760 F.3d 843 (8th Cir. 2014), 13-2128, Topchian v. JPMorgan Chase Bank, N.A.

Docket Nº:13-2128
Citation:760 F.3d 843
Opinion Judge:WOLLMAN, Circuit Judge.
Party Name:Samvel G. Topchian, Plaintiff - Appellant v. JPMorgan Chase Bank, N.A., Defendant - Appellee
Attorney:For Samvel G. Topchian, Plaintiff - Appellant: Alicia Anne Campbell, John E. Campbell, Erich Vieth, CAMPBELL LAW, LLC, Saint Louis, MO. Samvel G. Topchian, Plaintiff - Appellant, Pro se, Kansas City, MO. For JPMorgan Chase Bank, N.A., Defendant - Appellee: Jennifer A. Donnelli, Thomas E. Nanney, ...
Judge Panel:Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
Case Date:July 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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760 F.3d 843 (8th Cir. 2014)

Samvel G. Topchian, Plaintiff - Appellant


JPMorgan Chase Bank, N.A., Defendant - Appellee

No. 13-2128

United States Court of Appeals, Eighth Circuit

July 28, 2014

Submitted March 12, 2014

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[Copyrighted Material Omitted]

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Appeal from United States District Court for the Western District of Missouri - Kansas City.

For Samvel G. Topchian, Plaintiff - Appellant: Alicia Anne Campbell, John E. Campbell, Erich Vieth, CAMPBELL LAW, LLC, Saint Louis, MO.

Samvel G. Topchian, Plaintiff - Appellant, Pro se, Kansas City, MO.

For JPMorgan Chase Bank, N.A., Defendant - Appellee: Jennifer A. Donnelli, Thomas E. Nanney, BRYAN & CAVE, Kansas City, MO.

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.


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WOLLMAN, Circuit Judge.

Samvel G. Topchian appeals from the district court's dismissal of his amended complaint against JPMorgan Chase Bank (Chase). Because we hold that Topchian has stated a claim for breach of contract, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

We recount the facts as described in the amended complaint and in the permanent loan modification agreement (the Agreement) that Topchian attached to his petition. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) ( " [A]n amended complaint supercedes an original complaint and renders the original complaint without legal effect." ); see also Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003) ( " [I]n considering a motion to dismiss, the district court may sometimes consider materials outside the pleadings, such as materials that are necessarily embraced by the pleadings and exhibits attached to the complaint." ). The amended complaint fails to set forth facts detailing the origins of Topchian's relationship with Chase. Presumably, Topchian entered into a loan agreement with Chase for a mortgage and subsequently encountered financial difficulties that prevented him from making the full payments under the loan agreement. As a result, Topchian entered into the mortgage modification process with Chase under the Home Affordable Modification Program (HAMP).

HAMP modifications proceed in two steps.1 Step One involves the mortgage servicer of an eligible homeowner offering the homeowner a Trial Period Plan (TPP) agreement. A TPP agreement allows the homeowner to make modified mortgage payments for a specified term. If all conditions of the TPP agreement are satisfied, the homeowner then proceeds to Step Two, at which point he is offered a permanent loan modification agreement that outlines the terms of the final modification.

Under the TPP agreement, Topchian made seven required monthly payments of $985, making the last payment in December 2009. In January 2010, Topchian received the Agreement from Chase for the permanent modification of his loan. The Agreement provided that Topchian's loan modification would automatically become effective on March 1, 2010, as long as all the preconditions set forth in the Agreement were satisfied. Two of these preconditions

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are relevant to this appeal. First, the loan would not be modified unless and until Chase signed and returned a copy of the Agreement to Topchian. Second, Topchian was required to make all the payments specified by the TPP agreement. Topchian signed the Agreement and mailed it to Chase before the January 14, 2010, deadline. Less than a week after mailing the Agreement, Topchian called Chase to check on the status of the Agreement, at which point Chase assured him that the Agreement was in its processing center.

In March 2010, Topchian made his first monthly payment of $957.32 in accordance with the terms of the Agreement. Chase rejected this payment. Upon discovering that Chase had not accepted his payment, Topchian called Chase and spoke with Lad Freeman, an executive director. Freeman told Topchian that Chase had not received the signed Agreement.

Topchian immediately sent Chase another copy of the signed Agreement and payments for March and April 2010. Freeman apologized for the " mess," explaining that Chase's loan files were in disorder because of its recent merger with Washington Mutual Bank. Topchian sought proof of the finalization of the loan modification by requesting that Chase sign and return the Agreement to him. Freeman responded by assuring Topchian that the Agreement had been accepted, but informed Topchian that Chase would not send proof of this acceptance.

Chase accepted Topchian's March and April payments. Topchian continued to make payments, which Chase accepted for the following eight months, through December 2010. In December 2010, Topchian was contacted by Freeman, who notified him that he needed to send more paperwork to update his existing HAMP paperwork and that he would receive a signed copy of the Agreement from Chase after the paperwork was updated. Topchian cooperated with a Chase representative for several months to update his HAMP paperwork.

In January 2011, Chase instructed Topchian to stop making payments because of the paperwork update, which he did. Seven months later, in August 2011, Chase sent Topchian a letter denying his request for a loan modification. Following this letter, Chase attempted to foreclose on Topchian's property on at least two occasions.

On June 21, 2012, Topchian filed a pro se petition in Missouri state court seeking $3 million in damages from Chase. Topchian's petition was styled as a letter that detailed facts but did not contain legal theories for his claims. Chase removed the case to federal district court on the basis of diversity jurisdiction. Chase then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, a motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). The district court denied the motion to dismiss but granted the motion for a more definite statement, directing Topchian to file an amended complaint.

Topchian's amended complaint restated some of the facts from his petition and introduced new facts but still did not include legal theories for his claims. Chase moved to dismiss the amended complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Although Topchian had not mentioned any legal theories in his amended complaint, Chase proposed to the court six legal theories under which Topchian could conceivably seek recovery: violation of HAMP, negligent infliction of emotional distress, intentional infliction of emotional distress, attempted wrongful foreclosure, violations of the Fair Credit Reporting

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Act, and fraud. Chase argued in its motion to dismiss that each of these claims failed on the pleadings. Topchian did not file a response to Chase's motion before the deadline, and the district court ordered Topchian to show cause for why it should not grant Chase's motion to dismiss. Topchian thereafter filed a response, but it did not address any of Chase's six proposed legal theories. The district court then granted Chase's motion to dismiss, analyzing each of Chase's proposed legal theories and reasoning that HAMP creates no private right of action and that, to the extent that Topchian attempted to state a claim under Missouri law, Topchian had not pleaded a plausible claim under Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The district court later denied Topchian's motion for reconsideration. Topchian appeals.

II. Discussion

Topchian argues that the district court erred by dismissing his case because his allegations of fact sufficiently state a claim for breach of contract, fraudulent misrepresentation, negligent misrepresentation, and unjust enrichment. " We review de novo the district court's grant of a motion to dismiss, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the nonmoving party." Simes v. Ark. Judicial Discipline & Disability Comm'n, 734 F.3d 830, 834 (8th Cir. 2013) (quoting Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012) (per curiam)). Because Chase removed this case to federal court based on diversity of citizenship, we apply federal procedural rules but Missouri substantive law. Ashley County v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

" 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.'" Iqbal, 556 U.S. at 678 (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed.R.Civ.P. 8(a) (requiring " a short and plain statement of the claim showing that the pleader is entitled to relief" ). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. " Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).

" The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999) (quoting Redland Ins. Co. v. Shelter Gen. Ins. Cos., 121 F.3d 443, 446 (8th Cir. 1997)). " The well-pleaded facts alleged in the complaint, not the legal theories of recovery or legal conclusions identified therein, must be viewed to determine whether the pleading party provided the necessary notice and thereby stated a claim in the manner contemplated...

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