Davis v. Samuel I. White, PC et al, No. 3:2013cv00780 - Document 75 (E.D. Va. 2014)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 4/21/14. Copy sent: Yes(tdai, )

Download PDF

1 IN THE UNITED STATES EASTERN DISTRICT DISTRICT CLERK, U.S. DISTRICT COURT RICHMOND VA Plaintiff, Civil Action No. SAMUEL I. WHITE, et al., 3:13cv780 P.C., Defendants. MEMORANDUM OPINION The matter is before the INJUNCTIVE RELIEF (Docket No. MOTION TO COMPLAINT White, P.C, Bank, F.S.B. DISMISS 5) and Federal MOTION AND (Docket (6) COMPLAINT AND TO No. (Docket NOTICE OF FOR 37 MOTION (Docket PER RULE FOR No. SANCTIONS 50) filed TO FAILURE 20) TO D. 25), R. FOR Davis; (2) Samuel J. GUILLOT, DEFENDANT AMY CIV. P. MOTION 12(b)(1) TO EXPEDITED RESPOND FEDERAL AGAINST 48) RONALD Michael D. I. filed by OneWest RONALD FED. FOR MOTION TO DISMISS DISCOVERY MOTION FOR filed by Michael D. Davis; (Docket No. by 16) WHITE'S MOTION AGAINST 37 (1) filed by (Docket No. ERIC (3) (Docket No. SANCTIONS ASSOCIATION AS Davis, 45); DEFENDANTS' INJUNCTIVE RELIEF MOTION and 13) Mortgage, PURSUANT 29), No. No. (Docket No. National DISMISS on: filed by Michael JR.'S MOTION TO DISMISS COMPLAINT MILLER'S Court (Docket MOTION TO DISMISS [Li/ OF VIRGINIA DAVIS, v. E F APR 2 I2014 COURT Richmond Virginia MICHAEL D. I NATIONAL (4) MORTGAGE filed by Michael GUILLOT Davis, AS D. PER RULE MOTION FOR SANCTIONS AGAINST SAMUEL I. 51) filed by Michael D. WHITE, PC AS Davis, MOTION ONEWEST BANK AS PER RULE 37 (Docket No. Davis, AGAINST MOTION (Docket No. FOR 59) SANCTIONS filed by Michael AGAINST AMY MILLER Michael D. Davis, SANCTIONS AS PER and AGAINST AMY filed by Michael D. Davis; D. RULE FOR 58) ERIC (Docket WITHDRAW PER and (5) AGAINST AS PER RULE 37 MOTION FOR SANCTIONS TO AS SANCTIONS WHITE Davis, (Docket No. filed by Michael D. 37 MOTION MILLER PER RULE 37 RULE No. 37 49) THE filed MOTION (Docket by FOR No. 62) MOTION TO CORRECT (Docket No. 56) filed by Michael D. Davis. As a preliminary matter, with the Court will begin its the to defendants' motions dismiss, because the analysis plaintiff fails to state any actionable claims and many claims are barred on jurisdictional grounds. a As a result, the Court need not reach decision on the other matters. BACKGROUND The dispute before the Court dates back to 2007 when Michael D. Davis obtained a construction loan from IndyMac Bank, FSB ("IndyMac") to construct a home in Columbia, Virginia.1 In 1 The Complaint expressly refers to the opinion in Davis OneWest Bank, F.S.B., No. 3:09cv699, 2010 WL 538760 (E.D. Feb. 12, 2012) (Hudson, J.). The Court will consider it v. Va. and another previous opinion referred to in the Complaint, Fed. Nat'l Mortg. Ass'n v. Davis, No. 3:12cv781, 2013 WL 4061644 (E.D. Va. Aug. 9, 2013) (Payne, J.) to set forth the background of the case because the Complaint sorely lacks factual context. See Stoney Glen, LLC v. S. Bank & Trust Co., 944 F. Supp. 2d July 2008, of the Office of Thrift Supervision closed IndyMac. IndyMac's FSB, assets and then all transferred to OneWest Bank, Va. Feb. 12, At were OneWest F.S.B., some IndyMac Bank, No. of F.S.B. 3:09cv699, point, Court title removed Judge of the claim Davis for among the made Federal Bank, Bank were Davis 2010 WL 538760, late In 2009, Goochland other action Hudson, payments at *1 v. (E.D. to this the Court against the any Note of or on the loan and Davis filed an action in the County claims. against The Court. OneWest ("Fannie Mae") defendants In an dismissed each of foregoing reasons, invalidate Federal ("OneWest"). Federal National Mortgage Association quiet IndyMac 2010) . OneWest demanded payment. Circuit to deposits of the transferred All the the seeking to in opinion and that case authored claims: by "For all the Complaint neither states a viable the Defendants Deed of Trust." nor a legal OneWest basis to 2010 WL Bank, 538760, at *4. Davis did not appeal that adverse decision. 460, 464 (E.D. Va. 2013) ("Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, without converting the motion into one for summary judgment. However, there are a number of exceptions to this rule. official public records, claim, and documents Specifically, a court documents central to sufficiently referred to ^ay consider a plaintiff's in the complaint, so long as the authenticity of these documents is not disputed' ....") (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999); see also Witthohn v. Fed. Ins. Co., 164 F. App'x 395, 396 (4th Cir. 2006) (holding that a district court may take judicial notice of state court records while deciding a motion to dismiss). Instead, Davis filed a second action in the of Goochland County on February 25, 2010, "Request for Production Complaint, Davis v. OneWest, 25, 2010) Order to Compel FSB, Court which was styled as a CL10-24 of Documents." (Va. Cir. Ct. Feb. (Goochland County) . As he had in the first action that was removed to federal court, was No. Circuit invalid addition, and that Davis representatives. OneWest vaguely The Davis again asserted that the note was not alluded Circuit entitled to Court to enforce misconduct for by Goochland it. In OneWest's County heard oral argument and issued an order dismissing the claims on June 10, 2010. Davis v. OneWest, FSB, 22, 2010) (Goochland County). No. The CL10-24 (Va. Cir. court denied Davis' Ct. June motion to amend his complaint. On July 2012, the sale, and Fannie property. (Compl. Ex. initiated an foreclosure General 30, unlawful District Court Nat'l Mortg. Ass'n v. *1 (E.D. Va. Aug. before this 9, Court E.) Columbia Mae On detainer property obtained October action 5, 2013) after No. 3:12cv781, sold title at a to the Fannie 2012, against for Goochland County, Davis, the was Mae Davis Virginia. in the See Fed. 2013 WL 4061644, at (Payne, J.). That action briefly came Davis filed a Notice of Removal and filed numerous counterclaims alleging violations of the Truth in Lending Act and numerous state law claims. However, the Court found that it did not have subject matter jurisdiction over the Davis' *1, claims and granted Fannie Mae's motion to remand. Id. at *10. Subsequently, on November 25, 2013, the General District Court for Goochland County awarded Fannie Mae possession of the property 2014. and ordered the Davises to vacate it by January 31, Davis filed this action alleging thirteen On the same day, claims against the defendants. Davis avers in his Complaint that eleven of the thirteen claims "identical to those argued upon in 3:12cv781. . . . [T]hey were left in their original position as to remove any misconception that these are new issues which need to be re-argued." (Compl. SI 18.) The two new claims allege: (1) that Amy E. Miller, who represented OneWest and FannieMae in the previous engaged lawsuits, "federal question" (Compl. n 47-62, in involving "attorney misconduct" "bad faith legal and (2) a practices." 151-74.) DISCUSSION 1. Standard of Review Fed. R. Civ. P. 8 provides that "a pleading that states a claim for relief must contain ... a short and plain statement of the Fed. claim showing R. Civ. that the pleader is entitled to P. 8(a) (2). A court must dismiss a complaint if it fails to state a claim upon which relief may be granted. Civ. P. relief." 12 (b) (6) . Fed. R. To overcome a Rule 12(b) (6) plaintiff's complaint claim is plausible on its Motor Co. , 551 F.3d 218, 222 (4th Cir. that Corp. v. Twombly, plausibility allows defendant Iqbal, 550 U.S. when the the court is 556 "must motion U.S. draw for 662, 556) . Although a 678 or 2009) (2007)). v. Am. a Honda content inference alleged." (citing state "A claim has facial factual misconduct that to the (quoting Bell Atl. reasonable assumes legal allegation." Id. at conclusions 678. assertions enhancement facts Robinson pleads (2009) dismiss, facts that the Ashcroft v. 550 Twombly, the that at U.S. alleged in a a court need not consider unsupported legal conclusions "naked 555 the the court complaint are true, 544, enough face." plaintiff to liable provide to As the Fourth of wrongdoing the within "couched complaint as Circuit has necessitate explained, some possibility and plausibility of entitlement to relief." Francis A of pleading must the grounds 8(a) (1). within "A its violation; usurpation for also the federal 193 contain "a court's court's subject matter it of state Arthur R. Miller 2009). short jurisdiction judicial & Edward H. and plain jurisdiction." entertaining nothing is (4th Cir. the factual between 588 F.3d 186, cross factual line v. Giacomelli, to a less a power." Cooper et case is than 13 Fed. no an statement R. Civ. P. that is not mere technical unconstitutional Charles al. , Federal A. Wright, Practice & Procedure, Jurisdiction adjudicate in federal the federal court § 3522 possesses complaint, the Court however ed. ) . The party court has the burden of Kokkonen v. Guardian Life Ins. Finally, (3d jurisdiction Co., 511 U.S. remains inartfully over 375, the 377 that must be matter. (1994). pro "a held to se less stringent standards than formal pleadings drafted by lawyers . ." Estelle v. Gamble, 2. 429 U.S. 97, to establishing that mindful pleaded, seeking . . 106 (1976). Claim Preclusion As time our an action sister individual to "has delay has 958 F. it be the last. judgment in one of the noted, attempted foreclosure." Acquisition Corp., will district Supp. But, to this use is not multiple Canterbury v. the first causes J. P. Morgan 2d 637, 647 (W.D. Va. 2013). when actions, a court then has "courts issued have of a Nor final applied res judicata to bar parallel and subsequent litigation." Id. The doctrine litigation previous F.3d on of the matters adjudication. 316, 318 (4th conceptual preclusion. Id. precludes Yachts, 2002). claim LLC The v. resolved Mollicam, doctrine preclusion subsequent in a Inc., 287 encompasses two and (2) issue "Claim preclusion generally refers to the effect a prior judgment in very same claim, (1) judicata actually and necessary Orca Cir. branches: of res foreclosing successive litigation of the whether or not relitigation of the claim raises the same issues 532 U.S. 742, generally as 748 earlier (2001). refers foreclosing the to New Hampshire On the other hand, the successive suit." effect of litigation of Maine, "[i]ssue preclusion a an v. prior issue judgment of fact in or law actually litigated and resolved in a valid court determination." Id. at 748-79. Claim preclusion may bar never been litigated Miller & Edward H. Jurisdiction explained, § claim the (2d ed.). preclusion from the judgment actually decided." 18 of matters Wright, Alan that have Arthur R. Cooper et al., Federal Practice & Procedure, 4406 litigation arises then or "litigation bars adjudicated As the provides same cause litigation of not only of first, matter 81 Dep't of Mental Health, 640 F. Taylor v. Sturgell, "[c]laim preclusion ^merger' and consistently Supp. 553 U.S. 880, accorded the preclusive state courts." Allen v. McCurry, Montana v. Bullington, United States, 330 U.S. 892 "[F]ederal 183, 440 186 n.5 courts effect U.S. (1947)). Va. (E.D. Va. 2009); (2008) rules 449 8 also Martin-Bangura v. 2d 729, 738 describes *bar'"). but the as Inc., 1996); case, later every action the claim that might have been presented." In re Varat Enter., (4th Cir. earlier "if has every 1315 the that, Circuit of F.3d 1310, in Fourth (noting that formerly known generally to U.S. 90, 147, 153 issues 95 see have as also decided (1980) (1979); by (citing Angel v. Claim final preclusion judgment on applies if three merits of the the elements suit, (2) causes of action in both the earlier and the an identity of parties Newcom Holdings Party, (E.D. Va. 2005) F.2d 1054, Ltd. their (citing Meekins privies v. an "(1) in the (3) two suits." Supp. 369 F. United a identity of later suits and v. Imbros Corp., (4th Cir. 1057 First, or exist: 2d 700 Transp. Union, 946 1991)). the Court considers whether the same cause of action underlies the previous lawsuits between the parties. Circuit has adopted whether such an a "transactional identity of causes approach" of action The to Fourth determine exists. "[T]he appropriate inquiry is whether the new claim arises out of the same transaction or series of transactions by the prior (4th Cir. judgment." 1990) (internal Harnett v. Billman, Complaint makes involved the Columbia clear, same asks Id. this note and Moreover, dismissed deed of Aldridge, quotation each note, property in question." already v. 800 F.2d 1308, property. explicitly Keith the trust. previous deed Indeed, in (Comp. Davis' 1313 same Court to marks original 900 F.2d 736, omitted) action of filed his However, 2010 Davis brought the exact same claims As by and the title the Davis Complaint, the 740 (quoting 1986)). trust, attempts Bank, the claim resolved (4th Cir. "adjudicate at SI 11.) OneWest as same Davis to the this Court has to invalidate the WL 538760, *4. at against the exact same parties case and in this these claims makes a valid P.C. 3:12cv781. case obvious transaction: No. as is that, that each in short, the of No. 3:12cv781, The the theory actions Davis behind arose asserted Davis' from case the same Davis believes that OneWest does not have note, substitute trustee, In in counterclaims. claim to to enforce The only difference between that could not appoint and therefore, Samuel OneWest is I. not White, entitled the note. No. 3:12cv781, this counterclaims could provide jurisdiction. See 4061644. not generally Thereupon, the Court a Fed. Court determined basis Nat'l Mortg. remanded Davis' subject for that matter Ass'n, 2013 action to the WL the Goochland County General District Court. Id. at *10. The General District final merits Court in subsequently favor Nat'l Mortg. 25, 2013) did present of Ass'n v. (Goochland his District Court, title." OneWest, Ex. preclusive Kalos Feb. 23, 3., In and No. County). Support at 4-5.) In Posner, 2011); Davis, a did CV12-405 The to Davis record the judgment not (Gen. the appeal. Dist. indicates Goochland on Fed. Ct. that County Nov. Davis General but that the court lacked jurisdiction to "try[] effect. v. Mae counterclaims (Memo. see Fannie issued re of Motion Therefore, Varat Bethea v. Wells 10 Dismiss, FNMA and neither judgment possesses Enter., No.l:10cv73, to 2011 Fargo Inc., WL 81 761240, Home F.3d *5 Mortg., at 1315; (E.D. Va. Inc., No. 3:08cv680, Fed. R. 2009 WL 2001438, Civ. P. 41 *2-3 (E.D. (a dismissal for Va. July lack of 10, 2009); See jurisdiction does not operate as an adjudication on the merits). However, Davis' still precluded, Bank, F.S.B., claims because No. against both were 3:09cv699, and OneWest parties that and to Fannie Davis judgment 201 Supp. F.3d 2d 439, 521 525 442 n.2 (D. Md. 2007) (4th Cir. as Davis v. as U.S.A., see 2010 WL an Inc., (citing Andrews v. 2000)); are OneWest operates "adjudication on the merits." Frank v. Home Depot, 481 F. Mae Daw, 538760, at n. Moreover, P.C. and insofar its attorneys, Ronald J. lacked authority to conduct are the barred, with the because firm's alleges client. the firm As Guillot, its Samuel Jr. foreclosure and the that attorneys be ^so identified litigation that he respect to the in has subject 2005) Jones matter Retirement 1997)). v. Plan, foreclosure sale is to note the a SEC, involved.'" 407 115 Because Samuel I. White, enforce with in claims privity stated, w[t]o the non-party party to former represents precisely the same legal right Bancorporation (citing interest those are be in privity with a party to a former litigation, must White, and Eric White, sale, Fourth Circuit I. F.3d F.3d Martin v. Am. 651 (4th Cir. 1180 (4th Cir. 643, 1173, P.C.'s authority to conduct the inextricably bound with OneWest's and appoint 11 in a substitute authority trustee, its interests lawsuit. were See Claim "adequately represented" during the first an action id. I alleges that Fannie Mae could not file for unlawful detainer without a claim to ownership.2 However, this Court, against Davis the note Davis merit. his in did complaint. instruments and not of appeal I the Claim lacked decision rests that upon claims factual or legal attempt to amend or the Davis' validity unsuccessfully the Davis in of v. it is barred. II I. White, validity unsuccessfully of alleges that OneWest lacked the filed Davis that an Davis claims that OneWest could not P.C. the in I alleges wrongfully held enforce the note and appoint a substitute trustee. Samuel 2 Count trust that Based on these allegations, direct Bank, challenged Therefore, Similarly authority to he OneWest deed Claim that OneWest Bank. v. to foreclose. instruments v. OneWest Fannie Mae unlawful Claim II that Bank. he action challenged Therefore, and Samuel detainer rests upon I. in White, the it is P.C. Goochland County General District Court. More accurately, the allegations suggest that the Goochland County General District Court wrongfully exercised subject matter jurisdiction over the action before satisfying predicate requirements. Although such allegations appear to implicate the Rooker-Feldman doctrine, Davis managed to file this action in federal court just before the General District Court awarded possession to Fannie Mae. Because the doctrine requires the federal action to be filed after the state-court judgment, the doctrine does not apply. Davani v. Va. Dep't of Transp., 2006) (quoting Exxon Mobil Corp. 544 U.S. 280, 284 (2005)). 12 434 F.3d 712, 718 (4th Cir. v. Saudi Basic Indus. Corp., barred. I. Claim II could also be interpreted to allege that Samuel White, P.C. However, lacked authority to conduct the foreclosure sale. that invalidity argument of the is also premised on that Davis instruments unsuccessfully in Davis v. OneWest Bank. the previous note, and action therefore, the foreclosure, Claims holder of action, IV the substitute present validated challenged Because the decision in OneWest's I. alleged White, right P.C.'s to enforce right to the conduct this claim is barred. through note, trustee the Samuel the and or same VII allege that therefore enforce arguments the as not OneWest entitled note. those Claims was to IV advanced in not the appoint through the a VII first and they are therefore barred. Claim VII also alleges that IndyMac induced him to sign the note and "arbitrarily set his interest rate" above what he could afford. Moreover, encouraged advanced "[un]balanced" these Claim VII allegations appears to allege negotiations. during the that Davis first Fannie could action. Mae have Therefore, is barred. Claim XI challenges IndyMac to OneWest. endorsed Claim VII from the validity of the assignment from Davis alleges that the note was not properly IndyMac to OneWest. allegations in the first action. Davis Therefore, 13 made these precise Claim XI is barred. Similarly, Claim XII challenges alleges that OneWest is not allegations in advanced and therefore, 3. the of title" and holder of the note. the Again, the first the "chain action encompass this claim Claim XII is barred. Plaintiff Fails to State a Cause of Action Even if the above claims were not precluded, the Complaint lacks sufficient facts to state a single "plausible" claim. The Court will begin with the alleged federal questions. A. Claims VIII, Claims notice to VIII IX, X: Violations of Truth in Lending Act and OneWest IX in ignored the notice, allege that Davis February 2010 and sent that thereby violating 15 U.S.C. the Truth in Lending Act provides that a rescission OneWest § 1635. simply However, "the obligor shall have the right to rescind the transaction until midnight of the third business the day following delivery under this of the section 1635(a). therefore, Davis he sent consummation information together material disclosures § the and with of his the transaction rescission forms statement containing a required under this received the subchapter." construction rescission well past loan the or required the 15 U.S.C. in 2007; statutory time limit provided in section 1635(a). If forms, 1635(a), Davis and did the then not receive material his right the information, disclosures of rescission 14 as the required would extend rescission by section for three years after the date on 15 U.S.C. § 678 F.3d 271, 276-77 exercises the right alleging 1635(f); which see disclosure rescind errors however, the was consummated. v. Residential Funding, 2012) Cir. (noting a when and years) . If that were the case, timely; transaction Gilbert (4th to the he or seeking Davis' Complaint does that she borrower sends rescission LLC, a letter within three rescission might have been not allege that Davis did ability to not receive the required documents and disclosures. Moreover, tender, a Mortg. Davis prerequisite Corp., Section "fails 2011 1635(b) WL transaction to Mortg. Network v. interest is voided payments made by (3) the borrow *3 the ^status quo through the ante.'" 820 three-steps: borrower is of tender the cancellation loan contract." Shelton, Claims VIII and IX July v. 22, involved Id. not 2011). in the (quoting Am. (4th Cir. (1) HSBC the liable 2007)). security for any the creditor has twenty days to refund any connection with the proceeds of Fourth Circuit follows the "majority view notification Va. Brown parties F.3d 815, the borrower in must present (E.D. the 486 a rescission." restore and (2) TILA to Shelton, proceeds further payments; a allege 3101780, "seeks credit Rescission to to does not 486 F.3d at 821. the loan. loan; and Id. The . . . that unilateral automatically void For all these reasons, lack sufficient factual allegations to a plausible claim under the Truth in Lending Act. 15 the state Claim X asks the Court to "provide an official answer" on the validity of the "312 Interpretation" of the Truth in Lending Act versus the declaratory proceeds Interpretation." to In on judgment borrower initiate Declaratory may "123 Judgment declare the whether the the section Act, a rights of the other Davis seeks a must tender the process. 1635(b) "court and effect, Under the United legal States relations interested party seeking such declaration." 28 U.S.C. . of any § 2201(a). " [D] eclaratory judgments are designed to declare rights so that parties Hipage can Co. conform their v. Access2Go, conduct to Inc., Va. 2008) (citing Volvo Const. Co. , F.3d 386 581, 593-94 589 F. Equip. (4th avoid Cir. future Supp. N. Am., 2004)). 2d litigation." 602, 615 Inc. v. CLM Equip. Thus, declaratory judgments "are untimely if the questionable conduct has occurred or damages N.A., Supp. 2d 689, 718 F. have already accrued." (E.D. Tapia v. already U.S. Bank, 695 (E.D. Va. 2010). Davis asks the Court to "correct" the OneWest attorneys and alleges law. the various Therefore, injuries 2d at by their interpretation it is clear on the face of Davis' "questionable Supp. caused conduct 695. His has already occurred." request for declaratory of the Complaint that Tapia, 718 F. judgment is untimely and such judgment would not assist the parties to this action "conform their conduct 16 to avoid future litigation." Because declaratory Claim X is dismissed. B. judgment this stage is inappropriate, The Remaining Claims Although Davis has "federal questions," as to at the federal labelled Claims his allegations XI, fail to XII, and XIII provide any detail laws that the defendants purportedly violated or federal rights of which Davis has been deprived. remaining claims assert doubtful. Because the state law Complaint violations does not and allege At best, even a the that valid § 1331, the Court may decline to exercise is claim that would give this Court original jurisdiction pursuant to U.S.C. as 28 jurisdiction over parties joined under Rule 20 if the original claim is based on diversity inconsistent 1332. 28 and with U.S.C. if the § exercising jurisdictional 1367(c). The the Truth dismissed. However, discretion to in Lending address the be section not do of clearly subject matter jurisdiction Act section 1367(c) would requirements pleadings establish that the Court would have absent jurisdiction claims, which have been does provide the Court with remaining claims, and so the Court will proceed to the remaining claims. (i) As noted Claims I and II above, Claims unlawfully enforced the note; I. White, P.C. to conduct the I and II allege that OneWest OneWest unlawfully directed Samuel foreclosure 17 sale; and Fannie Mae and Samuel unlawful County. I. White, detainer However, in the P.C. the wrongfully General Complaint filed District alleges no an action Court for facts in for Goochland support of the conclusory assertion that OneWest was not the holder of the note. Under Claim II, the Complaint fails to sufficiently plead an ulterior purpose or "an act in the use of process not proper in the regular prosecution of the proceedings as needed to state a claim for abuse of process." Donohoe Const. Vernon Assocs. , 235 Va. 531, 539 Co., (1988) . Instead, Inc. v. Mount Davis attached two documents to the Complaint without explanation as to how the documents might support a "reasonable inference" violated Virginia Code section 8.3A-203. & C). Moreover, his that (Compl. at SI 36, "show-me-the-note" claims OneWest Exs. B run "contrary to Virginia's non-judicial foreclosure laws." Brown v. HSBC Mortg. Corp., No. I:10cvl427, 2011 U.S. Dist. LEXIS 80943, *5 July 22, 2011). As explained by this Court, a noteholder is not ^required to come to a court of law and prove its authority or standing to foreclose on a secured property' so too a nominal beneficiary or a substitute trustee . . . should not be required to prove in court that it has the noteholder's authority. To conclude otherwise would allow borrowers to compel judicial intervention in any foreclosure proceeding where a deed of trust has changed hands trustee has been appointed. or a substitute (E.D. Va. Pham v. Bank of N.Y., (citing Horvath v. Cir. 2011)). As about to Claim I, law In addition, for Samuel Fannie by filing I 1:4 P.C. the facts that would that allow inference" that Guillot 641 fails (E.D. F.3d Va. 617, 2012) 623 (4th filed provide any details Samuel action for Ronald an White, unlawful Guillot, in court P.C. detainer. an attorney violation of detains and "unlawfully However, the I. affidavit Davis the to and that filed stating 810 is dismissed. withholds" the Columbia property. any N.A., Mae alleges White, Rule N.Y., 2d 804, the Complaint Claim I. of Supp. Claim II that violated Virginia Bank Therefore, the allegedly 856 F. Davis fails to allege to make affidavit a "reasonable without the good faith required by law. Because these "naked assertions" enhancement" required by Twombly and lack Iqbal, the "factual the Court dismisses Claim I. (ii) Claim OneWest Claim III III and appears Fannie intentionally a letter Mae In that aspects emotional support, following purportedly outside the allege in inflicted defrauded the Court. him to the of Miller, the distress Davis alleges foreclosure scope of who represented previous on Davis and that Miller sent sale, her representation, which was and refers broadly to his Opposition to Motion to Dismiss from No. 19 actions, 3:12-cv- 00781. (Compl. Ex. H.) He also refers behalf of Miller by Morris & Morris, In Virginia, conduct and is Russo are v. plead reckless; connected; and, Va. 23, 215 Va. 338, 342 (1974)). to was outrageous catalogue pleads Miller's alleged averring that that actions of or injury. the to his an reasons, he infliction 23, 28 for Davis does between judgment, the reasons stated v. allege that does and conduct he linking distress, aggravating" action." his Davis Further, tormented specific to is Womack emotional eviction which severe." purportedly be Miller's is nor "insulting impending emotionally not distress. would outrageous (citing Davis does not request damages. requests declaratory circumstances distress purported was wrongdoer's is and intolerable, individual connection In addition, the (1991) Complaint does not plead any facts injury conduct causation conduct average fears of submitted on "the conduct substantiate his chain Miller's "the propagated a or 26 and brief that the wrongful 241 cursorily and must alleged causally conduct attempt the or a P.C. White, Eldridge, the plaintiff intentional intolerable; distress a to by the But the own alleged and his Instead, own he inappropriate under the above. For all these fails to state a plausible claim for the intentional of (1991) emotional distress. See Russo v. (noting that conclusory allegations 20 White, 241 Va. The Complaint certainly does not include sufficient factual allegations somehow action to defrauded that fraudulent. to Davis not support after a took the in with constitutes state that 538760, a 122, v. at to the dismiss, under Rollins (D.C. Cir. & 481 Howell F. 2012) Co., Supp. 2d 41(b) v. 872 at letter grants "unless 442. 21 J., 1178, And, to as a as 2010 WL state Rule an any 12(b)(6) adjudication dismissal Servs., Inc., concurring); the not II, and III are the 1180 states and does Davis, fails was statement opinion dismissed Wackenhut F.2d the ^operates (Kavanaugh, this Counts I, court dismissal Rule that 3:10-cv-699, that Plaintiff district that does in prejudice. . . . Accordingly, a does filed on by Miller. No. alleges without ("Accordingly, "When letter Complaint Nothing were *4 that the to a brief claims was was in Claim III. Davis Davis' otherwise.'" 132 Frank, Davis. that merits" Bell to to infer any that Miller wrote However, H Miller identify reasonable However, the dismissal dismissed."). states could a letter Exhibit that clearly misrepresentation. actionable claims. on not sale. refers prejudice. clearly motion to allegation she states that Davis v. OneWest, dismissed quite Court accusations also does refers from Miller Complaint Therein, the record. substantiates Davis' The that He foreclosure the letter conclusory Court. The Complaint appear include she the the (4th 703 F.3d see Shoup Cir. Supreme order 1989); Court has explained, "an adjudication on dismissal Corp., Rule with prejudice. 531 U.S. 12(b) (6) 497, that prejudice operates as reasons, Semtek 505 does the merits" (2001). not Claims of V, VI, V, VI, and VII contract arguments that under with or without For all these and VII recast was Davis' "show-me-the-note" Davis does not clearly plead the were that OneWest OneWest improperly trustee impartially. enhancement" Claim pursuant is dismissal breached, not the but instead holder of the repeats note and not entitled to enforce it. Claim V adds an assertion substitute 193. it a Lockheed Martin a dismissal with prejudice. Claims IV, IV, the therefore, that v. Therefore, state whether claims as breaches of contract. his Inc. Claim III will be dismissed. (iii) terms Int'l is synonymous with a to and However, to VI appointed these that he reiterates the Truth in Samuel does "naked Samuel I. not Lending White, As P.C. P.C. any Francis, allegation Act. White, provide assertions." Davis' I. that noted acted "factual 588 he as F.3d at rescinded above, Davis' Truth in Lending Act claims are not timely and are inadequately pleaded. Claim VII adds an argument that IndyMac fraudulently induced him to sign the note. As explained above, me-the-note foreclosure theory laws. as Pham, courts have "widely rejected" the showcontrary 856 F. to Supp. 22 Virginia's 2d at 810 non-judicial (citing Gallant v. Deutsche Bank Nat'l Trust Co., Va. 2011)). matter of claims Therefore, law. in As a Davis is to amount to the Court result, Supp. entitled to (iv) Davis' 721 IV through VII "show-me-the-note" legal conclusions cannot relief 2d 714, (W.D. IV through VII are dismissed as a To the extent that Claims addition allegations Claims 766 F. draw a and those present claims, the and lack particularity. reasonable claims will inference that be dismissed. Claims XI and XII Claim XI avers that the assignment of the note from IndyMac to OneWest was not properly notarized and generally alleges that Miller allowed ineffective her client assignment. misinterpreted the to enforce Claim U.C.C. and XII a note avers Virginia Code despite that title an Miller 8.3A, and allowed her client to enforce the note unlawfully. First, the to the extent that Davis requests "nominal damages," allegations standard set unadorned, Iqbal, forth the 556 Miller's contained at (Compl. favorable to process. 678. Davis at SIf 140-43, Davis, Claims the defendants Davis 8, interpretations opinions. contend that Rule do not the "demands which meet more defendant-unlawfully-harmed-me U.S. legal in therein contended as XI alleges and that then 144-50.) and XII he he 23 under than an accusation." "disagreed" with sets forth his own Taken in the light most might be interpreted abused the non-judicial much pleading Claim II. to foreclosure However, he does not clearly plead an the process, elements. have ulterior motive or Donohoe, roundly 235 Va. rejected as foreclosure laws. Pham, at 539. his plainly contrary 856 As explained above, "show-me-the-note" F. to Supp. v. Deutsche Bank Nat'l Trust Co., theory Virginia's 2d 766 F. at 810 Supp. courts of non-judicial (citing Gallant 2d 714, 721 (W.D. 2011)). Second, seeks the Complaint declaratory explained, is improper use of and Virginia law requires plaintiffs to plead both impropriety Va. an occurred [and] Supp. at 2d constitute damages 695. entitlement to that Davis instances. primarily As already questionable already the sufficient between are conduct accrued." allegations and "factual possibility Francis, 588 has Tapia, contained "naked F.3d 718 ... plausibility at 193. F. therein assertions enhancement and already of to of Therefore, dismissed. Claim XIII Claim XIII baldly both conclusions relief." and XII the have legal line (v) enforced in "the Finally, without the XI because mere wrongdoing" Claims judgment clear declaratory judgment at this stage of the proceedings inappropriate cross makes avers note asserts and that that the defendants foreclosed the on defendants his jointly and severally home lied to in bad him faith. and various courts that these parties have appeared before. 24 to He the He does not identify any common law, the defendants owed and the contains claim assertions. him; Because "heft" to push Court dismisses the no the the Davis additional claim from Claim also or statutory duty that claim makes to lack Nemet F.3d requests other allegations; supplement sufficient "conceivable XIII. 591 no facts allegations Consumeraf fairs. com, Inc. , Moreover, contractual, to 256 declaratory factual plausible," Chevrolet, 250, his (4th the Ltd. Cir. judgment v. 2009). under this claim, which is inappropriate for the reasons stated above. CONCLUSION For (Docket the No. foregoing 13) DISMISS filed by (Docket Federal reasons, National No. Samuel I. filed by 16) Mortgage, DISMISS COMPLAINT DISMISS PURSUANT TO No. 29), No. ERIC WHITE'S R. P.C, OneWest J. DISMISS COMPLAINT the Bank, GUILLOT, JR.'S MOTION F.S.B. MOTION TO and TO DEFENDANT AMY MILLER'S MOTION 45) will be granted. and FED. 25), TO White, RONALD (Docket No. TO the MOTION MOTION For the foregoing reasons, MOTION Davis, FOR INJUNCTIVE RELIEF the DEFENDANTS' (Docket No. SANCTIONS MOTION FAILURE 20) AGAINST FOR TO filed CIV. P. TO (Docket No. RESPOND FEDERAL (6) (Docket COMPLAINT DISMISS AND (Docket it is unnecessary to address the EXPEDITED by 12(b)(1) TO Michael NATIONAL 25 5) filed by Michael DISCOVERY MOTION D. FOR Davis, MORTGAGE AND NOTICE INJUNCTIVE the OF RELIEF MOTION ASSOCIATION D. AS FOR PER RULE 37 (Docket No. 48) FOR SANCTIONS AGAINST 50) I. Michael AS WHITE, D. PER MOTION No. RONALD GUILLOT filed by Michael SAMUEL RULE FOR 59) 37 D. Davis, PC Davis, AS PER the (Docket No. by AGAINST AMY MILLER AS Michael D. Davis, the SANCTIONS AGAINST AMY as filed by Michael ERIC 37 (Docket WHITE Davis, RULE MILLER D. RULE 37 No. filed by Michael AS the PER the MOTION (Docket 51) AS 37 (Docket WITHDRAW PER RULE D. filed They, the (Docket 49) filed THE therefore, BANK SANCTIONS No. 37 37 by FOR MOTION (Docket and the MOTION TO CORRECT Davis. No. Davis, RULE MOTION TO MOTION filed by Michael D. Davis, 56) 58) D. PER PER Davis, FOR SANCTIONS AGAINST ONEWEST AGAINST Michael AS D. the MOTION FOR SANCTIONS AGAINST RULE MOTION SANCTIONS filed filed by Michael No. by FOR 62) (Docket No. will be denied moot. It is SO ORDERED. /s/ 4it Robert E. Payne Senior United States District Judge Richmond, Virginia Date: April 21, 2014 26

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.