Martin-Janson v. JP Morgan Chase Bank, N.A., 12-50380
| Decision Date | 15 July 2013 |
| Docket Number | No. 12-50380,12-50380 |
| Parties | GLORIA MARTIN-JANSON, Plaintiff-Appellant, v. JP MORGAN CHASE BANK, N.A., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Summary Calendar
Appeal from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and OWEN, and GRAVES, Circuit Judges.
*
Appellant Gloria Martin-Janson ("Martin-Janson") appeals the district court's dismissal of her claims for waiver and promissory estoppel arising from a foreclosure that Appellee JPMorgan Chase Bank, N.A. ("JPMorgan")1 hascommenced against her. We AFFIRM IN PART and REVERSE AND REMAND IN PART.
"Because this case was resolved on motion to dismiss, the allegations in the complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true." EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank, NA, 467 F.3d 466, 467 (5th Cir. 2006) (citation omitted). The facts discussed below utilize that standard.
In March 2007, Martin-Janson purchased her residence in Austin, Texas with a purchase-money mortgage. Martin-Janson made timely payments under the loan until 2009, when both she and her husband became ill and missed two consecutive monthly payments. As a result, Martin-Janson received a foreclosure notice. She filed for bankruptcy in July 2009, which stayed the foreclosure proceedings. Under the bankruptcy plan, Martin-Janson was required to continue making her monthly mortgage payments. She made some of the monthly payments but not all of them. In November 2009, JPMorgan requested that the bankruptcy court lift the automatic stay of foreclosure proceedings. After Martin-Janson continued to miss payments on her loan, the bankruptcy court lifted the stay of foreclosure in May 2010.
Meanwhile, between July 2009 and February 2011, Martin-Janson was engaged in extensive communication with JPMorgan to modify her loan. During this time, JPMorgan representatives repeatedly assured her that she would receive a loan modification and that a modification was imminent. JPMorgan also instructed Martin-Janson not to make monthly payments until the bank approved the modification, at which time her monthly payments would resume. She attempted to remit payment to JPMorgan on several occasions but the bank would not accept the payments and sent them back to her. JPMorgan informedMartin-Janson that it would not credit any payments to her account while her account was under review for modification. Instead, the bank's representatives informed her that the arrears would be rolled over into the modified loan. JPMorgan also informed Martin-Janson that not making payments was a precondition for approval of her loan modification. During the course of her correspondence with various representatives from JPMorgan, Martin-Janson submitted at least five applications for a loan modification, because JPMorgan informed her on different occasions that information or documents were missing from her previously-submitted applications.
When Martin-Janson contacted JPMorgan again in early 2011 to ask why she could not make payments, the bank suggested that she place the money in escrow in order to be able to make payments once the modification was approved. As a result, she saved between $5,000 and $6,000 in anticipation of approval of the modification. However, in February 2011, JPMorgan sent Martin-Janson an acceleration warning letter. Martin-Janson thereafter contacted JPMorgan to ask why she was receiving pre-foreclosure letters. The bank's representatives continued to assure her that a modification was forthcoming and that they sent the letters in error. However, JPMorgan sent a formal notice of acceleration and trustee's sale on June 11, 2011.
On June 29, 2011, Martin-Janson filed the first of two lawsuits challenging the foreclosure in Texas state court. JPMorgan removed that action to the district court on July 12, 2011. In that first action, Martin-Janson brought claims for: 1) a declaration that Defendants lacked standing and had no legal or equitable right to foreclose on the property; 2) promissory estoppel; 3) violations of the Texas Deceptive Trade Practices Act; and 4) negligent misrepresentation. On JPMorgan's motion to dismiss under Rule 12(b)(6), the district court dismissed all of Martin-Janson's claims, except for promissory estoppel. On the promissory estoppel cause of action, the court requested a more definitestatement regarding the statements and promises Martin-Janson was alleging that JPMorgan made to her. Following Martin-Janson's submissions to the district court and JPMorgan's response, the court dismissed Martin-Janson's promissory estoppel claim on January 11, 2012, but "not without serious misgivings." The district court concluded that Martin-Janson's promissory estoppel claim was barred under the statute of frauds and Texas law's restriction of such claims pertaining to loan agreements in excess of $50,000. The district court further suggested that Martin-Janson may have had a stronger claim for waiver, but that she had not pled waiver in her amended complaint.
The district court's dismissals of Martin-Janson's claims in the first action were without prejudice. On January 24, 2012, Martin-Janson filed a second suit in the district court, which is the action now pending before this court. In this suit, Martin-Janson again challenges JPMorgan's authority to foreclose upon her home by asserting claims of waiver and promissory estoppel. Martin-Janson alleges that JPMorgan waived its right to collect payments and to foreclose based on her 2009 default because of its refusal to accept her payments and failure to timely foreclose upon her home once the bankruptcy court lifted the stay of foreclosure in May 2010. With respect to promissory estoppel, Martin-Janson argues that JPMorgan's promises that she would be granted a loan modification prevent the bank from foreclosing on her home for the payments she missed between May 2010 and February 2011. On March 28, 2012, the district court granted JPMorgan's motion to dismiss these claims with prejudice. Martin-Janson timely appealed.
We review a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) de novo. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010) (citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to reliefthat is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).
In Texas, waiver is the "intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right." Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987) (citation omitted); see also Addicks Servs., Inc. v. GGP-Bridgeland, LP, 596 F.3d 286, 298 (5th Cir. 2010) (). "Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances." Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam) (citation omitted). "Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, . . . the question becomes one of law." Jernigan, 111 S.W.3d at 156-57; accord First Interstate Bank of Ariz., N.A. v. Interfund Corp., 924 F.2d 588, 595 (5th Cir. 1991) (citation omitted) (acknowledging that, under Texas law, "the issue of waiver becomes a matter of law only where material facts and circumstances are undisputed or clearly established and there is no room for argument or inference").
We agree with the district court that Martin-Janson's allegations fail to state a claim for declaratory relief on the basis of waiver for two reasons. First, the original loan agreement expressly precludes a finding that JPMorgan has waived its right to foreclose on the property based upon the bank's delaying its right to foreclose or foregoing timely payments for several months. Second, even if JPMorgan waived its rights to timely payments after May 2010, when it instructed Martin-Janson not to make payments pending a loan modification approval, it did not waive its right to accelerate the note based upon her pre-May 2010 default.
The language of the Note states:
Moreover, the Deed of Trust provides:
11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the original Borrower or Borrower's successors in interest from Borrower's obligations under the Note and this Security Instrument. Lender shall not be required to commence proceedings against any successor in interest or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy.
(emphasis added).
Accordingly, the terms of the loan agreement prove fatal to Martin-Janson's claim for a declaratory judgment that...
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