Opinion
Case No. 02-CV-10278-BC
December 4, 2003
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The Court acknowledges the valuable contribution and assistance of judicial intern Christopher Houbeck in completing this opinion.
The plaintiff in this case brought suit to enforce a loan obligation made by defendants Park Bowl, Inc. and James Goergen Bowling Company, Inc. and guaranteed by defendants James I. Goergen and Blanche J. Goergen that was originally underwritten by the Small Business Administration (SBA). The terms of the loan were modified by the approval of a plan of reorganization under Chapter 11 of the United States Bankruptcy Code; however, the defendants contend that the repayment terms as set forth in the plan were further modified in accordance with an oral agreement to defer principal and interest payments for several years. The Court finds that the subsequent discussions relating to modifying the loan repayment terms as outlined in the plan did not become effective absent approval by the Bankruptcy Court, and therefore no binding agreement to defer payment came into existence. Furthermore, the conversations and correspondence between the defendants and the SBA representative did not create a contract to modify the repayment terms or create an estoppel. The failure to make timely loan payments in accordance with the plan, thus, caused the loan to go into default, which has not been cured, and the plaintiff is entitled to summary judgment on the promissory note.
I.
The loan in this case was originated by defendant James Goergen in 1987 to finance the purchase of a bowling alley in Sanford, Michigan. Goergen was experienced as a businessman in the ownership and operation of bowling alleys. He negotiated the purchase of Northern Lanes for the purchase price of $850,000, for which he borrowed approximately $400,000 from Chemical Bank and obtained an additional loan from the East Central Michigan Development Corporation (ECMDC) for $261,000. The note sets forth monthly payments of $2,568.16 with a balloon payment on December 1, 2007 and contains an acceleration clause. Park Bowl, Inc. (Park Bowl) and James Goergen Bowling Company, Inc. (JGBC) were joint obligors on the promissory note, which was secured by a security agreement and mortgage on the property and was personally guaranteed by James I. Goergen and Blanche J. Goergen. After the loan was closed, ECMDC immediately assigned the note and collateral documents to the SBA, although ECMDC continued to service the loan.
The corporate defendants made all loan payments until they sold the bowling alley to Michael and Cheryl Koselansky in 1992. The sale of the land and business was made on an installment contract. The Koselanskys assumed the ECMDC and Chemical Bank notes, although Park Bowl and JGBC remained obligated on the debts. The Koselanskys initially serviced the debt, but after March 1995 failed to make any payments to the SBA or Chemical Bank. Chemical Bank sought foreclosure in early 1996 against the Koselanskys, Park Bowl and JGBC. To prevent the foreclosure, Park Bowl filed for protection under Chapter 11 of the United States Bankruptcy Code on February 29, 1996 in the United States Bankruptcy Court in the Eastern District of Michigan, Northern Division. The Koselanskys also filed for Chapter 11 protection and, in response, Park Bowl filed a motion to compel the Koselanskys to assume or reject the land contract, essentially asking the Koselanskys to reaffirm their obligation to the original purchase of the bowling alley. On July 28, 1996, the Bankruptcy Court granted Park Bowl's motion and ordered the Koselanskys to surrender possession of Northern Lanes to Park Bowl. When Park Bowl regained control, Goergen discovered that a large amount of capital had to be expended to repair and replace much of the removable equipment and to reinvigorate the bowling alley. Park Bowl then undertook to replace the television sets, bowling pins, and office equipment.
On December 5, 1996, Park Bowl submitted its First Amended Combined Disclosure Statement and Plan of Reorganization (the Plan) to the Bankruptcy Court. The Plan acknowledged the debt owed to the SBA in the amount of $215,665.82. The Plan did not alter the defendants' obligations as to the loan balance, but it did change the payment schedule. The Plan modified the original loan agreement by requiring Park Bowl to make payments to the SBA of $2,112.72 per month for the first six years and $5,247.00 per month for the next six years. This schedule would result in repayment of the loan in March 2009. Thereafter, any arrearage accrued prior to the implementation of the Plan would be paid off at the regular monthly payment rate established in the original loan agreement. The Bankruptcy Court confirmed the Plan on January 15, 1997.
When the Plan was approved, James Goergen's son, Rick, took over the day-to-day operation of the bowling alley, since James by that time was living in Iowa in semi-retirement. It is undisputed that Park Bowl made infrequent payments after February 1997, rather than standard monthly payments as required by the Plan. James Goergen was unaware that Park Bowl had been remiss in its payment obligations. In part, Goergen assumed that Park Bowl had been making payments because he never received any notification from the SB A of any delinquency or default. The parties acknowledge, however, that the SBA Guaranty signed by James and Blanche Goergen contains a waiver of notice provision.
The "modification" of the Plan's payment schedule, which is interposed by the defendants in opposition to the plaintiffs collection effort here, has its genesis in a telephone conversation in October 1997 between James Goergen and Harold Steinke, a loan officer with the ECMDC, which was servicing the loan for the SBA. Goergen testified that Steinke occasionally stopped by the bowling alley when James Goergen was there, and the two would discuss the business's financial struggle. Steinke told Goergen that the SBA was there to help. Then, according to Goergen's deposition testimony, Steinke telephoned Goergen in October and said that Park Bowl could defer its payments on the SBA note for six years, with the only detriment being the accrual of interest during that time period. Goergen expressed relief and excitement to Steinke and apprized Park Bowl's accountant, Mark McMahan, of the conversation. Goergen and Steinke did not discuss in that October phone conversation, however, when the six-year time period would begin or what payments and payment schedules would be required of Park Bowl at the end of the six years. McMahan contacted Steinke, who confirmed the specifics of his call to Goergen. McMahan believed that the information provided by Steinke differed from the requirements of the Plan.
Meanwhile, Goergen began receiving calls from Anthony Misko of the Detroit SBA office demanding payment on the note, and eventually claiming that the entire balance was due. Goergen asked Misko to talk to Steinke. Goergen's accountant, McMahan, also had conversations with Steinke, and McMahan requested that Steinke provide a written declaration of the payment schedule required of Park Bowl.
Steinke sent a letter dated October 22, 1997, which stated:
Enclosed please find a copy of Page 11 of the settlement agreement which covers your loan. Tony Misko, the servicing officer of the Detroit district office, has checked with their legal department and they have informed him that both principal and interest have been deferred until the end of six (6) years. Please call if you have any questions.
Pl.'s Mot. S.J. Ex. 10. The letter, however, did not contain a page from the loan settlement agreement; rather, it contained a page from the Chapter 11 Bankruptcy Plan. Also enclosed was a copy of a handwritten note dated October 22, 1997 from Anthony Misko of SBA's Detroit office to Steinke. The note stated:
Harold,
Hopefully the attached answers your question. It's my understanding interest and principal is [sic] deferred.
Tony
Ibid. Once again, the reference to the "attached" is to page 11 of the Plan, which contains the new payment schedule approved by the Bankruptcy Court, calling for monthly payments of $2,112.72 beginning with Plan confirmation and continuing for six years, and monthly payment of $5,247 for six years thereafter. The paragraph concludes: "To the extent that any arrearage has accrued on this claim, said arrearage shall be added to the end of the contract, and shall be paid off at the rate of whatever is a regular monthly payment due under the contract until said claim is paid in full." Ibid.
The defendant submitted a declaration from Anthony Misko in which he states that he had a telephone conversation with James Goergen "[d]uring or around 1998" wherein he told Goergen that he and Steinke were mistaken in believing that the Plan allowed deferral of the payments on the promissory note. Misko apparently has not been deposed or asked to explain the ostensible discrepancy between his handwritten note to Harold Steinke and his declaration.
On November 7, 1997, Goergen responded to Steinke and Misko's communication with a letter stating his thanks and appreciation, and went on to detail the financial difficulties caused by the Koselanskys. Goergen and McMahan testified that they believed that the parties had agreed to a six-year deferral, however, neither individual was certain of the beginning and ending dates of the deferral, or the payment schedule at the end of the six years.
Although Park Bowl made only infrequent payments on the loan, when payments did occur the SBA applied the entirety of all payments to principal, as opposed to the typical practice of applying payments first to interest as set forth in the original loan agreement. McMahan testified that this atypical method of applying payments suggested to him, in conjunction with his conversation with and letter from Steinke, that regularly monthly payments could indeed be deferred for six years.
On July 31, 2001, the SBA assigned the note and other related materials to LPP Mortgage, Ltd. LPP accepted assignment of the note "as amended or modified," as well as, "such other documents . . . that evidence, secure or otherwise relate to Assignor's right, title or interest in and to the Mortgage and/or the Note . . . that might be in effect." Pl.'s Mot. S. J. Ex. 5. LPP issued a Notice of Default on February 21, 2002, and it sought payment of the entire loan balance of $200,208.65. LPP apparently assumed the note with no knowledge of the conversation and letters between Steinke and Goergen discussing payment deferral. David Hendricks, loan officer for Beal Bank, the servicing agent for LPP, had contacted the defendants several times to inquire about their failure to make payments. Hendricks contends that at no time did Rick or James Goergen raise the issue of deferred payments; instead they spoke about getting their finances in order and catching up on their payment obligations. Via letter, dated April 23, 2002 from LPP Mortgage's debt collector, Orlans Associates, P.C., LPP notified the defendants of the acceleration of the loan balance. LPP then filed suit on October 29, 2002.
The parties filed cross motions for summary judgment. The parties presented their arguments through counsel in open court on August 21, 2003. The defendants maintain that the SBA, through its servicing agent, engaged in a post-plan modification of the repayment agreement and the plaintiff, as assignee, is estopped from declaring a default. The plaintiff argues that the modification is not supported by any consideration, and that there is no precise date for the beginning and end of the deferral period, rendering the "agreement" too vague to be enforceable.
II.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The parties have filed cross motions for summary judgment, and neither suggests that there are facts in dispute. Nonetheless, the Court must apply the well-recognized standards when deciding cross motions; "[t]he fact that the parties have filed cross-motions for summary judgment does not mean, of course, that summary judgment for one side or the other is necessarily appropriate." Parks v. LaFace Records, 329 F.3d 437, 444 (6th Cir. 2003). Thus, when this Court evaluates cross motions for summary judgment, it "must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party." Westfield lns. Co. v. Tech Dry, Inc., 336 F.3d 503, 506-07 (6th Cir. 2003).
A motion for summary judgment under Fed.R.Civ.P. 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).
There is no dispute that payments on the promissory note have not been made according to the Chapter 11 Plan. The contest here is framed by the defendants' claim that the payment schedule was modified to permit a six-year deferral, whereas the plaintiff insists that Steinke's conversations and letters are ineffective to alter the Plan's requirements.
A.
Although the corporate defendants and the ECMDC entered into a contract for the repayment of the loan in 1987, the terms of that contract were altered by the plan of reorganization approved by the bankruptcy court. The terms of the consummated plan governed the parties' rights and obligations after confirmation. See Evans v. Dearborn Machinery Movers Co., 200 F.2d 125, 127 (6th Cir. 1952) (noting that "[a] consummated reorganization plan in bankruptcy is binding even as against creditors who are not scheduled and who did not know of the proceedings"). Chapter 11 reorganization plans themselves are not immutable documents. However, the Bankruptcy Code sets forth requirements for the modification of plans at various stages of Chapter 11 proceedings.
For instance, the Bankruptcy Court may fix the date for submission by the debtor of a disclosure and a proposed plan of reorganization. See 11 U.S.C. § 105(d)(2)(B)(i). Once the plan is submitted, "[t]he proponent of a plan may modify such plan at any time before confirmation." 11 U.S.C. § 1127(a). When the modified plan is filed, it becomes the plan. Ibid. However, after confirmation, the plan may be modified by the debtor only in certain circumstances:
The proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan. . . . Such plan as modified under this subsection becomes the plan only if circumstances warrant such modification and the court, after notice and a hearing, confirms such plan as modified, under section 1129 of this title.11 U.S.C. § 1127(b). The statute thus allows the debtor to modify the plan after confirmation only if "substantial consummation" has not occurred. See In re Hayball Trucking, Inc., 67 B.R. 681 (Bankr. E.D. Mich. 1986). Even then, the modification does not become "the plan" unless the modified plan is confirmed by the bankruptcy court.
"Substantial consummation" is defined in the Bankruptcy Code as follows:
(2) "substantial consummation" means —
(A) transfer of all or substantially all of the property proposed by the plan to be transferred;
(B) assumption by the debtor or by the successor to the debtor under the plan of the business or of the management of all or substantially all of the property dealt with by the plan; and
(C)commencement of distribution under the plan
11 U.S.C. § 1101(2). When examining a plan of reorganization to determine whether the plan has been substantially consummated, "[a] court must look to such issues as whether it has become legally and practically impossible to unwind the consummation of the plan or otherwise restore the preplan status quo; the virtues of finality; the passage of time; and whether relief granted by the court could implicate or have an adverse effect on non-party creditors or would affect the reemergence of the debtor as a revitalized entity." In re Hamady Bros. Food Markets, 110 B.R. 815, 817 (E.D. Mich. 1990). It is generally accepted that in cases involving installment payments, "substantial consummation" does not mean the payment of the entire debt. For instance, the bankruptcy court in this district, referring to Section 1101(2), has noted that
subsections (A) and (C) appear to distinguish between transfers of property to or from the debtor at or near the time the plan is confirmed undertaken to shape the new financial structure of the debtor and distributions of dividends made to creditors over a period of time from operating revenues. `Substantial consummation' completion or near completion of the former, but only commencement of the later.In re Hayball Trucking, Inc., 67 B.R. at 684. See also, In re Burnsbrooke Apartments of Athens, Ltd., 151 B.R. 455, 457 (Bankr. S.D. Ohio 1992). Even the failure to make a particular payment may not preclude the determination of a plan's "substantial consummation." See In re Stevenson, 148 B.R. 592, 596-97 (D. Idaho 1992).
At the time of the exchange of correspondence in this case between James Goergen and Harold Steinke, the bowling alley assets and real estate had been transferred to the reorganized debtor and the business was in full operation. It is likely that the Plan was substantially consummated, and thus modification would have been precluded. However, the Court need not make that finding, since the bankruptcy court never approved the "modification" as a confirmed plan. Thus, no agreement to defer the loan installment payments ever became a part of the Plan, and the defendants have no valid basis to consider the deferral as part of the modification of their arrangement with the SBA as Park Bowl emerged from its Chapter 11 protection status.
B.
The defendants also argue that even if the statements "agreeing" to defer payments do not modify the Plan, there is no prohibition against a creditor extending more generous terms to a debtor apart from the confirmed plan. The plaintiff responds with the assertion that such arrangements ought to be prohibited because they circumvent the bankruptcy process and would render the limitations in 11 U.S.C. § 1127(b) a nullity, citing In re U.S. Brass Corp., 301 F.3d 296 (5th Cir. 2002), and In re Ionosphere Clubs, Inc., 208 B.R. 812 (S.D.N.Y. 1997), in support.
The debtor in U.S. Brass encountered financial trouble when one of its widely-distributed products proved to be defective, resulting in products liability claims exceeding $1 billion, which prompted its filing for Chapter 11 protection. U.S. Brass believed that most of the claims against it should be satisfied by insurance, but the insurance carriers disputed coverage. A major component of the reorganization plan dealt with the manner of resolving those claims and allaying the insurers' fears of collusion among U.S. Brass and its creditors. The confirmed plan called for resolution of the liability claims through litigation in court that terminated by judgment or settlement. After confirmation, the creditors and U.S. Brass struck an agreement to submit the liability claims to arbitration and sought approval of the bankruptcy court of that arrangement. The bankruptcy court approved, but the court of appeals reversed, concluding that the post-confirmation agreement amounted to an impermissible modification of the plan. "To substitute arbitration for litigation at this point would alter the bargain the Insurers secured in exchange for their approval of the plan — in violation of § 1127(b)." U.S. Brass, 301 F.3d at 308.
In re Ionosphere Clubs, Inc. involved the reorganization of Eastern Airlines. Eastern leased commercial property under a lease that granted it a right of first refusal should the lessee desire to sell. The confirmed Chapter 11 plan called for Eastern to assume the lease but deleted the right of first refusal. Thereafter, another party, through questionable means, acquired an option to purchase the property and then undertook to exercise the option. Eastern then moved the bankruptcy court for relief from judgment and, with the consent of the lessee who had refused to close the sale with the party holding the option to purchase, sought to restore its right of first refusal. The bankruptcy court granted Eastern's motion, but the district court reversed. It reasoned that the amendment to the lease deleting the right of first refusal had become part of the plan of reorganization, and restoring it amounted to a post confirmation modification of a plan that had been substantially consummated in violation of Section 1127(b). The district court observed that the plan confirmation process provided a means to inform interested parties of the particulars of a plan and permit them to agree to disapprove. The amendment process contained in Section 1127 preserves those features. Thus, "[o]nly after notice and an opportunity to be heard may the Bankruptcy Court alter the legal relationship among the debtor and its creditors and other parties in interest." Ionosphere Clubs, 208 B.R. at 816.
These cases stand for the proposition that post-confirmation agreements that effectively amend the plan and reach beyond the immediate parties to the agreement contravene Section 1127(b). That is because "[a]fter confirmation, the plan essentially functions as a contract between the debtor and the other entities affected by the plan." 8 Collier on Bankruptcy ¶ 1142.04[2], at 1142-8 (15th ed. 2001) (emphasis added). There is no practical or legal prohibition, however, that would prevent a creditor from extending accommodations to a debtor beyond those demanded by a plan of reorganization that do not affect the rights or obligations of other constituencies, particularly when the accommodation benefits the estate. Such an agreement, which does not "alter the legal relationship among the debtor and . . . other parties" or affect the bargain struck by the creditors during the confirmation process, does not require court approval and does not implicate Section 1127(b).
The plaintiff attacks the purported agreement on the additional ground that it fails for want of consideration. It is true that under the preexisting duty rule, a promise to do what one is legally bound to do is not consideration for a new promise. Yerkovich v. AAA, 461 Mich. 732, 740-41, 610 N.W.2d 542, 546 (2000); see Puett v. Walker, 332 Mich. 117, 122, 50 N.W.2d 740, 744 (1952). "This rule bars the modification of an existing contractual relationship when the purported consideration for the modification consists of the performance or promise to perform that which one party was already required to do under the terms of the existing agreement." Yerkovich, 461 Mich. at 741, 610 N.W.2d at 546. However, although an essential element of a contract is legal consideration, see Detroit Trust Co. v. Struggles, 289 Mich. 595, 599, 286 N.W. 844, 848 (1939), under Michigan law an agreement to modify a contract is not invalid because of the absence of consideration provided that the agreement modifying the contract is in writing and signed by the party against whom the enforcement of the modification is sought. See Mich. Comp. Laws § 566.1. (stating that "[a]n agreement hereafter made to change or modify . . . any contract . . . shall not be invalid because of the absence of consideration [if] the agreement changing . . . such contract [is] in writing and signed by the party against whom it is sought to enforce the change").
It is clear here that Park Bowl offered no consideration in exchange for the deferral of payments on the SBA loan. The question, then, is whether the writings by Steinke and Misko constitute sufficient evidence of an agreement to modify the promissory note as amended by the Plan.
"It is hornbook law that parties to a contract are not forever locked into its terms. They are at all times free to alter, amend, or modify their agreement. Moreover, the parties may execute a substituted agreement which totally supersedes the terms of the original." Archambo v. Lawyers Title Ins. Corp., 466 Mich. 402, 412-13, 646N.W.2d 170, 176 (2002). However, a meeting of the minds or "mutuality" is required to modify a contract after it has been made. Quality Products and Concepts Co. v. Nagel Precision, Inc., 469 Mich. 362, 364-65, 666 N.W.2d 251, 253-54 (2003) (holding that mutuality is the centerpiece to modifying a contract, just as mutuality is the centerpiece to forming any contract); see also Universal Leaseway System, Inc. v. Herrud Co., 366 Mich. 473, 478, 115 N.W.2d 294, 297 (1962). The mutuality requirement is satisfied where a modification is established through clear and convincing evidence of a written agreement, oral agreement, or affirmative conduct establishing mutual agreement to modify the original contract. Quality Products, 469 Mich. at 365, 666 N.W.2d at 254. In addition, "the terms of modification must be definite, certain, and intentional." Port Huron Educ. Ass'n, MEA/NEA v. Port Huron Area School Dist., 452 Mich. 309, 329, 550 N.W.2d 228, 239 (1996).
Neither the October 22, 1997 letter from Harold Steinke nor the accompanying note from Anthony Misko constitute clear and convincing evidence of a mutual agreement to change the requirements of the Plan. Steinke's note does not purport to modify the payment schedule set forth in the Plan; rather, his letter refers to the page of the Plan dealing with payments on the promissory note, asserts that it "covers your loan," and then proceeds to misinterpret the Plan provision. Likewise, Misko's note references the same Plan page, which purportedly was sent to "answer[Steinke's] question," and about which Misko similarly offered his erroneous "understanding [that] interest and principal is [sic] deferred." Under even the most indulgent reading, these writings do not demonstrate a meeting of the minds that the Plan was to be modified or that the parties had reached a new agreement to defer loan payments.
Nor does the context in which the correspondence was generated allow for the conclusion that the parties mutually intended to modify the Plan repayment requirements. James Goergen never even requested that payments be deferred; it was Steinke who told him that he did not have to make the payments. Mark McMahan, the defendants' accountant, confirmed that the contact originated by Steinke was "very unusual" and "too good to be true." Def.s' Br. in Resp. to PL's Mot. S. J., dep. of Mark McMahan at 31. There were no negotiations, no discussion of terms, and no provisions concerning the beginning and ending dates of the deferral period. Under Michigan law, an agreement contemplating deferred payments must include the time of payments, since that is an essential term that cannot be presumed by a court called to interpret such agreements under a rule of reason. See Kojaian v. Ernst, 177 Mich. App. 727, 731-32, 442 N.W.2d 286, 288-89 (1989) (finding that an installment contract for the sale of real estate that failed to specify the time of payments did not satisfy the Statute of Frauds, since "when the writing on its face evidences deferred payments, it must state with reasonable certainty the substance of the payment terms"). The defendants point to the SBA's practice of crediting the sporadic post-confirmation payments entirely to principal as evidence of an agreement to modify the Plan, but that practice is not unequivocably referable to a meeting of the minds on an agreement to modify the Plan repayment requirements. It is equally consistent with the obvious misinterpretation of the Plan provisions by Steinke and the SBA.
The Court finds that the defendants have failed to come forth with evidence that creates a material fact issue that the parties intended to modify the Plan provisions for repayment of the promissory note as a matter of contract law. "Clear and convincing evidence" of an agreement to modify the Plan is absent from this record, and the writings upon which the defendants rely to avoid the want of consideration are woefully inadequate to constitute a writing containing the essential terms of a contract.
C.
The defendants also claim that even if the oral and written statements of the SBA's representatives do not amount to a contract to modify the Plan's loan repayment provisions, the plaintiff is estopped from asserting a default in the loan payments because of the negligent misrepresentation of Steinke and Misko regrading the repayment terms. The defendants have stated that the plaintiff's collection efforts run afoul of the doctrines of promissory estoppel and equitable estoppel.
"In order to invoke promissory estoppel, the party relying on it must demonstrate that (1) there was a promise, (2) the promissor reasonably should have expected the promise to cause the promissee to act in a definite and substantial manner, (3) the promissee did in fact rely on the promise by acting in accordance with its terms, and (4) and the promise must be enforced to avoid injustice." Crown Technology Park v. D N Bank, FSB, 242 Mich. App. 538, 548-49, 619 N.W.2d 66, 71 (2000).
An equitable estoppel arises where: "(1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts." Amerisure Ins. Co. v. Graff Chevrolet, Inc., 257 Mich. App. 585, 591, 669 N.W.2d 304, 308 (2003).
Thus, to recover under either of these theories, the defendants must come forward with evidence of detrimental reliance. However, the undisputed facts show that the defendants were already delinquent in their post-confirmation loan payments when the conversation about deferral between James Goergen and Harold Steinke first occurred. There is little question on this record that Steinke negligently misinterpreted the Plan provisions dealing with the repayment of the loan, and he erroneously informed James Goergen and Mark McMahan that payments could be deferred. However, the defendants admit that the payments were substantially in arrears at the time; Park Bowl's failure to make loan payments was not induced by any misrepresentation by a SBA representative. A different case would be presented if Steinke's representation that payments could be deferred caused the defendants to cease making timely payments and to channel the funds into, say, capital improvements. However, there is no evidence in the record that supports such a theory. Steinke's conversation did not provoke a new financial strategy by the defendants; they only induced a false sense of relief. Such expectations do not rise to the level of detrimental reliance. See Meerman v. Murco, Inc., 205 Mich. App. 610, 517 N.W.2d 832 (1994).
III.
The Court finds that there was no modification of the Bankruptcy Plan of Reorganization to implement any agreement to defer payment on the SBA loan or otherwise amend payment schedules beyond that already recited in the Plan language. There was no enforceable post-plan modification of the payment obligation under the law of contracts, nor is the plaintiff estopped from accelerating the debt since there was no detrimental reliance by the defendants on the negligent misrepresentation by representatives of the SBA.
Accordingly, it is ORDERED that the plaintiff's motion for summary judgment [dkt # 25] is GRANTED.
It is further ORDERED that the defendants' motion for summary judgment [dkt # 27] is DENIED.
The plaintiff shall present to the Court an approved form of judgment in accordance with this opinion on or before December 15, 2003.