provide the

Plaintiffs with a loan at a specified date, but rather, an

agreement governing obligations of both the Plaintiffs and the

Defendants over a trial period after which the Defendants may

extend a separate permanent loan modification should they determine

that the Plaintiffs qualify.”); Bourdelais v. JPMorgan Chase Bank,

N.A., No. 3:10 cv 670-HEH, 2011 WL 1306311, at *5 (E.D. Va. Apr. 1,

2011). 

While it is true that the dicta in Wigod states that a reading

that the obligation to send a permanent Modification Agreement only

if and when it actually sent one would render the agreement

illusory, it also noted that a more natural interpretation would be

to read it that the bank had an “obligation to offer Wigod a

permanent modification once she satisfied all her obligations under

the agreement.” Wigod, 673 F.3d at 563 (emphasis in original). In

that case, “[o]nce [the bank] signed the TPP Agreement and returned

it to Wigod, an objectively reasonable person would construe it as

an offer to provide a permanent modification agreement if she

fulfilled its conditions.” Id. In this case, because Chase never

signed and returned the agreement, there was no offer, and no

contract was ever created. 

Next, Taylor contends the Magistrate Judge’s finding “that

Chase did not agree to a timely decision is erroneous and contrary”

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to law. (DE #68 at 10-12.) However, the Magistrate Judge properly

determined that the express language of the TPP document does not

specify the exact timing of the modification decision. (DE #67 at

7.) The TPP provides that, “[i]t may take up to 30 days for us to

receive and review your documents. We will process your

modification request as quickly as possible. Please note, however,

that your modification will not be effective unless you meet all of

the applicable conditions.” Id. The TPP does not promise a

decision within 30 days, or that Taylor would receive any documents

relating to the decision prior to the Modification Effective Date. 

As such, this case is different than Wigod, where a counter-signed

TPP was returned to Plaintiff, and it is also factually

distinguishable from the other non-controlling cases from other

circuits cited by Taylor. See Young v. Wells Fargo Bank, N.A., 717

F.3d 224, 228-35 (1st Cir. 2013) (holding mortgagor stated a claim

under Massachusetts contract law where Plaintiff was incorrectly

sent a denial letter, then eventually received a permanent loan

modification, but for a higher payment); Corvello v. Wells Fargo

Bank, N.A., 728 F.3d 878, 882 (9th Cir. 2013) (the bank never told

the plaintiffs they were ineligible for a modification), West v.

JPMorgan Chase Bank, N.A., 214 Cal. App. 4th 780 (4th Dist. 2013)

(the defendant agreed there was a contract and the only issue was

whether it was breached). In contrast, in this case, the parties

dispute whether a contract was made, and Chase did ultimately tell

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Taylor he did not satisfy the income requirements for a HAMP loan

modification, resulting in a denial of his modification request. 

(DE #34-5.)

Taylor also argues that the Magistrate Judge’s finding that he

failed to state a claim for breach of the implied covenant of good

faith and fair dealing is erroneous. (DE #68 at 12-13.) However,

Taylor does not contest the well settled law cited by Magistrate

Judge Martin that there is no separate cause of action in this case

for breach of an implied covenant of good faith and fair dealing:

the alleged contract is not for sale of goods, governed by the

Uniform Commercial Code, it does not involve a contract for

insurance, and no fiduciary or other special relationship is

created by a mortgage. Baehl, 2013 WL 1319635, at *9; see also Ray

Skillman Oldsmobile & GMC Truck, Inc. v. Gen. Motors Corp., No.

1:05-CV-0204-DFH-WTL, 2006 WL 694561, at *6 (S.D. Ind. Mar. 14,

2006) (“Neither Indiana nor Michigan recognizes an independent tort

action for breach of an implied contractual covenant of good

faith.”). Taylor’s insistence that he included allegations in his

complaint in paragraphs 20-32 to allege this cause of action (DE

#68 at 13) does not save these claims as they are not recognized as

an independent tort. 

Taylor next contends the Magistrate Judge’s finding that

“Chase only mishandled the HAMP process is erroneous.” (DE #67 at

9; DE #68 at 13.) This misconstrues the Magistrate Judge’s proper

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finding, which was in finding the proposed amendment futile for

intentional and negligent infliction of emotional distress, he

noted that even if Chase had mishandled the process, that would

still not give rise to the necessary level of being atrocious and

utterly intolerable for these claims. See Jaffri v. JPMorgan Chase

Bank, N.A., 26 N.E.3d 635, 640 (Ind. Ct. App. 2015). 

Finally, Taylor argues the Magistrate Judge’s finding is

erroneous in recommending the denial of Plaintiff’s motion for

judgment on the pleadings as moot. (DE #68 at 14.) The parties

disagree as to what statute of limitations is applicable for the

breach of contract and promissory estoppel claims. However,

because the Magistrate Judge properly found that Taylor has not

stated a claim for breach of contract or promissory estoppel, and

amendment of the claims would be futile, the questions of whether

Taylor brought his claims within the applicable statute of

limitations is moot. 

CONCLUSION

For the reasons set forth below, the objection (DE #68) is

OVERRULED and the report and recommendation (DE #67) is ADOPTED. 

Accordingly, Defendant’s Motion for Judgment on the Pleadings,

filed by Defendant, JPMorgan Chase Bank, N.A., on January 4, 2017

(DE #37), is GRANTED, and the Clerk is ORDERED to DISMISS all

claims against Defendant, Chase, WITH PREJUDICE. Plaintiff’s

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Motion for Judgment on the Pleadings, filed by pro se Plaintiff,

Anthony G. Taylor, on January 27, 2017 (DE #46), is DENIED AS MOOT.

DATED: August 30, 2017 /s/ RUDY LOZANO, Judge

United States District Court

 

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