Michael G. May v. CITIMORTGAGE, INC. and ABN AMRO MORTGAGE GROUP, INC.

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0265n.06
No. 15-1061
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MICHAEL G. MAY
Plaintiff-Appellant,
v.
CITIMORTGAGE, INC. and ABN AMRO
MORTGAGE GROUP, INC.
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
OPINION
BEFORE: CLAY, GIBBONS, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Michael G. May appeals the district court’s grant
of summary judgment in favor of CitiMortgage, Inc. and ABN AMRO Mortgage Group, Inc.
(collectively CitiMortgage), holders of the mortgage on the home initially owned by May and his
wife.1 After he was awarded sole ownership of the property in divorce proceedings, May
attempted to effect a conditional mortgage refinance option. CitiMortgage refused, and May
brought breach of contract claims alleging substantial performance. The district court found that
May failed to fulfil an essential condition to qualify for refinancing—obtaining the signature of
his fellow borrower and now ex-wife. For the following reasons, we affirm the order of the
district court.
1CitiMortgage, Inc. is the successor by merger to ABN AMRO Mortgage Group, Inc.

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I. BACKGROUND
In July 2003, May and his then-wife Valerie May, borrowed $264,500.00 from CitiBank
and secured the loan with a mortgage on their condominium. By the terms of the mortgage, as
set forth in the Balloon Note (the Note), the Mays agreed to make a comparatively small monthly
payment each month for seven years, until the Note’s maturity date on August 1, 2010. At that
time, the remaining principal, more than $200,000.00, was to be paid in full. The mortgage
agreement included a conditional right to refinance, as set forth in the Balloon Note Addendum
(the Addendum) and the Balloon Rider.2 This option allowed the Mays to obtain a new loan
with a maturity date of August 1, 2033, provided that they satisfied the following conditions:
If I want to exercise the Conditional Refinancing Option at
maturity, certain conditions must be met as of the Maturity Date.
These conditions are: (a) I must still be the owner of the Property
subject to the Security Instrument (the “Property”); (b) I must be
current in my monthly payments and cannot have been more than
30 days late on any of the 12 scheduled monthly payments
immediately preceding the Maturity Date; (c) the New Note Rate
cannot be more than five percentage points above the Note Rate;
and (d) I must make a written request to the Note Holder as
provided in Section 5 below.
R. 39-2, PageID 560, Section 2. Section 5 of the Addendum instructed the borrowers on how to
exercise the conditional refinancing option:
If I meet the conditions of Section 2 above, I may exercise the
Conditional Refinancing Option by notifying the Note Holder no
later than 45 calendar days prior to the Maturity Date. The Note
Holder will calculate the fixed New Note Rate . . . . I will then
have 30 calendar days to provide the Note Holder with acceptable
proof of my required ownership. Before the Maturity Date, the
Note Holder will advise me of the new interest rate (the New Note
Rate), new monthly payment amount, and a date, time, and place at
which I must appear to sign any documents required to complete
the required refinancing.
2The Balloon Note Addendum and the Balloon Rider set forth identical conditions regarding the right to
refinance. As explained by the district court, “[t]he Rider is to the Mortgage as the Addendum is to the Note.”

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Id. at 561, Section 5.
The Note identified both Michael and Valerie as “borrowers,” as did the Addendum and
the Balloon Rider. The mortgage document itself likewise identified both Michael and Valerie
as “borrower” and respectively as “Husband and wife.” Both Michael and Valerie signed each
document.
Michael and Valerie divorced in April 2009. Michael was assigned the condominium
and, pursuant to the terms of their divorce, became “responsible for timely payment of the
mortgage” and agreed to “indemnify and hold Valerie May harmless from obligations.” Valerie
executed and delivered to Michael “a recordable Quit Claim Deed transferring her interest” to
him. Since this time, Michael and Valerie have not spoken. May knows only that his ex-wife “is
believed to be located somewhere in the State of Arizona.”
Prior to the original mortgage maturity date of August 1, 2010, May timely
communicated his desire to refinance and, pursuant to discussions with his CitiMortgage contact,
on two separate occasions transmitted copies of his divorce papers and quit claim deed.
CitiMortgage twice sent revised refinance contracts that erroneously identified the borrowers as
married. On August 25, almost a month after the deadline, May finally received a revised copy
of the contract (the Loan Modification). However, this version identified the borrowers as
“Michael G. May, a single person, and Valerie May, a single person.” May timely returned the
Loan Modification bearing only his signature despite the instruction that “[a]ll Borrowers listed
on the enclosed Balloon Loan Modification” must sign.
CitiMortgage refused to process the Loan Modification without Valerie’s signature and
contacted May again on September 15, 2010, to explain that either Valerie must sign the
refinance contract or submit a Release of Liability form. This appears to be the first mention of

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such a form by CitiMortgage. May submitted the Release of Liability form and $900 check for
processing sometime after November 8, 2010, understanding the form to require his signature
alone. Apparently, the form and check were not processed and May asserts that CitiMortgage
lost them.
Since that time, May has remained on the property. He has continued to pursue the issue
with CitiMortgage and made additional monthly payments totaling approximately $13,000 as of
2012. He asserts that CitiMortgage has returned a number of the checks or accepted them but
placed them in an unapplied escrow account.
In August 2012, despite Valerie’s absence, CitiMortgage offered May a loan
modification addressed to him as the sole borrower with a modified principal amount
approximately $23,000.00 higher than the principal as of August 2010. May objected to a
modification predicated on his alleged default rather than a reset (refinancing) and rejected the
offer.
On September 18, 2012, May filed a cause of action for breach of contract in Michigan
state court based primarily on CitiMortgage’s refusal to refinance his mortgage, its alleged
“deliberate[]” loss of his paperwork, and the 2012 offer to modify the loan at a higher interest
rate and principal balance.3 CitiMortgage removed the case to federal court and unsuccessfully
sought to join Valerie as a necessary party.
In May 2014, CitiMortgage moved for summary judgment, which the district court
granted on December 17, 2014. At that time, the district court also denied May’s motion to
3Though the complaint listed its requests for damages and relief “under theories of promissory estoppel” as
well as breach of contract, no further mention of promissory estoppel—either in the complaint or response to
summary judgment—was made. For this reason, the district court found the claim to be forfeited. May also fails to
raise the matter on appeal, therefore, to the extent this argument was ever offered, we consider it waived. See
Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989) (“We normally decline to consider issues not raised in the
appellant’s opening brief.”).

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amend his complaint to include a claim under the Fair Credit Reporting Act (FCRA), which May
filed after CitiMortgage moved for summary judgment. The proposed amended complaint
alleged that CitiMortgage falsely reported that May was in default to credit agencies, but did not
specify any particular provision of the FCRA. To the extent this constituted a cause of action
under 15 U.S.C. § 1681s-2(b), the district court found it was futile, as May failed to allege that
he had notified any credit reporting agency of the false reporting or that an agency had contacted
CitiMortgage regarding the dispute. See Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 615-16
(6th Cir. 2012) (explaining that “consumers may step in to enforce their rights only after a
furnisher has received proper notice of a dispute from a [consumer reporting agency]”). The
district court denied May’s subsequent motion for reconsideration, at which time May filed his
notice of appeal to this court.
On appeal, May asserts that a genuine issue of material fact exists as to whether he
substantially performed the conditions to refinance and that the district court erred by not
considering this argument.4 CitiMortgage responds that the doctrine of substantial performance
does not apply to express contractual obligations and that Valerie’s signature was a condition
precedent. Even if substantial performance did apply to this situation, CitiMortgage contends,
May committed the first material breach when he failed to pay the Note by the maturity date.
II. ANALYSIS
The district court’s grant of summary judgment is reviewed de novo. Laster v. City of
Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014). Summary judgment is appropriate only where
the record shows there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). The burden lies with the party seeking
4May does not appear to independently challenge the district court’s ruling regarding his motion to amend
the complaint to add an FCRA claim.

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summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and we view the
evidence in the light most favorable to the non-moving party, drawing all justifiable inferences in
their favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Essentially, this inquiry
looks to “whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
Because the case was removed to federal court on the basis of diversity jurisdiction, we
look to the substantive law of Michigan, the forum state, and apply federal procedural law. See
Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009). To prevail on a breach of
contract claim under Michigan law, the plaintiff must establish the existence of a valid contract,
the terms of the contract, that the defendant breached those terms, and that the plaintiff was
injured as a result. In re Brown, 342 F.3d 620, 628 (6th Cir. 2003). Where the language of the
contract is unambiguous, its meaning is a question of law. Port Huron Educ. Ass’n. v. Port
Huron Area Sch. Dist., 550 N.W.2d 228, 237 (Mich. 1996).
May’s complaint alleges that CitiMortgage committed a breach of contract by “[f]ailing
to honor their modification which was accepted by [May] after being drafted and submitted by
CitiMortgage to [him].” However, Valerie’s signature aside, the Loan Modification was never
signed by a CitiMortgage representative and does not constitute a valid contract. See Trombley
v. Seterus Inc., 614 F. App’x 829, 832 (6th Cir. 2015) (“Under Michigan’s statute of frauds, a
financial institution’s promise regarding financial accommodation, like a loan modification, is
void unless it is (1) in writing and (2) signed with an authorized signature by the party to be
charged with the promise.”) (citing Mich. Comp. Laws § 566.132(2)(c)). Thus, the Loan
Modification cannot form the basis of May’s breach of contract claim. See Thabata v. Bank of
America, N.A., 620 F. App’x 467, 470 (6th Cir. 2015) (finding the contract-based doctrine of

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substantial performance inapplicable where neither the borrower nor the lender signed the trial
period plan for a mortgage modification).
May’s Response in Opposition to Summary Judgment reframed more generally his
breach of contract argument by referencing CitiMortgage’s failure to refinance the mortgage.
The district court interpreted his argument to allege a breach of the Addendum and undertook the
summary judgment analysis on this basis. May contends that he himself satisfied all of the
conditions for refinancing set forth in the Addendum and, to the extent that Valerie’s signature is
also a condition, it is “irrelevant and impossible.”
While sympathetic to May’s plight, we disagree with his reasoning. According to the
plain language of the Note—a contract entered into by May, his ex-wife, and CitiMortgage—the
conditional right to refinance was granted to the borrowers. An agreement between the two to
shift the allocation of responsibilities that both had undertaken did not change the terms of their
contract with CitiMortgage. As set forth in the Note:
If more than one person signs this Note, each person is fully and
personally obligated to keep all of the promises made in this Note,
including the promise to pay the full amount owed. . . . Any person
who takes over these obligations … is also obligated to keep all of
the promises made in this Note. The Note Holder may enforce its
rights under this Note against each person individually or against
all of us together. This means that any one of us may be required
to pay all of the amounts owed under this Note.
R. 39-1, PageID 558. Moreover, CitiMortgage retained the right to require immediate payment
in full if any interest in the property was sold or transferred without its prior written consent.
May’s reliance on the doctrine of substantial performance is inapposite where the plain
language of the loan documents requires Valerie’s signature as a borrower to exercise the
conditional refinancing option. As for May’s assertion that his substantial performance
argument was not considered below, our reading of the order indicates that the district court did

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consider it and simply disagreed. See R. 40, PageID 602 (“Although May repeatedly stresses
that he met the conditions set forth in the Addendum, he overlooks critical language in that
agreement requiring Valerie’s signature.”).
As stated in the Addendum, refinancing requires the borrower to appear and “sign any
documents required to complete the refinancing.” While this requirement may, unfortunately, be
“impossible” in May’s situation, it is not “irrelevant,” as he contends on appeal. A lender may
contract for the participation of two borrowers, each presumptively with his or her own earning
power, who are held jointly and severally liable for their associated obligations.
We can identify no genuine issue of material fact regarding whether the conditions to
refinance were satisfied and instead concur with the decision below that CitiMortgage is entitled
to judgment as a matter of law.
III. CONCLUSION
Based on the foregoing reasoning, we affirm the order of the district court.

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