Pittman v. Experian Info. Solutions, Inc.
901 F.3d 619
| 6th Cir. | 2018Background
- Pittman obtained a HAMP Trial Period Plan (TPP) from servicer iServe after missing two mortgage payments; he made the three required trial payments and continued reduced payments, but no written permanent modification was sent before servicing transferred to BSI.
- After transfer, BSI sent default notices and reported Pittman’s mortgage payments as overdue to CRAs; Pittman disputed the reports with the CRAs and alleged the servicers failed to investigate or correct reporting.
- Emails between iServe and BSI and communications with Pittman’s counsel indicated iServe acknowledged the trial modification and that a permanent modification should have been issued.
- Pittman sued under the FCRA (15 U.S.C. §§ 1681n, 1681o) for negligent and willful violations and sued BSI for breach of contract; district court granted summary judgment to both servicers and denied Pittman’s motions to amend and to compel depositions.
- The Sixth Circuit reversed in part: it held Pittman had raised triable issues that (1) the TPP could be an enforceable unilateral offer accepted by performance and (2) the servicers’ failure to report the TPP rendered reporting potentially incomplete; it also held Pittman’s two missed payments were not a substantial breach as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reporting was inaccurate or incomplete under FCRA §1681s‑2(b) | Pittman: servicers reported him delinquent without noting the TPP, making reports incomplete and misleading | Servicers: no reporting error because no enforceable permanent modification existed and he missed payments | Court: Plaintiff met threshold for inaccuracy/incompleteness because (a) there may have been an enforceable modification and (b) servicers failed to report existence of TPP; remanded for reasonableness of investigations |
| Whether the TPP constituted an enforceable offer creating a permanent modification upon performance | Pittman: TPP promised a permanent modification if trial payments and documents were timely provided — he performed | Servicers: TPP was not a binding permanent modification; required further action and writing | Court: TPP constituted an offer for a unilateral contract; Pittman’s performance raised a triable issue whether servicer was obligated to send a permanent modification |
| Whether the TPP satisfies Michigan’s statute of frauds signature requirement | Pittman: the TPP, signed “Sincerely, Loss Mitigation Department iServe Servicing Inc.”, can authenticate and bind the servicer | Servicers: a typewritten institutional name is not an authorized signature under §566.132(2) | Court: a fact question exists whether the typewritten line authenticated the TPP; Michigan Supreme Court would likely allow non‑handwritten institutional signatures if intended and authorized; remanded to resolve factual issue |
| Whether Pittman’s prior missed payments constituted a first "substantial breach" barring his breach‑of‑contract claim against BSI | Servicers: Pittman’s two missed payments were substantial, so he cannot sue for BSI’s alleged nonperformance | Pittman: missed payments were not a substantial breach; mortgage contemplated default and notice/curative procedures | Court: two missed payments were not a substantial breach as a matter of law; reversal of summary judgment on breach claim and remand |
Key Cases Cited
- Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (U.S. 2007) (FCRA’s purposes and framework)
- Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611 (6th Cir. 2012) (distinguishing furnishers’ duties and dispute‑response duties under §1681s‑2)
- Spence v. TRW, Inc., 92 F.3d 380 (6th Cir. 1996) (inaccuracy is essential to certain FCRA claims)
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012) (TPP can be enforceable offer for permanent HAMP modification)
- Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st Cir. 2013) (TPP’s mandatory language can obligate servicer to offer permanent modification)
- Corvello v. Wells Fargo Bank, N.A., 728 F.3d 878 (9th Cir. 2013) (bank obligated under TPP to offer permanent modification after compliance)
- Oskoui v. J.P. Morgan Chase Bank, N.A., 851 F.3d 851 (9th Cir. 2017) (TPP performance obligates servicer to abide by its language regarding modification)