Tim Neff v. Flagstar Bank, FSB , 616 F. App'x 791 ( 2015 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 15a0441n.06
    Case No. 14-3837
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    TIM L. NEFF; BOBBIE K. NEFF,                      )                     Jun 12, 2015
    DEBORAH S. HUNT, Clerk
    )
    Plaintiffs-Appellants,                    )
    )      ON APPEAL FROM THE UNITED
    v.                                                )      STATES DISTRICT COURT FOR
    )      THE SOUTHERN DISTRICT OF
    FLAGSTAR BANK, FSB,                               )      OHIO
    )
    Defendant-Appellee.                       )
    BEFORE: MOORE and COOK, Circuit Judges; COHN, District Judge.*
    COOK, Circuit Judge. This is the second appeal stemming from Flagstar Bank, FSB’s
    foreclosure of Tim and Bobbie Neff’s home. See Neff v. Flagstar Bank, FSB, 520 F. App’x 323
    (6th Cir. 2013). The Neffs allege that Flagstar induced them to forgo hiring counsel to defend
    against foreclosure by repeatedly promising them it would modify their loan. The district court
    granted summary judgment to Flagstar, and we AFFIRM.
    In September 2009, the Neffs fell behind in their mortgage payments and requested a
    loan modification from Flagstar. Compounding these financial difficulties, Tim Neff injured his
    back at work the following month and began receiving workers’ compensation benefits at a
    fraction of his regular salary.
    *
    The Honorable Avern L. Cohn, Senior United States District Judge for the Eastern
    District of Michigan, sitting by designation.
    Case No. 14-3837
    Neff, et al. v. Flagstar Bank, FSB
    During the next year and a half, Flagstar solicited financial documents from the Neffs in
    support of their modification application, which they supplied. The Neffs offer evidence that the
    bank led them to believe it would modify their loan to a payment structure they could afford.
    Flagstar counters that it never guaranteed the Neffs a modification. Tim Neff acknowledged in
    his deposition that a representative told him “that one of the issues that [the bank] was having
    with modification . . . [was] that [he was] receiving temporary total as opposed to a permanent
    disability payment.” The Neffs owed over $150,000 on the loan, and Flagstar offered them a
    temporary forbearance on the condition they make four reduced payments and supply all
    requested documentation.
    In December 2010, the Neffs failed to send a tax document required under the
    forbearance agreement, and the bank told them it would not modify their loan based on the
    information they supplied. The Neffs executed the forms and sent them to Flagstar. Soon after,
    Flagstar’s attorney sent a letter warning the Neffs that they were in default and the bank intended
    to commence foreclosure proceedings. Tim Neff asserts that he phoned the bank in response to
    the letter and that an employee assured him he would not need legal counsel for the impending
    foreclosure action because Flagstar could “do everything an attorney could do” at no cost and
    that foreclosure was “a formality.”
    In January 2011, Flagstar filed a foreclosure action in the Knox County Court of
    Common Pleas, and the Neffs—allegedly relying on Flagstar’s assurances—declined to hire an
    attorney or answer the complaint. In June, the state court granted Flagstar’s motion for a default
    judgment and scheduled the sheriff’s sale for early December. The Neffs state that, despite the
    letter rejecting their application for a modification, the bank continued to assure them it was still
    working diligently on a modification throughout this period.
    -2-
    Case No. 14-3837
    Neff, et al. v. Flagstar Bank, FSB
    A few weeks before the sale date, Flagstar sent a letter denying the Neffs’ updated
    application, citing another failure to provide the necessary documentation. At roughly the same
    time, the Neffs learned of the sheriff’s sale and sought legal counsel. Through their attorney, the
    Neffs moved for relief from the default judgment. But the sale proceeded as scheduled, and the
    state court issued a one-sentence order overruling the Neffs’ motion several months later.
    After the sale but before the denial of their Rule 60(B) motion, the Neffs sued Flagstar in
    federal district court, alleging violations of the Fair Debt Collection Practices Act, fraudulent
    misrepresentation, and promissory estoppel.1 The court dismissed the FDCPA claim under Rule
    12(b)(6) of the Federal Rules of Civil Procedure, but permitted discovery on the state-law claims.
    The Neffs do not challenge the dismissal of their FDCPA claim.
    Following discovery, Flagstar moved for summary judgment on the fraud and promissory
    estoppel claims, which the court granted. The court found the Neffs’ claims precluded by the
    state-court default judgment and the Neffs’ failure to appeal the denial of their Rule 60(B)
    motion. The Neffs timely appeal.
    We review the district court’s grant of summary judgment de novo. Gargallo v. Merrill
    Lynch, Pierce, Fenner & Smith, Inc., 
    918 F.2d 658
    , 660 (6th Cir. 1990). We construe all
    reasonable inferences in favor of the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith
    Radio Corp., 
    475 U.S. 574
    , 587 (1986), and uphold the grant of summary judgment if “there is
    no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
    law,” Fed. R. Civ. P. 56(a).
    1
    Although the complaint includes a claim for “Breach of Contract and Promissory
    Estoppel,” the district court construed this as a claim only for promissory estoppel because it
    found the Neffs neither alleged facts supporting a breach of contract nor advanced that claim in
    any briefing. The Neffs do not challenge this ruling on appeal.
    -3-
    Case No. 14-3837
    Neff, et al. v. Flagstar Bank, FSB
    Although the district court judged the Neffs’ claims precluded, Flagstar presses us to
    affirm because the Neffs offer no evidence that they suffered any harm as a result of the bank’s
    conduct. See Olympic Holding Co. v. ACE Ltd., 
    909 N.E.2d 93
    , 101 (Ohio 2009) (“[T]he party
    claiming the [promissory] estoppel must have relied on conduct of an adversary in such a manner
    as to change his position for the worse.” (citation omitted)); Roark v. Rydell, 
    881 N.E.2d 333
    ,
    343 (Ohio Ct. App. 2007) (listing causation and harm as elements of fraud). We agree and
    affirm on this alternative ground.    See Airline Prof’ls Ass’n of Int’l Bhd. of Teamsters v.
    Airborne, Inc., 
    332 F.3d 983
    , 986 n.3 (6th Cir. 2003) (“It is well-established that a prevailing
    party may assert in a reviewing court any ground in support of his judgment, whether or not that
    ground was relied upon or even considered by the trial court.” (citation and internal quotation
    marks omitted)).
    The Neffs allege that Flagstar misrepresented its willingness to modify the loan as well as
    the Neffs’ need for an attorney in the foreclosure action.      They reason that, absent these
    misrepresentations, they would have prevented the sale of their home by defending the
    foreclosure action or paying the outstanding balance on their loan. First, this argument presumes
    that the Neffs could have successfully defended the foreclosure action with the assistance of
    counsel, a presumption their own evidence undermines. When asked how an attorney would
    have improved their lot, Tim Neff cited the many solicitations he received from attorneys
    promising to save his home and speculated that one of these “could have worked with Flagstar
    and got a remodification of the loan.” But the Neffs identify no legal defense or other leverage
    to bargain with; they entered default before requesting a modification, they had no way to make
    their payments without a modification, and they recognized that Flagstar’s best offer might still
    prove unaffordable. See Telxon Corp. v. Smart Media of Del., Inc., Nos. 22098, 22099, 2005
    -4-
    Case No. 14-3837
    Neff, et al. v. Flagstar Bank, FSB
    WL 2292800, at *36 (Ohio Ct. App. Sept. 21, 2005) (“[C]onsequential damages are severely
    limited by concepts such as proximate cause, foreseeability, mitigation, remoteness and
    speculation.”).
    Alternatively, the Neffs suggest that they “could have used their tax refunds to cure the
    default” or “applied for state or federal funds to reinstate or modify their loan.” But the evidence
    they point to shows that their tax refunds were too insubstantial to cure the default. And they
    offer no evidence of their ability to obtain state or federal funding. If the Neffs could not assert a
    colorable defense in the state court or otherwise stave off foreclosure, then Flagstar’s statements
    were not the proximate cause of their alleged injury. See Roark v. 
    Rydell, 881 N.E.2d at 343
    .
    The same rationale applies to the promissory estoppel claim. The Neffs argue that they
    detrimentally relied on Flagstar’s promise to provide a modification or a second temporary
    forbearance plan. But as the facts above show, the Neffs had no alternative to a modification or
    forbearance and therefore did not “change [their] position for the worse” due to Flagstar’s
    promise. 
    Olympic, 909 N.E.2d at 101
    . Thus, the Neffs failed to demonstrate that there exists a
    genuine dispute of fact as to whether they suffered any harm as a result of Flagstar’s conduct.
    See Fed. R. Civ. P. 56(c)(1).
    We AFFIRM the judgment.
    -5-