### REVISED JANUARY 23, 2015

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 50157

LAUREN PETERS,

Plaintiff

- Appellant

v. JP MORGAN CHASE BANK, N.A., successor by merger to Chase Home Finance, L.L.C.,

Defendant

- Appellee

Appeal from the United States District Court for the Western District of Texas USDC No. 1:12

- CV

- 637

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON , Circuit Judges

. PER CURIAM: *

Plaintiff

- Appellant Lauren Peters (“Peters”) appeals the district court’s grant of Defendant

- Appellee J.P. Morgan Chase Bank’ s (“Chase”) motion to dismiss. Because the district court erred in holding that Peters did not plead

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 23, 2015

Lyle W. Cayce Clerk Case: 13-50157 Document: 00512913661 Page: 1 Date Filed: 01/23/2015No. 13

- 50157

sufficient facts to state a breach of contract claim against Chase , we REVERSE in part and REMAND.

FACTS AND PROCEEDING S A. Fact ual Background On or about March 28, 1997 , Peters executed a promissory note and delivered a deed of trust for the residential property located at 6606 Ro bbie Creek Cove, A ustin, Texas. The deed was for $116,400. Uniform covenant 2 of the deed required Peters to pay pr operty taxes and hazard or property insurance, among other things, for the property. These payments were to be held by the lender as “escrow items.” In the event Peters failed to pay , the lender could pay the amount required to prote ct the value of the property; these expenditures would be added to Peters’s debt. Uniform covenant 4 of the deed stated: “Borrower shall pay all taxes, assessments, charges, fi nes and impositions attributable to the Property [as set forth in covenant 2] ” or “ Borrower shall pay them on time directly to the person owed payment.” If Peters did pay taxes directly , she was required to provide receipts to Chase

. Uniform covenant 5 set forth similar requirements for the payment of hazard or property insurance. The “Planned Unit Development Rider,” however, provided that if Peters’s owners ’ association ma intained an acceptable hazard insurance policy , then Peters n eed not send hazard insurance premiums as required in covenant 2 and w ould be considered in compliance with covenant 5. Peters paid her mortgage payment s to Chase and her property tax and insurance directly until 2009. It is unclear whether Peters provi ded the

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required receipts to Chase during this time

. Without Peters’s knowledge, and for unclear reasons, beginning in 2002, Chase created an escrow account that also paid insurance and property tax es for the property. Per the terms of the
deed , Chase fi rst appl ied Peters’s mortgage payments to the escrow account to cover insurance and tax costs. The remainder was then applied to the mortgage obligation. This resulted in double payment of tax a nd insurance
liabilities and underpayment of Peters’s mortga ge obligation. In 2009 Chase move d to foreclose on the property. Peters investigated the reason for the foreclosure and discovered the double tax and insurance payments. Ultimately, Peters entered into a temporary loan modification agreement and the foreclosure was cancelled. Peters continued directly paying her taxes and insurance and sending mortgage premiums to Chase during 2010 and 2011. Chase, however , refused Peters’s payments due to the “status of account.” Peters asked Chase for an accounting of her account. Chase did not reply. In May 2012 Peters was again notified that th e property would be foreclosed upon . At this point , Chase sent Peters an accounting which stated that she owed $50,000. 1 Peters supplemented her pleadings with a “Detailed Transaction History” showing that she made mortgage payments to Chase from December 10, 2007 to February 10, 2010 . She also attached a letter from Chase , dated December 15, 2010, returning a payment “[d]ue to status of account.” Peters alleges that Chase refused $21,352.55 in payment s . She also filed a letter from the United Services Automobile Association (USAA) confirming her homeowner’s insurance for 2007

– 20 09.

1 Peters contests this figure and claims that she owe s approximately $31,000, half of which is related to unpaid payments and half to Chase’s alleged misallocations

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B. Procedural Background Peters filed her original complaint in the 345th Judicial District of Travis County, Texas, on June 4, 2012. Chase filed a notice of removal to federal court on July 13, 2012 , pursuant to 28 U.S.C. §§ 1441, 14 46. Chase then filed a motion to dismiss for failure to state a claim on July 20, 2012. Chase argued that Peters “[did] not alle ge any specific cause of action . . . that would allow for recovery of damages.” Peters responded on August 15 with a motion to amend the pleadings

. The district court, over Chase’s objection, granted Peters’s motion to amend on August 23, 2012. Peters’s amended complaint sets fo rth the facts described above. Peters alleges several causes of action. Her main argument is that Chase lack ed authority to foreclose because the mortgage was no t properly assigned. This argument , however, is not before the court. 2 Peters also alleges breach of contract, claiming that Chase “ overcharged [ her ] and has breached its con tract by the force placement of insurance and taxes not permitted by the deed of trust and note.” Peters makes two other claims: first , that she ple a d ed a viable action seeking a declar atory judgment of the amount due on her mortgage pursuant to the Feder al Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. ; and, second, that she ple a d ed a viable cause of action for an accounting. Chase moved to dismiss the first amended complaint for failing to state a plausible claim for relief

. Peters responded , in relevant part, that she sufficiently pleaded a breach of contract claim because t he amended complaint

2 Peters ’s principal argument at the district court was that Chase did not show it was the owner or holder of the note. Peters admits that thi s argument is foreclosed by Martins v. BAC Home Loan Servicing, L.P. , 722 F.3d 249 (5th Cir. 2013) , and raises it on appeal on ly to preserve the argument. 4 Case: 13-50157 Document: 00512913661 Page: 4 Date Filed: 01/23/2015No. 13

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alleged that Chase misallocated Peters’s payments, which made it appear that she was not paying her mortgage, which led to the foreclosure. Chase replied that Peters cannot assert a breach of contract claim when she admits to being $15,000 in arrears on her payments, in breach of the contract. On December 17, 2012 the district court granted Chase’s motion to dismiss. The d istrict court described Peters’s amended complaint as offering “a slew of causes of action” but only two factual bases: “(1) Chase overstates Peters’s amount of arrearage, and (2) Chase lacks authority to foreclose . . . .” The court further s tated , “Peters admits she owes over $30,000 to Chase, and half of that is from missed payments. ” The c ourt concluded that because Peters was i n arrears on her note and offered no other “basis in law or equity showing
she is entitled to relief,” Chase was “entitled to foreclose under the Dee d of Trust.” The district court’s opinion, however, principally addressed Peters’s argument that Chase lacked authority to foreclose , and offered no substantive analysis of the breach of contract, declaratory judgment, or accounting claims

. 3
Peters filed a motion for a new trial and rehearing on January 14, 2013.
In this motion , Peters noted several factual errors made by the court. As to breach of contract , Peters stated that she did not admit that she is in default, that she never refused to make payments, and that she offered to tender the
correct amount. The court denied her motion on January 25, 2013. She filed this timely appeal.

STANDARD OF REVIEW

3 The order categorizes Peters’s claims as “standing,” “authority to foreclose,” “ quiet title,” and “arrearage amount.” There is no explicit mention of Peters’s breach of contract claim. The district court suggested that it dismissed Peters’s contr act claim because “Peters admit s she owes over $30,000 to Chase , ” but did not elaborate. 5 Case: 13-50157 Document: 00512913661 Page: 5 Date Filed: 01/23/2015No. 13

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Dismissal for failure to state a claim is reviewed de novo, accepting all well

- pleaded fact s as true and viewing those facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen , 681 F.3d 215, 219 (5th Cir. 2012). “To survive a motion to dismiss, a 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, 678 (2009) (internal quotation marks and citation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption tha t all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and footnote omitted).

DISCUSSION Peters’s breach of contract claim was sufficiently pleaded to overcome Chase’s motion to dismiss for failure to state a claim. As a result, Peters’s

cause of action seeking a declaration of the amount due on her mortgage has also been sufficiently pleaded.
It appears that the district cou rt dismissed Peters’s breach of contract
claim because Peters was in arrears t o Chase. R. at 229 (“Peters admits she owes over $30,000 to Chase ” ). The district court is correct, as a general principle, that an individual in breach cannot bring a cause of action for breach against another contracting party. See , e.g. , Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 465 (5th Cir. 2003) (holding that, “[u]nder Texas Law, the elements of a breach of contract claim” include “ performance by the plaintiff ” )

. There are, however, possible exceptions to this rule , which are sufficiently raised by Peters’s complaint to warrant remanding the case.

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I f Chase’s alleged breach

— the misapplication of Peters’s payments to an
escrow account , resulting in de fault

— constituted a material breach , then Peters may not have be en required to continu e to comply with the contract. “‘[W] hen one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform.’” X Technologies, Inc. v. Marvin Test Sys., Inc. , 719 F.3d 406, 413 (5th Cir. 2013) (quoting Hernandez v. Gulf Grp. Lloyds, 875 S.W.2d 691, 692 (Tex. 1994) )

. Since Peters alleged that Chase breached what could be considered a material
term , she sufficiently raised the possibility that she was excused from continuing to pay on the mortgage. 4 Though this court has not directly addressed these circumstances , in comparable circumstances the Seventh Circuit reversed the district court’s grant of summary judgment. See Catalan v. GMAC Mortg. Corp. , 629 F.3d 676, 691

– 92 (7th Cir. 2011)

. Similarly, Peters could argue that Chase’s rejection of her mortgage payments , even if not a material breach, rendered performance impossible and that, as a resu lt, any subsequent breach does not bar her claim. See , e.g. , Miller v. Baum, 400 F.2d 176, 178 (5th Cir. 1968). Accordingly , we reverse and remand fo r further factual development and consideration of Peters’s breach of contract claim

. See Allied Elevator, Inc. v. E. Texas State Bank of Buna , 965 F.2d 34, 38 (5th Cir. 1992) ( reversing summary judgment and remanding to determine if an allegedly breached term

— which was not considered by the district cour t

— was materi al, excusing plaintiffs from paying the amount due)

.

4 “Whether a breach is material is a question of fact.” X Technologies, Inc. , 719 F.3d at 414. We, therefore, reach no conclusion about whether Chase breached the contract or whether the allegedly breached term was material.

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That Peters has sufficiently plead ed a breach of contract cause of action also affects her declaratory judgment and accounting claims. The district court

may have dismissed Peters’s declaratory judgment claim on the grounds that
there was no controversy between the parties because Peters had breached the deed and thus did not have a “substan tial and continuing controversy, ” s ee Bauer v. Texas , 341 F.3d 3 5 2 , 358 (5th Cir. 2003) (citations omitted) , as required by 28 U.S.C. § 2201. As di scussed above, however, Peters has alleged that there is a breach of contract claim. This claim can “presently be litigated and decided” based on the facts before the district court and therefore states a claim for declaratory judgment. Brown & Root, Inc . v. Big Rock Corp., 383 F.2d 662, 665 (5th Cir. 1967). Further, Chase is incorrect that Peters has not properly alleged that the available remedy will not redress the injury: Peters pleaded that she could prevent foreclosure if a declaratory judgment wer e issued

. R. at 208 (“Plaintiff also stands ready to tender that payment . . . .”). Lastly, the district court’s dismissal of Peters’s request for an accounting as a separate equitable cause of action is affirmed

. Peters has not shown that the requested accounting is so “‘ complex that adequate relief cannot be obtained by law. ’ ” Watson v. Citimortgage, Inc. , 814 F. Supp. 2d 726, 737 (E.D. Tex. 2011) ( quoting Brown v. Cooley Enters., Inc., No. 3:11

– CV

– 0124

– D, 2011 WL 2200605, at *1 (N.D. Tex. Jun e 7, 2011) )

. But, the district court’s dismissal of Peters’s accounting claim as a remedy is reversed

. The determination of whether an accounting is an appropriate remedy should be made if Chase is found to be liable under the breach of contract claim.

CONCLUSION

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For the foregoing reasons, we REVERSE the district court’s dismissal of Peters’s breach of contract claim and declaratory judgment claim

. We REMAND the case to the district court for further proceedings.

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