UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia DiCarlo-Fagioli

v. Civil No. 14-cv-372-JD Opinion No.

JP Morgan Chase Bank, N.A.

O R D E R

Patricia DiCarlo-Fagioli brought a petition in state court

to enjoin the scheduled foreclosure sale of her home by JP

Morgan Chase Bank (“Chase”). After the state court enjoined the

foreclosure sale, Chase removed the case to this court. Chase

now moves for summary judgment. DiCarlo-Fagioli did not file a

response to the motion for summary judgment.

Standard of Review

Summary judgment is appropriate when “the movant shows that

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); Santangelo v. New York Life Ins. Co.,

(1st Cir. 2015). “A genuine issue is one that can be

resolved in favor of either party, and a material fact is one

which has the potential of affecting the outcome of the case.” Jakobiec v. Merrill Lynch Life Ins. Co.,

(1st

Cir. 2013) (internal quotation marks omitted). In deciding a

motion for summary judgment, the court draws all reasonable

factual inferences in favor of the nonmovant. Kenney v. Floyd,

(1st Cir. 2012).

Under the local rules of this district, the party moving

for summary judgment must file a memorandum in support of the

motion that includes a factual statement with appropriate record

citations. LR 56.1(a). To oppose summary judgment, the

nonmoving party also must file a memorandum that includes a

factual statement with appropriate record citations. LR

56.1(b). When the nonmoving party fails to properly oppose the

facts in the moving party’s factual statement, the nonmoving

party is deemed to have admitted the properly supported facts in

the moving party’s factual statement. LR 56.1(b); Fed. R. Civ.

P. 56(e)(2).

Because DiCarlo-Fagioli did not file a response to Chase’s

motion for summary judgment, she is deemed to have admitted the

properly supported facts in Chase’s factual statement.

Background

In 2003, DiCarlo-Fagioli obtained a loan and executed a

mortgage on property in Salem, New Hampshire. Chase holds the

2 note and the mortgage.1 DiCarlo-Fagioli applied for loan

modifications in 2009 and 2010.

After those applications were denied, DiCarlo-Fagioli

applied for loan modification through the “Making Homes

Affordable” program. In November of 2010, Chase offered

DiCarlo-Fagioli a three-month trial payment plan. When she

completed the trial successfully, Chase sent DiCarlo-Fagioli a

permanent loan modification agreement in March of 2011.

DiCarlo-Fagioli signed the March agreement and returned it to

Chase. Chase did not sign the March agreement, and the

agreement was cancelled.

On June 14, 2011, Chase sent DiCarlo-Fagioli a letter to

notify her that the March agreement had been cancelled. In

December of 2011, Chase sent DiCarlo-Fagioli a new modification

agreement with lower payments than the March agreement. Chase

did not receive a signed copy of the December agreement from

DiCarlo-Fagioli. As a result, Chase sent DiCarlo-Fagioli a

letter in February of 2012 to notify her that the December 2011

agreement was denied because she had not returned a signed

agreement. After two more failed attempts at loan modification,

the Federal Home Loan Mortgage Company, which now holds the

1 The note and mortgage were originally held by Chase Manhattan Mortgage Corporation, which became JP Morgan Chase Bank through a series of mergers.

3 mortgage, began foreclosure proceedings on the property in July

of 2013.2

Discussion

In her amended complaint, DiCarlo-Fagioli alleges claims of

breach of contract and promissory estoppel, arising from Chase’s

decision not to approve a loan modification agreement in 2011.3

Chase moves for summary judgment on the grounds that both claims

are time barred and, alternatively, that DiCarlo-Fagioli cannot

prove either claim. As noted above, DiCarlo-Fagioli did not

file a response to the motion for summary judgment.

A. Statute of Limitations

DiCarlo-Fagioli’s claims of breach of contract and

promissory estoppel are governed by New Hampshire’s statute of

limitations, RSA 508:4, which applies to “all personal actions”

except slander and libel. See, e.g., Sykes v. RBS Citizens,

N.A.,

(D.N.H. 2015). Under RSA 508:4,

DiCarlo-Fagioli was required to bring her claims “within 3 years

of the act or omission complained of” unless the discovery rule

Chase assigned the mortgage to the Federal Home Loan 2

Mortgage Company in October of 2012.

The injunction against foreclosure issued by the state court 3

was dissolved by this court on November 24, 2014. DiCarlo- Fagioli no longer seeks injunctive relief against foreclosure. proceedings.

4 would apply or another ground for tolling the limitations period

existed. RSA 508:4. DiCarlo-Fagioli has not raised the

discovery rule or any ground for tolling the limitations period.

Chase contends that DiCarlo-Fagioli alleges for purposes of

her breach of contract claim and her promissory estoppel claim

that Chase failed to perform under the March 2011 loan

modification agreement.4 Chase argues that DiCarlo-Fagioli had

notice through the June 14, 2011, letter that the loan

modification agreement had not been approved. Because DiCarlo-

Fagioli did not bring suit until August 25, 2014, Chase asserts

that her claims are time barred.

In the absence of any response from DiCarlo-Fagioli, the

properly-supported facts provided by Chase are deemed to be

admitted. DiCarlo-Fagioli has not argued that the “act or

omission complained of” occurred after June 14, 2011, nor has

she raised any grounds to toll the statute of limitations.

Therefore, based on the record presented, the claims were filed

too late.

B. Claims on the Merits

Chase also seeks summary judgment on the ground that

DiCarlo-Fagioli cannot prove either of her claims. In support,

As alleged, the claims arise from the March 2011 loan 4

modification agreement.

5 Chase asserts that no contract existed, so that no breach

occurred, and that no evidence supports a promissory estoppel

claim. Even if the claims were not time barred, they would not

survive summary judgment on the merits.

1. Breach of Contract

“A valid, enforceable contract requires offer, acceptance,

consideration, and a meeting of the minds.” Tessier v.

Rockefeller,

(2011). “A breach of contract

occurs when there is a failure without legal excuse to perform

any promise which forms the whole or part of a contract.”

Audette v. Cummings,

(2013) (internal

quotation marks omitted).

In her amended complaint, DiCarlo-Fagioli alleges that she

accepted Chase’s offer of a Loan Modification Agreement on March

3, 2011. Without providing a date, DiCarlo-Fagioli alleges that

“Chase breached the permanent Loan Modification Agreement by not

honoring the loan modification agreement, attempting to

unilaterally revise the contract because of Chase’s sole

mistake, after the contract became binding.”

DiCarlo-Fagioli acknowledged at her deposition, however,

that the loan agreement explicitly stated that the loan would

not be modified unless Chase accepted the agreement by signing

it and sending a copy to her. She conceded that the agreement

6 she signed was not signed by Chase. She also acknowledged that

Chase sent her the June 14 letter, notifying her that her loan

modification had been denied.

In the absence of a loan modification agreement signed by

Chase, DiCarlo-Fagioli’s loan was not modified. As no contract

existed, none was breached.

2. Promissory Estoppel

The doctrine of promissory estoppel supports a cause of

action when a party makes a promise and the recipient of the

promise reasonably relies on the promise to her detriment. Pro

Mod Realty, LLC v. U.S. Bank Nat’l Ass’n,

,

, at *1 (D.N.H. Apr. 9, 2014) (citing Panto v. Moore Bus.

Forms, Inc.,

(1988)). As such, under New

Hampshire law, a claim of promissory estoppel is limited to

reasonable and detrimental reliance. Ruivo v. Wells Fargo Bank,

N.A.,

(1st Cir. 2014).

DiCarlo-Fagioli alleges that Chase promised that it would

modify her loan or already had modified the loan and that those

representations were intended to induce her to make payments and

to forego “other remedies, solutions or strategies.” She

further alleges that she relied on those promises and, in

reliance, made payments to Chase and did not pursue “other

remedies, solutions or strategies.” She contends that her

7 reliance was reasonable because of the language in the loan

modification agreement and oral representations made by Chase

representatives.

Chase contends that DiCarlo-Fagioli did not reasonably or

detrimentally rely on any promise to modify the loan. An offer

to consider loan modification is not a promise for purposes of

promissory estoppel. Ruivo,

; see also Leonard v.

PNC Bank, NA,

, at *19 (D. Mass. Mar. 18, 2014).

Further, making payments on a mortgage, modified or not, is not

detrimental reliance because DiCarlo-Fagioli was required to

make mortgage payments to avoid foreclosure. Cf. Dixon v. Wels

Fargo Bank, N.A.,

(D. Mass. 2011)

(finding detrimental reliance where mortgagor stopped making

payments in reliance on bank’s promise of loan modification and

bank then foreclosed). In addition, DiCarlo-Fagioli has not

shown that she lost any other remedies, solutions, or strategies

to avoid foreclosure on her home. See MacKenzie v. Flagstar

Bank, FSB,

(1st Cir. 2013); Pro Mod Realty,

LLC,

, at *3.

Therefore, Chase is entitled to summary judgment on

DiCarlo-Fagioli’s promissory estoppel claim.

8 Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 12) is granted. The defendant’s

motion to compel discovery (document no. 14) is terminated as

moot.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

October 20, 2015

cc: Dawn E. DiManna, Esq. Nathan Reed Fennessy, Esq.

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