NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1195n.06 No. 11-2444 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MARI L YN HOU STON, P laintif f-App ellant,

v. U.S. BAN K HOME MORTGA GE WI SCONSI

N SERVI CI

NG, a w holly owned subsidiary of U.S. BA NK, NA, and GARY HEI DEL , Ex ecutive D irec tor of the Michig an State Housing Deve lopment Authority , Defendan ts-Appellees.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Before: M OORE an d COLE , Circuit Judges, and ROS E, District Judge. * KA REN NELSO N MOORE, Circuit Judge. Plaintiff-Appellant M ar i l y n Houston ch alleng es the g rant of summary judgme nt to Def endants-A

ppellees U.S. Ba

nk Home Mortg ag e Wis consin Servicing (“U S Bank” ) and G ary Heidel, the Ex ecutive Direc tor of t he Mi chig an S tate Ho u s i n g Deve lopment Authority (“MSHDA” ). Although we conclude that the district court wa s

corr ect in finding that US Ba nk’s admitted violation of the Real Estate Settlement Proce dures Ac t (“RESPA”) did not cause Houston’s fore closure, we REVERSE and REMAN D o n th e n arr ow issue

The Honora

ble Thomas M. Rose, United States District J udg e for the Southern District of * Ohio, sitti ng by

desig nation.No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al.

o f what damag es, if any , arose out of US Ba nk’s RESP A violation. We AF F IRM the gra n t o f summary judgme nt on all other counts.

I. BACKG ROUND & P ROCEDURE Houston secur ed a mortg ag e to purcha se a home in Aug ust 2001. R. 17-3 (Mortg ag e) (Pag e I D #286–92). I n November 2003, Houston filed a Chapter 1 3 petition in the United States Ba nkruptcy Court f

or the Easter

n District of Michig an. R. 17- 4 (Trustee Report) (Pag e I D #294). By then MSHDA owned Houston’s mortg ag e, and MSHDA filed claims for both the underly ing loan and for $2,542.85 in prepe tition arr ear a g e . T h e b a n kruptcy court confirme d Houston’s plan in Marc h 2004. Id. The Trustee paid MSHDA’s arr ear ag e claim in its entirety , and made monthly pay ments

on the m o rt gag e. R. 30-3 (Case Over view at 8–10) (Pag e I D #433–35). The Trustee direc ted mortg ag e pay

ments to US Bank whe n it took over servic ing H ouston’s loan. On May 27, 2009, the Trustee filed notice with the bankruptc y court confirming that Houston “is in a ll r espec ts c urre nt” with r eg ard to “ any secur ed cla im that c ontinues bey ond the term of the plan.” R. 5-8 (Trustee Notice at 1–2) (Pag e I D #121–22). The notice was also sent to Houston, and instructed her to “[i] mmediately beg in making the require d pay ments on secur ed debt obliga tions.” Id. at 1 (Pag e I D #121). The bankruptc y court order ed Houston’s discharg e on J uly 7, 2009. R. 17- 1

The full timeline surrounding the bankruptc y proce eding s is as follows. The Trustee made 1 its final pay

ment to US Ba

nk on Marc h 4, 2009. R. 30-3 (Case Over view at 9) (Pag e I D #434). The Trustee identifies Marc h 4, 2009 as the propose d closing date of the pl an, id. at 1 (P ag e I D #426), but Marc h 11, 2009 as the actua l date of completion. R. 17-1 (Trustee Report) (Pag e I D #294). The au tomatic deduction from Houston’s bank acc ount ended on Marc h 24, 2009, and the T ru s t ee ref unded Houston $1,252.30 on April 23, 2009. R. 30-3 (Case Over view at 6–7) (Pag e I D #431–32). 2No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al.

6 (Orde r) (Pag e I D # 300–01). I t is uncontested that Houston did not beg in to make mortg ag e pay ments, and she has m ade no pa y ments since May

2009. See R. 30-4 (Pay

ment History at 1–4) (Pag e I D #446–49). US Ba nk’s statement to Houston, dated J uly 17, 20 0 9 , i n d i cate d that she owed a curr ent pay ment of $742.09, and also $2,226.27 in past-due pay ments and $15.74 in late char g es. R. 17-7 2 (US Ba nk Statement) (Page I D #303). Houston s t at es t hat US Ba nk’s represe ntatives “would not addre ss [her] pay

ment amount dispute,” but informed her that she owed the alleg ed amount. R. 33-3 (Houston Aff. ¶ 6) (Pag e I D #543). On Aug ust, 19, 2009, Houston sent a c ertified le tter disputing “the amount that is ow ed acc ording to the [J uly 2009] Monthly Billing Statement,” and reque sting “informa tion about the fee s, costs and escr ow acc ounting on [her] loan.” R. 17-8 (L etter) (Pag e I D #305–06). Houston’s letter constituted a qualified written reque st (“Q WR ”), which under RESP A

o b l i g ated US Ba

nk to acknow ledg e rec eipt within twenty day s and, among other things , t o investiga te and addre s s h er request withi n six ty day s. 12 U.S.C. § 2605(e)

. US Ba nk admits that it failed to respond. A

ppellee B r. at 15. US Ba nk attempted unsucce ssfully to contac t Houston by phone, by mail in Marc h 2010, and ag ain by mail in April 2010 reg arding her outstanding pay ment s . R

. 3 0 -6 –8 (US Ba nk Corresponde nces) (Pag e I D #472–80). On J une 3, 2010, US Ba nk informed Houston that it would

T h e past-due amount of $2,226.27 is equal to three pay ments of $742.09. On the rec ord 2 prese nted, neither

Houston nor the Trustee made monthly pay ments of $742.09 for A

pril, May , or J une. US Ba

nk claims in its summary judgme nt briefs to the district court that these non-pay ments acc ount for the pa st-due amount. See R. 30 (Mot. for Summ. J . at 3–4) (Pag e I D #412–13). 3No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al.

commence fore closure proce eding s. R. 30-9 (F orec losure L etter) (Pag e I D #482). Due notice was published and provided to Houston. R. 30-10 (Mer ithew Aff.) (Pag e I D #484); R. 30-11 (B lanche tte Aff.) (Pag e I D #486). After sending her QWR, Houston did not contac t US Ba nk until she filed this suit on Aug ust 16, 2010—two day s befor e the schedule d fore closure sale—in Way ne County Circuit Court. R. 1 (Removal Notice at 1) (Pag e I D #1). Howeve r, beca use Houston did not file a motion seeking to stay t h e fore closure proce eding s, the house was sold at auction to MSHDA. R. 30-13 (F orec losure Sale at 3) (Pag e I D # 492). Nor did Houston exercise her statutory rig ht to rede em within the six months following a f orec losure sale

. See M I C H . C O M P . L A W S § 600.3240 (2012). This suit was remove d to the U. S

. Di strict Court for the Easter n District of Michig an in September 2010. On May 2, 2011, the district court dismiss ed five of Houston’s claims, and allowed her RESP A and wr o n gfu l -for eclosure claims ag ainst US Ba nk to proce ed. Houston v. U.S. Bank Home Mortg. W

is. Servic ing (

Houst o n I

), No. 10-13780, 2011 WL 1641898 (E.D. Mich. May 2, 2011) (unpublished opinion). Houston later amende d her complaint to include a brea ch-of -contra ct claim ag ainst MSHDA. On October 14, 2011, the district c ourt g rante d summary judgme nt to US Ba nk and MSHDA on all three rema ining claims. Houston v. U.S. Bank Home Mortg. W is. Servic ing ( Houston II

), No. 10-13780, 2011 WL 4905533 (E.D. Mich. Oct. 14, 2011) (unpublished opinion). Houston timely

appea led. We revie w de novo a g rant of summary judgme nt. Med. Mut. of Ohio v. K. Amalia Enters. Inc. , 548 F.3 d 3 8 3 , 389 (6th Cir. 2008). Summary judgme nt is appropr iate wher e there exis ts no g enuine issue of materia l fac t and the moving party is entitled to judgme nt as a matter of law. F E D .
4No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al.

R. C I V . P. 56(a)

. We consider “‘w hether the evidenc e prese nts a sufficie nt disag ree ment to require submissi on to a jury

or whether it is so one-sided that one party must pre vail as a matter of law.’ ” W exle r v. W

hi te’s Fine Furniture, Inc. , 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52 (1986))

. I n doing so, we dr aw reasona ble infere nces in favor of the non-movant when deter mining whether there is a “g enuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88 (1986) (citations omitted). II. RESPA CLAIM RESP A allows an individual to rec over f or a violation of its terms as f ollows: W h o ever fails to comply with any provision of this section shall be liabl e t o t h e borrowe r for

eac h such fa ilure in the following amounts: (1)

. . . I n the case of any action by an individual, an amount equal to the sum of— (A) any actual damages to the borrower as a result of the failure ; and (B ) any additional damag es, as the court may allow, in the case of a pattern or prac tice of noncompliance with the require ments of this section, in an amount not to exceed $1,000. § 2605(f) (empha sis added)

. Houston arg ues t hat US Ba nk violated § 2605(e) of R ESPA when it failed to acknow ledg e her Aug ust 2009 QWR or to corr ect its rec ords acc ording ly (see infra note 4);

ac co rding to Houston, these failure s by US Ba nk resulted in an “illeg al fore closure base d o n an

err oneous debt, the attempted wrong ful sale of her proper ty , alo n g wi t h financ ial damag es and emotional distress.” R. 16 (Am. Compl. ¶ 33) (Pag e I D #273). US B ank did not fulfill any of its 3

I t is not clea

r whether Houston still seeks to set aside her fore closure, or whether she seeks 3 mere ly compensa tory damag es for the sale. RESP A permi ts a ctual damag es, plus costs and attorney s 5No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al. § 2605(e) duties. As a result, the district court focuse d i t s attention on whether Houston’s 4 fore closure was a result of US Ba nk’s RESP A violation. The district found that it was not—it held that Houston’s continued non-pay ment of her mortg ag e, rathe r than US Ba nk’s violation, cause d her fore closure. Houston II

, 2011 WL 4905533, at *5–6. There is no g enuine dispute that Houston owed monthly mortg ag e pay ments to US Ba

nk, and that she made no pay

ments from May 2009 forwa rd. The Trustee instructed Houston in May 2009
to “[i] mmediately beg in making the require d pay ments on secur ed debt obliga tions.” R. 5-8 (Trustee Notice at 1) (Pag e I D #121). Even acc epting as true her alleg ation that the Trustee ’s order was not eff ective befor e the J uly 2009 discharg e—a claim t h at i s at odds with the plain text of the order itself—it rema ins undisputed that Houston made no mortg ag e pay ments from Jul y

2009 forwa

rd. Nor does Housto n claim t hat R ESPA excuses individuals from making mortgag e pay ments while

awa iting a QWR respons e. T h is evidenc e is sufficie nt to conclude that Houston’s intervening conduct sever ed whateve r causa l chain may have connec ted US Ba nk’s violation to her fore closure. Ag ainst this conclusion, Houston offe rs two explanations as t o h o w US Ba nk’s RESP A violation c aused her fore closure. First, she claims that, ac cording to § 2605(k), US B ank’s failure

fee s, as a reme dy in this instance, but it does not contemplate that a court could set aside a sale. See § 2605(f) . Houston also seeks punitive dama g es, which a re not identified unde r RESPA. See id

. Sectio n 2 6 0 5 (e ) require s, upon rec eiving a QWR, that a loan service r “shall provide a 4 written response acknow ledg ing rec eipt of the corr espondenc e within 20 day s.” § 2605(e) (1)( A). Fur ther, a loan service r shall, within six ty day s of rec eiving a QWR, “make appropr iate corr ections in the acc ount of the borrowe r,” “tra nsmit to the borrowe r a written notification of such corr ection,” and “provide the borrowe r with a written explanation or clar ification” that includes details reg arding its investiga tion and contac t information for one of its employ ees or repr esenta tives. § 2605(e) (2). 6No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al.

to respond to her QWR is prohibited “whe n this response could potentially avoid fore closure.” Appellant Br

. at 14. We do not c onsider this arg ument beca use § 2605(k) is not y et eff ective law. Section 2605(k) was cre ated in Title XI V of the Dodd-F rank Wall Street Reform and Consumer Protection Act. See Pub. L

. No. 111-203 , § 1463, 124 Stat. 1376, 2182–84 (2010) [hereinaf ter Dodd-F rank A ct]. The eff ective da te for T itle XI V is determined a s follows: (2) EFF ECTI VE DATE ESTABL I SHED BY RUL E. Ex cept as provided in para g raph (3), a section, or provision there of, of this title shall take eff

ect on the date on which the fi n al re gu lations implementing suc h section, or pr ovision, take eff ect. (3) EFF ECTI VE DATE. A section of this title for which reg ulations have not been issued on the date that i s 1 8 months afte r the desig nated tra

nsfer date sha ll take ef

fec t on such date. Dodd-F rank Act § 1400(c) , 124 Stat. at 2136. J uly 21, 2011 marks the desig nated transfe r date for Title XI V. Desig nated Transf er Date, 75 Fe d. Reg

. 57252-02 (Sept. 20, 2010). Acc ording ly , § 2605(k) become s eff

ectiv e o n t h e ea rl i er of J anuar y 21, 2013 or the date of a final reg ulation implementing it. No final reg ulation has y et implemented § 2605(k). Cf. Bates v. JPMorgan Chase Bank, N.A. , No. 4:12-cv-43, 2012 WL 3727534, at *4 (M.D. Ga. Aug

. 27, 2012) (dismissing a claim broug ht under § 2605(k) beca use the statute wa s not y et ef fec tive). Second, Houston asser

ts that, had she “discove red that there was an arr ear ag e, . . . she would have been able to avail herse lf to [si c] HUD counseling and intervention on her behalf to preve nt a fore closure.” Appellant Br. at 1 4 –15. Howeve r, this claim does not addre ss the arg ument that Houston’s intervening non-pay ments wer e sufficie nt to cause her fore closure even absent the

arr ear ag e; her statement takes as a premise that the disputed arr ear ag e cause d the fore closure. Nor

7No. 11-2444

Houston v. U.S. Bank

Home M ortg. W is. Servicing et al.

is it clea r how this assertion satisfies ca usation on its own terms. Houston impl ies that she would have soug ht HUD counseling and intervention, but that US Ba nk’s violation somehow prec luded her from doing so. But she does not sug g est that she actua lly soug ht counseling , and she offe rs nothing

5
to sug g est that counseling was unavailable in the abse nce of a response from US Ba nk. Nor does Houston explain how she h ad n o t “discove red” the arr ear ag e when it appea red on her J uly 2009
statement and it was confirme d in a phone call by US Ba nk’s repr esenta

tives, even if she contested its acc urac y . We conclude th at there is no g enuine disput e that, by virtue of Houston’s continued non-pay ment of undisputed debts, US Ba nk’s RESPA viol ation did not result in her for eclosure

. Neve rtheless, the district court was too quick to g rant summary judgme nt ag ainst the entirety of Houston’s RESP A claim. There is littl e dis cussion in the court’s order s below of the nature of US Ba nk’s RESP A violation, or of what damag es—outside of forecl o s u re

— m ay have resulted.

At best, Houston’s arg

ument could b e i n t er p reted to sug g est that she did not know what 5 amount to pay , and would have made pay ments to US Ba

nk had she kn o wn what to pay . This interpre tation, howeve r, runs into problems. First, US Ba n k did confirm the pay ments owed by Houston over the phone in J uly 2009, althoug h she disputes its acc urac y ; it is not clea r what Houston expects would have ha

ppened if US Ba nk had rec onfirmed the arr ear ag e in r esponse to her QWR. Second, it does not appea

r that Houston contests the monthly pay ments g oing forwa

rd—her dispute in litigation has been with the arr ear ag e identified on her J uly 2009 s tatement. I n ear lier briefing Houston sug g ested that this obliga tion, but not the arr ear ag e, was acc urate

. See R.7 (Resp. to Mot. to Dismiss at 1 0 ) (Pag e I D #135) (“Plaintiff’s pay ment was incre ased from $ 742.09 to $2,999.84.”). Moreove r, Houston does not dispute that US Ba nk informed her and t h e Trustee i n Fe bruar y 2009 that monthly pay

ments would be for $742.09, or that US Ba nk provided a brea

kdown of what that pay

ment would cover . R. 5-6 (Notice of Adjustment) (Pag e I D #110–16); see also R. 5-7 (Trustee ’s Notice) (Pag e I D #118). Houston comes closest in her QWR to disputing specific ally the $742.09 amount when she reque sted “an explanation of how the am o u n t d u e on the Monthly Billing Statement ($742.09) was calc ulated.” R. 17-8 (L etter) (Pag e I D #305). But requesting an explanation for how a pay ment amount is calc ulated does not amount to disputing the prese nt pay ment due. 8No. 11-2444

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Home M ortg. W is. Servicing et al.

Houston also alleg es financ ial and emotional damag es arising from the violation, which the district court did not addre ss. S h e has averre d that she suffere d “stress, mental ang uish, embar rassment, 6 and humiliation,” beca

use of US Ba

nk’s violation, and not mere ly beca use of the fore closure. R. 33- 3 (Houston Aff. ¶ 14) (Pag e I D #544). We conclude that there is a g enuine issue of materia l fac t as to whether Houston suffe red damag es as a result of US Ba nk’s RESP A violation. Acc ording ly , we

rema nd for a deter m i n at i o n of what damag es, if any , can fairly be trac ed to US Ba nk’s RESP A violation. III. WRONGF UL-F ORECLOS URE CLAIM Houston challeng es the val i d ity of the fore closure. The district court, rely ing on an unpublished Michig an Court of Appea ls opinion, found that Houston lacke d standing to contest her fore closure once the statutory rede mption period expired. See Houston II , 2011 WL 4905533, at *6 (discussing Ove rton v. Mortg. Elec. Registration Sys. , No. 284950, 2009 WL 1507342 (Mich. Ct. App. May 28, 2009) (unpublished opinion)). We disag ree that Houston lacks standing to press her claim. Fe dera l d i s trict courts have split over whether the plaintiff in Ove rton lacke d standing —a possibili ty mentioned in, but not analy zed by , the Michig an Court of Appea ls—or whether instead the plaintiff lost his claim on the merits. See, e.g. , Hana v. W ells Fargo Bank , No. 11-14442, 2012 WL 1694643, at *3 n.5 (E.D. Mich. May 15, 2012) (“Most courts in this District have analy zed the issue [i n Ove rton ] as one of standing , but some have noted that Article I I I standing is not in question

We find nothing in the text of § 2605(f) , or in RESP A more broadly , to prec lude “ac tual 6 damag es” f

rom including emotional damag es, provided tha t they are adequately

proven. 9No. 11-2444

Houston v. U.S. Bank

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and the issue is more appropr iately addre ssed as one attac k i n g the merits of the claim.”)

. We conclude that Ove rton ’s holding does not turn on standing doctrine, beca use such an interpre tation appea rs to be contra

ry to Michig an law. See Mfrs. Hanove r Mortg. Corp. v. Snell , 370 N.W.2d 401, 404 (Mich. C t. App. 1985) (“The Supreme Court has l ong held t hat t h e m o rt g ag or m ay hold over afte r fore closure by adver tisement and test the validity of the sale in the summary proce eding .”); see also M I C H . C O M P . L A W S § 600.5714(1)( g ) (a uthorizi ng summary

proce eding s after

rede mption). Neve rtheless, the district court wa s ultimately corr ect to g rant summary judgme nt to US Ba nk. “The rig ht to rede em from a fore closure sale is a statutory ri gh t t hat

. . . can neither be enlar g ed nor abridg ed by the courts.” Detroit Trust Co. v. Detroit City Serv. Co. , 247 N.W. 76, 87 (Mich. 1933). Michig an’s rede mption statutes make no exception either for late rede mption, see § 600.3240(8) (establishing a six -month rede mption period), or for the consequ ence of failing to rede em. See § 600.3236 (“U nless the premises descr ibed in [a sheriff ’s d ee d ] s h all be rede emed within the time lim ited for suc h rede mption . . . [t he deed] shall vest in the g rante e ther ein named, his heirs or assig ns, all the rig ht, titl e, and inter est which the mortg ag or had.” ). Be cause she is outside of the rede mption period, Houston can undo the divestment of her proper ty rig ht only if there was fra ud, acc ident, or mistake. Senters v. Ottawa Sav. Bank, FSB , 503 N.W.2d 639, 643 (Mich. 1993) (stating that § 600.3240 “spec ifies the require ments for rede mption, leaving no room for equitable considerations absent fraud, accide nt, or mistake ”); accord Appellant Br . at 20. I n particula

r, there must be a cle ar showing of fr aud or irr eg ularity as to the for eclosure proce eding itself, and not simply as to any conduct by

a defenda

nt. See Freeman v. W

ozniak , 617

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N.W.2d 46, 49 (Mich. Ct. App. 2000) (finding no equitable g rounds for relief wher e a plaintiff, due
to mental inability , never rec eived notice of a fore cl osure whose “proc edure was technica lly proper ”). The district court found, and Houston does not contest on appea l, that “Plaintiff does not show that there was fra

ud, acc ident, or mistake rela ted to the fore closure proce eding s specific ally .” Houston II

, 2011 WL 4905533, at *6. Acc ording ly , Houston’s wrong ful-for eclosure claim fa ils.

IV. BREACH-OF -CONTRACT CLAIM H o u s ton arg ues that MSHDA, throug h its Ex ecutive Direc tor Heidel, faile d to “ e n g a g e in lo s s mitigation actions for the purpose of providing an alterna tive to fore closure.” 12 U.S.C. § 1715u(a)

. Houston ag re es t h at § 1 7 15u does not cre ate a private rig ht of action, but arg ues instead that the
terms of § 1715u wer e incorpora ted into her mortg ag e contra ct with MSHDA. R. 16 (Am. Compl. ¶¶ 56–63) (Pag e I D #277–78). The district court found that M ichig an’s pree x isting-duty rule prec ludes enfor ceme nt of § 1715u throug h contra ct law. We ag ree . The parties do not dispute that Michig an law g overns this cl ai m . M i chig an contra ct law follows the pree x isting-duty rule. 46th Circuit Trial Court v. Cnty. of Crawf ord , 719 N.W.2d 553, 568 (Mich. 2006). M i ch i gan co urts extend the rule to cover pree x isting statutory duties. Gen. Aviation, Inc. v. Capital Region Airpo r t A u t h

. , 5 69 N.W.2d 883, 885 (Mich. Ct. App. 1997) (dismissing a brea ch-of

-contra ct claim beca

use “[a] pledg e to underta ke a pree x isting statutory duty is not supported by adequa te considera

tion”); accord Alar v. Merc y Mem ’l Hosp. , 529 N.W.2d 318, 321–22 (Mich. Ct. App. 1995). Acco rd i n gl y , Houston cannot claim that MSHDA’s pree x isting § 1715u obliga tions are e nforc eable by means of a

brea ch-of

-contra ct claim.

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At oral arg ument, Houston argue d that the pree x isting-duty rule does not apply for two

rea sons: MSHDA’s statutory duties under § 1715u wer e not owed to her, and she g ave independe nt consideration—an adjac ent section of t he contra ct require s that she insure her mortg ag e note—in exchang e for MSHDA’s promise to obey § 1715u. Both arg uments misunderstand the pree x istingduty rule. At issue is w hether , at the time of formation, MSHDA offe red something of leg al value in exchang e for Houston doing the same. MSHDA did not, bec ause it could not; there is no leg al value in MSHDA promising to perf orm a service that it was alre ad y re q u ired by law to perf orm. Cnty. of Crawf

ord , 719 N.W.2d at 568 (“‘ Under the pree x isting-duty rule, it is well settled that doing what one is leg ally bound to do is not consideration for a new promise.’” (quoting Y erkov ich v. AAA , 610 N.W.2d 542, 546 (Mich. 2000)))

. Finally , g ranting that Houston g ave additional consideration for MSHDA’ s promise does not disrupt the conc lusion that it could not amount to considera tion. Houston also arg ues that Heidel b re ac h ed t he implied covena nt of g ood faith by violating express terms of the mortg ag e contra ct. The district court found that M ichig an permits impliedcovena nt actions only wher e the manner of a party ’s perf ormanc e under the contra ct is discretionar y . Houston II

, 2011 W L 4905533, at *8. Houston cites the same rule. Appellant Br

. at 25 (quoting Burkhardt v. City Nat’l Bank of Detroit , 226 N.W.2d 678, 680 (Mich. Ct. App. 1975 ))

. Ho u s ton does not alleg e that Heidel had discretion in perf orming his § 1715u duties. Cf. § 1715u(a) (stating that “mortg ag ees shall eng ag e in loss mitigation actions”)

. I ndeed, her brief emphasize s t h e mandatory

quality of § 1715u. See, e .g. , Appellant B r. at 28; id. at 30, 33, 35. Acc ording ly , there is no breac h of the implied cove nant of g ood faith.

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V. CONCLUSION We REVERSE and REMAND for consideration of what damag es may have resulted from US Ba nk’s RESPA viol ation, and AF F IRM the re mainder of the district court’s judg ment.

13