Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 1 of 37 PageID #: 878
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`
`§
`ROBERT G. WIELAND AND
`§
`KRISTINA M. WIELAND
`§
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`Plaintiffs,
`§
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`§
`VS.
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`§
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`§
`JPMORGAN
`§
`CHASE BANK, NATIONAL
`§
`ASSOCIATION, ATTORNEY-IN-FACT
`FOR DEUTSCHE BANK NATIONAL §
`TRUST COMPANY AS TRUSTEE FOR
`§
`NEW CENTURY HOME EQUITY LOAN §
`TRUST, SERIES 2003-B
`§
`
`
`§
`
`Defendant.
`§
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` CIVIL ACTION NO. 4:14-cv-00695
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT
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`WM. LANCE LEWIS
`Texas Bar No. 12314560
`TRAVIS LEE RICHINS
`Texas Bar No. 24061296
`QUILLING, SELANDER, LOWNDS,
` WINSLETT & MOSER, P.C.
`2001 Bryan Street, Suite 1800
`Dallas, Texas 75201
`(214) 871-2100 (Telephone)
`(214) 871-2111 (Facsimile)
`llewis@qslwm.com
`trichins@qslwm.com
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`
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`ATTORNEYS FOR DEFENDANT
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 2 of 37 PageID #: 879
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`Introduction
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`Statement of Issues
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`TABLE OF CONTENTS
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`Whether Plaintiffs can maintain a claim for breach of the First
`Repayment Plan despite their failure to perform under the loan
`agreement or the repayment plan. ..............................................................................2
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`Whether the repayment plan is an enforceable agreement despite
`requiring nothing of Plaintiffs other than the payment of past-due
`amounts owed under the loan. ...................................................................................2
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`Whether Plaintiffs were harmed by Chase’s alleged breach of the
`repayment plan even though full performance of the repayment
`plan would have left Plaintiffs in the same position they were in
`when they started it. ...................................................................................................2
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`Whether the repayment plan is unenforceable as a result of a mutual
`Mistake that the plan payments were sufficient to cure Plaintiffs arrearage .............3
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`Whether Plaintiffs could reasonably rely on the First Repayment Plan ....................3
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`Whether Plaintiffs’ performance of a pre-existing duty can constitute
`detrimental reliance ....................................................................................................3
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`7.
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`Whether Chase owed Plaintiffs any duty not arising out of contract ........................3
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`Summary Judgment Evidence............................................................................................................3
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`Statement of Undisputed Facts ..........................................................................................................3
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`Standard for Summary Judgment.......................................................................................................9
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`Argument and Authorities..................................................................................................................9
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`A.
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`Plaintiffs’ breach of contract claim fails as a matter of law. .....................................9
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`1.
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`2.
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`3.
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`The First Repayment Plan fails for lack of consideration. .............................10
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`Plaintiffs did not perform under the Loan Agreement or the
`First Repayment Plan. ....................................................................................12
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`Plaintiffs were not harmed by Chase’s alleged breach ..................................14
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`ii
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 3 of 37 PageID #: 880
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`H.
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`4.
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`5.
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`6.
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`Plaintiffs are not entitled to specific performance .........................................16
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`To the extent the First Repayment Plan required waiver of
`arrearages, that term was the result of mutual mistake ..................................18
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`Chase did not waive the arrearage by accepting payments ............................19
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`The economic loss rule bars Plaintiffs’ gross negligence and
`negligent misrepresentation claims ............................................................................19
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`Plaintiffs’ negligent misrepresentation claim fails as a matter of law .......................20
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`Plaintiffs’ promissory estoppel claim fails as a matter of law ...................................23
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`Plaintiffs’ gross negligence claim fails as a matter of law .........................................24
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`Plaintiffs’ TDCA claim fails as a matter of law ........................................................25
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`1.
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`2.
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`3.
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`4.
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`Chase did not violate 392.304(a)(8) or (9) .....................................................25
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`Chase did not violate section 392.303(a)(2) ..................................................28
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`Chase did not violate section 392.301(a)(8) ..................................................28
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`Plaintiffs were not harmed by Chase’s alleged TDCA violations .................29
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`Plaintiffs are not entitled to declaratory relief ...........................................................29
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`The statute of frauds bars any claims seeking the benefit of an alleged
`oral promise to modify the Loan Agreement .............................................................30
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`iii
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 4 of 37 PageID #: 881
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`TABLE OF AUTHORITIES
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`Page
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`Cases
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`Amburgey v. Corhart Refractories Corp., 936 F.2d 805 (5th Cir.1991) .........................................9
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`Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695
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`(Tex. App.—Dallas 2008, no pet.) .....................................................................................10
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`Ass’n of Am. Physicians & Surgeons, Inc. v. U.S. Dept. Of Health & Human Services,
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`224 F. Supp. 2d 1115 (S.D. Tex. 2002) aff’d, 67 Fed. Appx. 253 (5th Cir. 2003) ............30
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`Bracken v. Wells Fargo Bank, N.A., 13 F. Supp. 3d 673 (E.D. Tex. 2014),
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`aff'd sub nom. Bracken v. Wells Fargo Bank Nat. Ass'n,
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`612 Fed. Appx. 248 (5th Cir. 2015) .......................................................................10, 11, 30
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`Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ..............................................................16
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`Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................9
`
`Collier v. Wells Fargo Home Mortg. as Successor in Interest to
`Norwest & Parker Square Bank, 7:04-CV-086-K, 2006 WL 1464170
`
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`(N.D. Tex. May 26, 2006)............................................................................................19, 20
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`Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008) .......................24
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`Davis v. Grammer, 750 S.W.2d 766 (Tex. 1988) ..........................................................................18
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`Evans v. United Air Lines, Inc., 62 F.3d 395 (5th Cir. 1995) ........................................................21
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`Fields v. JP Morgan Chase Bank, N.A., 15-10034, 2016 WL 197191
` (5th Cir. Jan. 15, 2016) .....................................................................................................26
`
`
`Geske v. Wells Fargo Bank, Nat. Ass’n, 3:11-CV-3337-L,
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`2012 WL 1231835 (N.D. Tex. Apr. 12, 2012) ..................................................................16
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`Guajardo v. JP Morgan Chase Bank, N.A., 605 Fed. Appx. 240 (5th Cir. 2015) .........................23
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`Guzman v. Acuna, 653 S.W.2d 315
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`(Tex. App.—San Antonio 1983, writ dism’d) ...................................................................16
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`James v. Wells Fargo Bank, N.A., 533 F. App'x 444 (5th Cir. 2013 .............................................11
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`Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc) .................................................9
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`Lowe v. Ingalls Shipbldg., 723 F.2d 1173 (5th Cir. 1984 ..............................................................30
`iv
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`

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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 5 of 37 PageID #: 882
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`Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) ..............................9
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`Mayes v. Stewart, 11 S.W.3d 440 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) .............20
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`McAllister v. BAC Home Loans Servicing, LP, 4:10-CV-504,
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`2011 WL 2200672 (E.D. Tex. Apr. 28, 2011),
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`report and recommendation adopted, 4:10-CV-504,
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`2011 WL 2183844 (E.D. Tex. June 6, 2011) ...............................................................24, 25
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`McCallum Highlands, Ltd. v. Washington Capital Dus, Inc.,
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`66 F.3d 89 (5th Cir.) opinion corrected on denial
`of reconsideration, 70 F.3d 26 (5th Cir. 1995) ..................................................................10
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`Miller v. CitiMortgage, Inc., 970 F. Supp. 2d 568 (N.D. Tex. 2013) ............................................30
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`Mobil Oil Corp. v. Ellender, 968 S.W.2d 917 (Tex.1998) ............................................................24
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`Neeley v. Bankers Trust Co. of Texas, 757 F.2d 621 (5th Cir. 1985) ......................................16, 17
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`Pennbright Indus., Inc. v. Dist. Dir., I.R.S., Sw. Region, CIV. A. H-88-487,
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`1990 WL 18061 (S.D. Tex. Jan. 22, 1990) ........................................................................10
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`Pennington v. HSBC Bank USA, Nat’l Ass’n, No. A-10-CA-785 LY,
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`2011 WL 6739609 (W.D. Tex. Dec. 22, 2011), aff’d
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`493 F. App’x 548 (5th Cir. 2012) ......................................................................................22
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`Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) .........................................................................24
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`Rackley v. JPMorgan Chase Bank, Nat. Ass'n, SA-11-CV-387-XR,
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`2011 WL 2971357 (W.D. Tex. July 21, 2011) ..................................................................11
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`Reid v. Aransas Cnty., Civil Action No. C-10-144,
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`2011 WL 1337108 (S.D. Tex. Apr. 6, 2011) .....................................................................30
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`Rhodes v. Wells Fargo Bank, N.A., 3:10-CV-02347-L,
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`2013 WL 2090307 (N.D. Tex. May 14, 2013) ............................................................11, 13
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`Richardson v. Wells Fargo Bank, N.A., 873 F.Supp. 2d 800 (N.D. Tex. 2012) ............................12
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`Rucker v. Bank of Am., N.A., 806 F.3d 828 (5th Cir. 2015) .....................................................25, 29
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`Singer v. Carrington Labs., Inc., CIV.A. 301CV1776L, 2003 WL 22300140
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` (N.D. Tex. Oct. 3, 2003) ...................................................................................................10
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`Singh v. JP Morgan Chase Bank, NA, 4:11-CV-607, 2012 WL 2013019
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`(E.D. Tex. Apr. 5, 2012), report and recommendation adopted,
`v
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 6 of 37 PageID #: 883
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`4:11-CV-607, 2012 WL 2012742 (E.D. Tex. June 5, 2012) .......................................19, 20
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`
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`Singha v. BAC Home Loans Servicing, L.P., 564 Fed. Appx. 65 (5th Cir. 2014) .........................26
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`Smith Int’l., Inc. v. Egle Group, LLC, 490 F.3d 380 (5th Cir. 2007) ............................................12
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`Thanksgiving Tower Partners v. Anros Thanksgiving Partners,
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`64 F.3d 227 (5th Cir. 1995) ...................................................................................15, 20, 21
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`Thomas v. EMC Mortg. Corp., 499 Fed. Appx. 337 (5th Cir. 2012) .................................19, 20, 21
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`Thomas v. HSBC Bank USA, N.A., CIV.A. G-14-076, 2015 WL 4622614
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`(S.D. Tex. May 12, 2015), report and recommendation adopted sub nom.
`Thomas v. PHH Mortg. Corp., 3:14-CV-0076, 2015 WL 4622625
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`(S.D. Tex. July 31, 2015) ...................................................................................................11
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`T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992) ..............................16
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`Verdin v. Fed. Nat. Mortg. Ass’n, 540 Fed. Appx. 253 (5th Cir. 2013) ........................................26
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`Waltner v. Aurora Loan Services, L.L.C., 551 F. App’x 741 (5th Cir. 2013) ...............................22
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`Watson v. Citimortgage, Inc., 814 F. Supp. 2d 726 (E.D. Tex. 2011) ...........................................10
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`
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`Statutes/Miscellaneous
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`Tex. Fin. Code § 392.303(a)(2) .....................................................................................................28
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`Fed. R. Civ. P. 56(c) ......................................................................................................................9
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`
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`4827-4242-5388, v. 1
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 7 of 37 PageID #: 884
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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` CIVIL ACTION NO. 4:14-cv-00695
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT
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`JPMorgan Chase Bank, National Association, attorney-in-fact for Deutsche Bank
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`§
`ROBERT G. WIELAND AND
`§
`KRISTINA M. WIELAND
`§
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`Plaintiffs,
`§
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`§
`VS.
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`§
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`
`§
`JPMORGAN
`§
`CHASE BANK, NATIONAL
`§
`ASSOCIATION, ATTORNEY-IN-FACT
`FOR DEUTSCHE BANK NATIONAL §
`TRUST COMPANY AS TRUSTEE FOR
`§
`NEW CENTURY HOME EQUITY LOAN §
`TRUST, SERIES 2003-B
`§
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`
`§
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`Defendant.
`§
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`National Trust Company, as Trustee for New Century Home Equity Loan Trust, Series 2003-B,
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`Asset Backed Pass-Through Certificates, Series 2003-B (“Chase” or “Defendant”) hereby files
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`this Amended Motion for Summary Judgment, and would respectfully show as follows:
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`INTRODUCTION
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`Plaintiffs assert breach of contract, negligent misrepresentation, gross negligence, and
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`Texas Debt Collection Practices Act (“TDCA”) claims based on allegations that Chase breached
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`a repayment plan dated January 15, 2014. It is undisputed that the repayment plan did not require
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`sufficient payments to bring Plaintiffs current on their loan. As a result, Chase cancelled the plan
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`and offered Plaintiffs a new plan with sufficient payments to bring the loan current. Plaintiffs
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`claim they did not receive the new plan and that they would have rejected it if they had.
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 1
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 8 of 37 PageID #: 885
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`Plaintiffs’ breach of contract claim fails as a matter of law because: (1) the repayment
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`plan fails for lack of consideration; (2) Plaintiffs breached their loan agreement and the
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`repayment plan; (3) Plaintiffs were not harmed by Chase’s alleged breach; and (4) to the extent
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`the repayment plan is misconstrued as an agreement to waive part of Plaintiffs’ arrearage, that
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`term resulted from mutual mistake.
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`Plaintiffs’ negligent misrepresentation and promissory estoppel claims fail because
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`Plaintiffs immediately recognized the mistake in the plan and therefore could not have
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`detrimentally relied on it as either a misstatement of fact or a promise of future performance.
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`Further, Plaintiffs were not harmed by their alleged reliance. Plaintiffs’ performance under the
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`repayment plan cannot constitute detrimental reliance because, in Texas, performance of a
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`pre-existing duty is not detrimental reliance.
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`Plaintiffs’ gross negligence claim fails as a matter of law because all of Chase’s duties to
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`Plaintiffs arose out of the loan agreement between the parties. Further, Plaintiffs were not
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`harmed by Chase’s alleged breach of the repayment plan.
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`Plaintiffs’ TDCA claim fails as a matter of law because undisputed evidence proves
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`Chase did not violate the provisions of the TDCA asserted by Plaintiffs and Plaintiffs were not
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`harmed by Chase’s alleged violations.
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`STATEMENT OF ISSUES
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`Whether Plaintiffs can maintain a claim for breach of the First Repayment Plan
`despite their failure to perform under the loan agreement or the repayment plan.
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`Whether the repayment plan is an enforceable agreement despite requiring nothing of
`Plaintiffs other than the payment of past-due amounts owed under the loan.
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`Whether Plaintiffs were harmed by Chase’s alleged breach of the repayment plan
`even though full performance of the repayment plan would have left Plaintiffs in the
`same position they were in when they started it.
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`1.
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`2.
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`3.
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 2
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 9 of 37 PageID #: 886
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`4.
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`5.
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`6.
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`7.
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`Whether the repayment plan is unenforceable as a result of a mutual mistake that the
`plan payments were sufficient to cure Plaintiffs’ arrearage.
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`Whether Plaintiffs could reasonably rely on the First Repayment Plan.
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`Whether Plaintiffs’ performance of a pre-existing duty can constitute detrimental
`reliance.
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`Whether Chase owed Plaintiffs any duty not arising out of contract.
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`SUMMARY JUDGMENT EVIDENCE
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`In support of this Motion, Chase relies upon and incorporates herein by reference the
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`evidence attached to the Appendix of Summary Judgment Evidence, attached hereto.
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`STATEMENT OF UNDISPUTED FACTS
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`On August 8, 2003, Plaintiffs executed a Texas Home Equity Fixed/Adjustable Rate Note
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`(“Note”) in the principal amount of $112,000.00, a Texas Home Equity Security Instrument
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`(“Deed of Trust”) in favor of New Century Mortgage Corporation encumbering the property
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`located at 2705 Kingston Drive, Plano, Texas 75074 (“Property”), and other loan documents
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`(together, the “Loan” or “Loan Agreement”). Ex. A-1, A-2. Plaintiffs acknowledged the written
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`Loan Agreement represented the final agreement between the parties and could not be
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`contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the
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`parties. Ex. A-3.
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`The Note requires Plaintiffs to “make [their] monthly payments on the first day of each
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`month . . . until [they] have paid all of the principal and interest and . . . other charges” owed
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`under the Note. Ex. A-1 ¶3. The Deed of Trust requires Plaintiffs to make their monthly
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`payments “when due” and allows Chase to “return any payment or partial payment if the
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`payment or partial payments are insufficient to bring the [Loan] current.” Ex. A-2 ¶1. Chase may
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 3
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`also “accept any payment or partial payment insufficient to bring the [Loan] current, without
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`waiver of any rights” under the Loan Agreement. Id.
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`It is undisputed Plaintiffs defaulted under the Loan by failing to make payments as they
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`came due. On October 24, 2013, Chase filed a Tex. Rule Civ. P. 736 Application for Home
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`Equity Foreclosure Order and Affidavit with the 219th District Court of Collin County, Texas
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`(“Rule 736 Action”). Ex. D-1. Despite the pending Rule 736 Action, Chase and Plaintiffs
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`continued to discuss alternatives to foreclosure. Robert Wieland claims he spoke with Chase in
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`December 2013 or January 2014 and was told Plaintiffs were eligible for a repayment plan. Ex.
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`B at 48:8-24. Robert Wieland admits: (1) he understood a repayment plan would require
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`Plaintiffs to make payments to bring the Loan current; and (2) he had no discussion with Chase
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`about waiving the arrearage owed under the Loan Agreement. Id.
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`On January 15, 2014, Chase offered Plaintiffs a Repayment Plan Agreement (the “First
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`Repayment Plan”). Ex. C-4. At the time, the Loan was due for January 1, 2012, meaning the
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`Plaintiffs were 24 months behind on their payments. Ex. C-2 at 228. Plaintiff’s total arrearage
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`was $36,186.08 and the current monthly payment under the Loan was $1,280.16. Ex. C ¶16; Ex.
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`C-11.1 The First Repayment Plan offered Plaintiffs 12 months to cure the 24-month arrearage by
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`making monthly repayment plan payments beginning February 1, 2014. Ex. C-4. Despite
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`correctly indicating the arrearage was $36,186.08, however, the First Repayment Plan required
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`only 12 monthly payments of $1,514.85 (a total of $18,178.20), an amount that was obviously
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`insufficient to cure the $36,186.08 arrearage, much less cure the arrearage and cover the
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`approximately $15,361.92 in monthly payments that came due during the 12-month repayment
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`1 Prior to July 1, 2013, the monthly payment was $1,206.57. Most of Plaintiffs’ arrearage consisted of missing
`monthly payments of $1,206.57.
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 4
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 11 of 37 PageID #: 888
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`period. Id. at 2847.2 If Chase had accepted each payment under the First Repayment Plan, by the
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`end of the repayment period the past-due amount owed under the loan in February 2015 would
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`have been approximately $33,369.80.3
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`The First Repayment Plan expressly states it is “not a new loan or a refinancing from
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`Chase” but merely a “leniency provided for under the Loan Documents signed with Chase.” Id.
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`at 2849 (emphasis added). It further states Chase was “not waiving and [had] not waived any
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`defaults under the Loan Documents” and that by accepting the plan Plaintiffs agreed that they
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`owed $36,186.08 under the Loan. Id. It indicates that the plan was based on “estimates of fees
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`and costs,” that it “may not cure, or correct, the default” and that at the completion of the First
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`Repayment Plan other “mortgage assistance option may be necessary.” Id. at 2851. It further
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`indicates that ‘[i]f more money is due than estimated in the Repayment Plan . . . [Chase] will add
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`the additional amount to the regular monthly payment that follows the final Repayment Plan
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`payment.” Id. at 2848.
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`Plaintiffs immediately recognized the Repayment Plan Schedule did not require sufficient
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`payments to cure their arrearage. Ex. A at 37:19-39:9, 42:19-43:9, 49:2-14; Ex. B at 49:2-21,
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`50:9-12. They made the first (February) repayment plan payment4 and promptly contacted
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`Chase, on February 5, 2014, to ask “why the [First Repayment Plan] only pays 1/2 of what’s
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`owed and . . . what happens to the balance owed . . .” Ex. C-6 at 152. A Chase employee told
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`Kristina the Plaintiffs would “only be paying back a portion and [would] need to reapply for
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`assistance at the end of the repayment plan to cure the left over amount.” Ex. A at 37:19-39:9,
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`42:19-43:9, 49:2-14; Ex. B at 49:2-21, 50:9-12. Kristina Wieland admits this is the only
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`2 The regular monthly payment at the time was $1,280.16, meaning an additional $15,361.92 would come due
`during the repayment plan.
`3 $36,186.08 + $15,361.92 – $18,178.20 = $33,369.80.
`4 The February payment is reflected on the payment history as two separate transaction amounts, $308.28 and
`$1,206.57, totaling $1,514.85. See Ex. C-2 at 228.
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 5
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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 12 of 37 PageID #: 889
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`conversation she had with Chase about the First Repayment Plan, and that Chase did not say the
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`plan was waiving any part of the arrearage:
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`Q: Did you have any discussion [with] Chase about waiving the arrearage?
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`A: Not at that time. We just signed the agreement and sent it back.
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`* * *
`Q: Did you have any discussion with Chase about the repayment plan?
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`A: Yes.
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`Q: When?
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`A: It was either February or March I called and asked for a clarification. . . I
`called to speak with someone at Chase in the hopes that I could better understand
`what the repayment plan was actually saying as far as what would happen when
`we made the 12 payments. And the person I talked to apparently called up the
`plan on his computer and he said, well, I don’t understand it either. And that was
`– that was my communication with them.
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`Q: Was that the only conversation you had with Chase about the repayment plan?
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`A: Yes.
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`Ex. A at 40:1-5; 42:19-43:12.
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`
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`Kristina Wieland initially testified that she believed the First Repayment Plan was
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`agreeing to waive Plaintiffs’ remaining arrearage. Ex. A at 39:20-25. When pressed further,
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`however, she admitted she “was actually confused as to what the agreement actually meant,”
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`thought the plan contradicted itself, and “didn’t know what to believe” would happen to the
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`remaining arrearage because “it wasn’t clear” from “way the document was written.” Ex. A at
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`39:20 – 41:17. She testified that after discussing the plan with Chase, she continued making
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`payments, thinking at some point Plaintiffs would “have a discussion with Chase as to what
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`would happen to the balance.” Ex. A at 57:9-24. Robert Wieland testified the Plaintiffs assumed
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`Chase was either offering to waive part of the arrearage or would “come up with a second
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`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 6
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`

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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 13 of 37 PageID #: 890
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`repayment plan for the second year.” Ex. B at 50:19-22. In a letter dated August 19, 2014,
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`Plaintiffs claimed they were “initially told that the repayment calculation was figured over 24
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`months instead of 12 months, and the math bears this out.” Ex. C-10.
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`
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`Plaintiffs admit that if Chase had accepted every payment under the First Repayment
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`Plan, they would not have been able to bring the loan current at the end of the plan:
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`Q: . . . let’s assume you made all those payments under the first repayment plan from
`February 2014 through January 2015, at the end of that would you have been able to
`bring the loan current?
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`A: No.
`
`
`
`Ex. B at 63:14-18.
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`
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`On February 24, 2014, Chase updated the repayment plan in its system to ensure the loan
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`would be current upon completion of the plan but did not at that time mail an updated repayment
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`plan. Ex. C-6 at 288. On February 28, 2014, Chase received and accepted Plaintiffs’ second
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`(March) repayment plan payment of $1,514.85. Ex. C-2 at 227. On March 5, 2014, Chase
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`contacted Plaintiffs by phone to notify them of the updated repayment plan terms. Ex. C-6 at
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`287-288. Chase called Plaintiffs again on March 6, 2014 to notify them of the updated repayment
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`plan. Id. at 287. On March 19, 2014, Chase generated the updated repayment plan (the “Second
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`Repayment Plan”) with a payment schedule sufficient to cure Plaintiffs’ delinquency. Id. The
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`Second Repayment Plan required a payment of $1,206.57 on or before April 1, 2014 and 11
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`monthly payments of $4,204.86 from May 1, 2014 through March 1, 2015. Ex. C-5. Plaintiffs
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`claim they never received the Second Repayment Plan. Ex. B at 59:19-60:13. They admit,
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`however, that if they had received the Second Repayment Plan, they would have rejected it. Ex.
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`B at 69:3-11. On March 24, 2014, Chase sent Plaintiffs a letter explaining that the First
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`Repayment Plan contained an error and that Chase was sending an updated agreement with a
`
`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 7
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`

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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 14 of 37 PageID #: 891
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`corrected amount. Ex. E-13. Plaintiffs do not deny receiving the March 24, 2014 letter.
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`
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`Both the First Repayment Plan and the Second Repayment Plan indicate that if any
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`payments “are not paid on time” Plaintiffs would be in default. Ex. C-4 at 2849; Ex. C-5 at 74.
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`Plaintiffs’ April payment—whether considered a third payment under the First Repayment Plan
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`or a first payment under the Second Repayment Plan—was untimely. Ex. C-2 at 227 (showing
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`April payment applied on 4/12/14); Ex. B at 53:22-54:8 (admitting April payment was made
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`after April 1, 2014). Plaintiffs also made their May through August payments untimely. Ex. B at
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`54:12-21; 55:9-22; 56:4-21 (admitting May through August payments were made late); Ex. C-7.
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`Robert Wieland alleges Plaintiffs waited until after the first of the month to make payments
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`because: (1) Plaintiffs were on a fixed income and needed to make sure there was “not a debit in
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`the account”; and (2) someone at Chase told Plaintiffs there was a 16-day grace period. Ex. B at
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`52:20-23; 54:1-8. Chase accepted Plaintiffs’ April and May payments of $1,514.85 but refused
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`the June through August payments because they were not sufficient under the Second
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`Repayment Plan. Ex. B at 55:9-22; 56:4-57:10; Ex. C-9 (indicating the Second Repayment Plan
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`was “considered broken on June 2, 2014 . . . .”). Plaintiffs have not tendered any payments since
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`August 2014. Id.
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`
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`In a letter to Chase dated June 23, 2014, Plaintiffs claim they spoke with several Chase
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`representatives on June 19, 2014 and received conflicting information about why the First
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`Repayment Plan was cancelled. Ex. C-8. According to Plaintiffs’ letter, two of the
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`representatives offered to reconsider a repayment plan for Plaintiffs, but Plaintiffs rejected these
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`offers. Id. Plaintiffs indicated in the letter that they were both unemployed and had “abandoned
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`all hope of any relief for this mortgage other than the January 15 repayment plan.” Id.
`
`
`
`On August 13, 2014, Chase asked the 219th District Court in Collin County to enter an
`
`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 8
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`

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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 15 of 37 PageID #: 892
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`order in the Rule 736 Action. Plaintiffs responded by filing this suit on October 2, 2014 and a
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`motion to dismiss in the Rule 736 Action on October 6, 2014. Ex. D-4. Plaintiffs continue to
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`reside in the Property, which has not been foreclosed. Ex. A at 7:3-9; Ex. C ¶ 17.
`
`STANDARD FOR SUMMARY JUDGMENT
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`Summary judgment is proper when, viewing the evidence in the light most favorable to
`
`the nonmovant, “there is no genuine issue as to any material fact and the moving party is entitled
`
`to judgment as a matter of law.” Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809
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`(5th Cir.1991); Fed. R. Civ. P. 56(c). If the moving party meets the initial burden of establishing
`
`there is no genuine issue, the burden shifts to the nonmoving party to produce evidence of the
`
`existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321-22 (1986). The
`
`nonmovant cannot satisfy his summary judgment burden with conclusory allegations,
`
`unsubstantiated assertions, or only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d
`
`1069, 1075 (5th Cir. 1994) (en banc). The nonmovant fails to demonstrate a genuine issue for
`
`trial where the record taken as a whole could not lead a rational trier of fact to find for the non-
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`moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
`
`ARGUMENT AND AUTHORITIES
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`Plaintiffs’ breach of contract claim fails as a matter of law.
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`Plaintiffs’ breach of contract claim is premised solely on an alleged breach of the
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`A.
`
`
`
`Repayment Plan. Plaintiffs’ breach of contract claim fails as a matter of law because: (1) the
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`First Repayment Plan fails for lack of consideration; (2) Plaintiffs did not perform under the
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`Loan Agreement or the First Repayment Plan; (3) Plaintiffs have not been harmed by Chase’s
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`alleged breach of the First Repayment Plan; (4) Plaintiffs are not entitled to specific
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`performance; (5) to the extent the plan is construed as agreeing to waive any of Plaintiffs’
`
`DEFENDANT CHASE’S AMENDED MOTION FOR SUMMARY JUDGMENT – Page 9
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`

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`Case 4:14-cv-00695-ALM Document 45 Filed 01/19/16 Page 16 of 37 PageID #: 893
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`arrearage, that term was the result of mutual mistake; and (6) Chase did not waive its rights
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`under the Loan Agreement by accepting partial payments under the First Repayment Plan.
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`1. The First Repayment Plan fails for lack of consideration.
`
`
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`Plaintiffs’ breach of contract claim fails as a matter of law because the First Repayment
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`Plan fails for lack of consideration. A contract, including a contract modification, must “satisfy
`
`the traditional requirements of a meeting of the minds su