SAMVEL TOPCHIAN,
Appellant,
v.
JPMORGAN CHASE BANK, N.A., MARTIN, LEIGH, LAWS & FRITZLEN, P.C., and SELECT PORTFOLIO SERVICING, INC.,
Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) WD80472
OPINION FILED: November 21, 2017
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Patrick W. Campbell, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges
Samvel Topchian appeals the judgment of the Circuit Court of Jackson County, Missouri, granting summary judgment to JPMorgan Chase Bank, N.A. (Chase), Martin, Leigh, Laws & Fritzlen, PC (MLLF), and Select Portfolio Servicing, Inc. (SPS) on Topchian's claims of breach of contract (against Chase), violations of the Missouri Merchandizing Practices Act (MMPA) (against Chase, MLLF, and SPS), and common law fraud (against Chase). In granting Chase's motion for summary judgment, the circuit court concluded that Topchian's claims were
2 precluded by a judgment implementing the settlement of a federal class action and that a collateral attack on that judgment was inappropriate. In granting MLLF's and SPS's motions for summary judgment, the circuit court held that those parties were released from Topchian's MMPA claims by the prior judgment. On appeal, Topchian argues that the circuit court erred in granting summary judgment because: (1) the class action judgment was entered without personal jurisdiction over Topchian or adequate notice to him, (2) Topchian was denied adequate representation by counsel for the class, (3) Topchian was denied adequate representation by class representatives, (4) the class action settlement was the product of fraud, and (5) the claims released by the class action judgment are different from the claims Topchian asserts in this case. Finding that summary judgment is appropriate, we affirm. Background 1
On or about September 1, 2005, Topchian borrowed $221,000, as evidenced by a 30-year deed of trust bearing his signature and referencing a promissory note he signed to document the loan. Chase serviced the loan at all times relevant to the events forming the basis of Topchian's claims. Topchian experienced financial difficulties, and, beginning in 2009, he participated in a Stated-Income Trial Period Plan (TPP) under the Home Affordable Modification Program (HAMP). The TPP required Topchian to submit "trial plan" payments to Chase as a prerequisite to a possible permanent loan modification. Topchian made trial payments under the TPP from May to December 2009. In December 2009, Topchian received a "Home Affordable Modification Agreement" from Chase. That Agreement stated that it would not take effect unless certain preconditions were satisfied, including (1) timely payments by Topchian, (2) continued accuracy of representations he had made, and (3) receipt by Topchian of a copy of the
1 "When considering an appeal from summary judgment, this court reviews the record in the light most favorable to the party against whom judgment was entered." St. Anthony's Med. Ctr. v. H.S.H., 974 S.W.2d 606, 609 (Mo. App. E.D. 1998).
3 Agreement bearing Chase's signature. It is undisputed that Topchian never received a copy of the Agreement signed by Chase. 2
Pursuant to the TPP, Topchian made payments at the lower, modified rate throughout 2010, but, beginning in January 2011, Chase refused to accept his payments. Previously, on June 8, 2010, Chase had sent Topchian a letter stating, "we are not considering your request for a modification because you notified us that you are withdrawing your request or you have failed to accept the Trial Period Plan or Home Affordable Modification within the required time period." Then, in December 2010, Chase apparently contacted Topchian to update his paperwork so he could receive a signed copy of the modification from Chase. Again on February 9, 2011, Chase informed him, "We are writing about your request for a permanent loan modification on the account above. We are unable to offer you a modification through [HAMP] at this time." On August 19, 2011, and August 22, 2011, Chase again provided the same written notice of modification denial to Topchian. MLLF signed an engagement letter with Chase on April 12, 2011, agreeing to act as attorney for Chase, represent it in bankruptcy and foreclosure matters, and provide legal services and representation. MLLF, as Chase's attorney and trustee, sent correspondence to Topchian regarding his failure to make payments pursuant to the original note. Specifically, on February 6, 2012, MLLF sent Topchian a letter stating "[MLLF] has been retained by JPMorgan Chase Bank, National Association to act as trustee to foreclose the above Deed of Trust." Then
2 Topchian alleges that he and Chase entered into a permanent mortgage modification agreement based on the following: (1) he signed and returned the Home Affordable Modification Agreement to Chase within the time period provided; (2) he complied with the modification agreement by paying the agreed amount for March through December 2010, and those payments were accepted by Chase; and (3) Chase employees assured him over the telephone that he had a permanent modification even though he never received a copy signed by Chase. Chase disputes Topchian's assertion that he had a permanent mortgage modification agreement. For the reasons we discuss below, we agree with the circuit court that the disputed fact of whether Topchian obtained a permanent mortgage modification is not material. Therefore, the existence of this disputed fact does not negate the propriety of summary judgment.
4 on February 29, 2012, MLLF sent Topchian a "Notice of Trustee's Sale" signed by MLLF as "Successor Trustee." 3 There has been no foreclosure sale on the property securing Topchian's loan. Meanwhile, in October 2011, cases in which various plaintiffs had sued Chase in separate lawsuits in 2010 and 2011 were consolidated into a multi-district class action lawsuit styled JPMorgan Chase Mortgage Modification Litigation, MDL Docket No. 2290, Case No. 1:11-md- 02290-RGS, in the United States District Court for the District of Massachusetts. The consolidated actions pertained to Chase's handling of mortgage borrowers' requests for modifications of their loans. Following consolidation, plaintiffs filed an amended class action complaint on January 20, 2012. Part I of the class action complaint asserted claims for breach of contract and violations of state consumer protection statutes arising from Chase's alleged breach of TPP agreements under HAMP. Specifically, in Part I, the plaintiffs alleged that [i]n their TPP Agreements, proffered under HAMP, . . . Chase set forth a finite "trial period," and promised that successful compliance with the [A]greement would result in the tender of a permanent loan modification. Plaintiffs, for their part, have fully complied with these [A]greements by submitting the required documentation and making payments. Despite Plaintiffs' full performance, Chase has failed to meet its contractual obligation to tender promised permanent modifications, or even to notify Plaintiffs by the trial period deadline that they would not be receiving a permanent modification.
Part III of the class action complaint included three underlying complaints involving claims that Chase breached final loan modification agreements either by continuing to treat the accounts as if no modification had occurred or by canceling the modifications without notice several months
3 Topchian claims that MLLF acted as a debt collector and "servicer" in the transaction with Chase, and, in support of his MMPA claim against MLLF, he lists "duties" MLLF was to perform as an alleged "debt collector." Topchian does not cite any authority for his interpretation of MLLF's legal status or duties, and his interpretation conflicts with both the engagement letter between Chase and MLLF and correspondence from MLLF to Topchian.
5 after the modifications had been granted. 4 Part III set out claims for breach of contract and violations of state consumer protection laws, including the MMPA, arising from Chase's failure to honor such modification agreements. The class action complaint specifically referenced the MMPA because two of the named plaintiffs were residents of Missouri. The class action complaint also alleged violations of common law. On June 15, 2012, Topchian filed a pro se petition in the Small Claims Court of the Circuit Court of Jackson County, Missouri, seeking $3 million in damages from Chase for breach of contract. His petition was in the form of a letter that set out detailed facts but did not provide any legal basis for his claims. Chase removed the case to the U.S. District Court for the Western District of Missouri on the basis of diversity jurisdiction. Chase then filed a motion to dismiss or, in the alternative, a motion for a more definite statement. The district court denied the motion to dismiss but granted the motion for a more definite statement, directing Topchian to amend his petition. His amended petition included some additional facts, but no legal theories, and Chase moved to dismiss the amended petition under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The district court granted the motion to dismiss and later denied Topchian's motion for reconsideration. He appealed the dismissal of his amended petition to the U.S. Court of Appeals for the Eighth Circuit. While Topchian's appeal was pending, his current attorneys agreed to represent him. The Eighth Circuit reversed, in part, and remanded the district court's grant of Chase's motion to dismiss, finding that Topchian had
4 Donna Follmer, a plaintiff in one of the three underlying complaints involving alleged final loan modification agreements, is identified as a Class Representative in the Settlement Agreement. Like Topchian, Follmer alleged that she had a loan modification agreement with Chase, Chase breached that agreement after accepting several payments from Follmer under the agreement, and Chase subsequently attempted to foreclose on her property. The plaintiffs in the other two underlying complaints involving modification agreements did not become members of the Settlement Class.
6 stated a claim for breach of contract. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 851 (8th Cir. 2014). 5
While Topchian's pro se case was pending, SPS became the sub-servicer of Topchian's loan on May 3, 2013, under a Limited Power of Attorney. At that point, SPS became Chase's true and lawful Attorney-In-Fact with respect to Topchian's loan. In November 2013, the class representatives and Chase reached a Settlement Agreement in the federal class action, for which they jointly sought the court's approval. Consistent with the class action complaint, the Settlement Agreement included assertions that Chase "breached agreements with the Plain