Anthony Jones v. Fulton Bank, N.A., No. 13-2034 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2034 ANTHONY L. JONES; CHERYSE D. GLENN JONES, Plaintiffs - Appellants, v. FULTON BANK, N.A., Defendant Appellee, and SAMUEL I. WHITE, P.C., Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:13-cv-00126-JRS) Submitted: March 28, 2014 Decided: April 9, 2014 Before SHEDD, AGEE, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Henry W. McLaughlin, III, LAW OFFICE OF HENRY MCLAUGHLIN, P.C., Richmond, Virginia, for Appellants. Brendan D. O Toole, WILLIAMS MULLEN, Richmond, Virginia; William L. Stauffer, Jr., WILLIAMS MULLEN, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Anthony appeal the Joneses ) L. Bank, National Jones and Cheryse district Association s court s D. Glenn-Jones order granting ( Defendant ) motion to ( the Fulton dismiss their action for damages and to quiet title based on Defendant s alleged breaches of the deed of trust securing their mortgage loan. Finding no error, we affirm. We review de novo the district court s dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Sec y of State for Defence v. Trimble Navigation, Ltd., 484 F.3d 700, 705 (4th Cir. 2007). [W]hen ruling on a defendant s motion to dismiss, a judge must accept as true all of the factual allegations contained in Erickson v. Pardus, 551 U.S. 89, 94 (2007). the complaint. However, [f]actual allegations must be enough to raise a right to relief above the speculative level. 555 (2007). Bell Atl. Corp. v. Twombly, 550 U.S. 544, The complaint must contain enough facts to state a claim to relief that is plausible on its face. A deed Virginia law. (Va. 2012). (1) a trust is construed as a contract under Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 200 The elements of breach of contract in Virginia are: legally plaintiff; of Id. at 570. (2) enforceable the obligation defendant s of violation a or defendant breach of to a that obligation; and (3) injury or damage to the plaintiff caused by 3 the breach of obligation. Filak v. George, 594 S.E.2d 610, 614 (Va. 2004). The Joneses first argue that the district court erred in dismissing their breach of contract claim based on Defendant s failure to send a proper thirty-day pre-acceleration notice. While a deficient pre-acceleration notice constitutes a breach of contract, see Bayview Loan Servicing, LLC v. Simmons, 654 S.E.2d 898, 901 (Va. 2008), a plaintiff must still plead damages due to that breach. Filak, 594 S.E.2d at 614. The district court s dismissal of this claim hinged on its finding that the Joneses did not sufficiently Defendant s alleged breach. argument on whether plead damages due to On appeal, the Joneses focus their Defendant s allegedly deficient pre- acceleration notice constitutes a breach but they do not dispute the district court s finding on the damages element. Thus, we affirm the district court s dismissal of this breach of contract claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (concluding that issues not raised in opening brief are deemed abandoned). The Joneses next argue that the district court erred in dismissing their second breach of contract claim, in which they claimed improperly that Defendant appointing Samuel breached I. the White, deed P.C. of trust by ( White ) as substitute trustee and instructing him to commence foreclosure 4 proceedings. The district court found that the Joneses lacked standing dispute to Defendant s appointment of White as substitute trustee. On appeal, the Joneses simply contend that they to have standing challenge the appointment because the foreclosure sale did not comply with the deed of trust. They do not, in however, argue that the district court erred its analysis of the causation and redressability elements of the test for standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (stating elements of standing). We therefore affirm the district court s dismissal of this breach of contract claim. See Edwards, 178 F.3d at 241 n.6. Next, the Joneses dispute the district court s dismissal of their third claim, breach of the implied covenant of good faith and fair dealing under the Uniform Commercial Code ( UCC ), as adopted by Virginia, which they based on Defendant s alleged breaches of contract discussed supra. The claim fails as a matter of law for two reasons. does not apply to transfers of real Joneses First, the UCC property. Greenwood Assocs., Inc. v. Crestar Bank, 448 S.E.2d 399, 402 (Va. 1994). Second, even if the deed of trust falls under the UCC as the Joneses argue, their separate tort claim. claim fails because it was pled as a See Charles E. Brauer Co. v. NationsBank of Va. N.A., 466 S.E.2d 382, 385 (Va. 1996) (holding that the failure to act in good faith . 5 . . does not amount to an independent tort. The breach of the implied duty under the UCC gives rise only to a cause of action for breach of contract. ). Finally, the Joneses contend that the district court erred in finding that they were required to pay off the deed of trust before bringing an action to quiet title. To assert a claim for quiet title, the plaintiff must allege that he has satisfied his legal obligations to the party in interest and, thus, maintains a superior interest in the property. Tapia v. U.S. Bank, N.A., 718 F. Supp.2d 689, 700 (E.D. Va. 2010), aff d, 441 F. App x 166 (4th Cir. 2010) (No. 10-1856). The Joneses have not alleged that they have satisfied their obligations; thus, their quiet title action must fail. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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