-TEM Estrella et al v. Wells Fargo Bank, N.A. et al, No. 2:2011cv00414 - Document 14 (E.D. Va. 2011)
Court Description: OPINION AND ORDER that Defendants' Motion to Dismiss is GRANTED. Plaintiffs' request for leave to amend is denied as amendment would be futile. Signed by District Judge Mark S. Davis and filed on 12/28/2011. (rsim)
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UNITED STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Norfolk Division HIPOLITO J. ESTRELLA, and SALVACION H. ESTRELLA, Plaintiffs, v. Civil Action No.2:Ilcv414 WELLS FARGO BANK, N.A., and THE FEDERAL HOME LOAN MORTGAGE CORPORATION and SAMUEL I. WHITE, P.C., Defendants. OPINION AND This filed the by matter the Federal Samuel I Hipolito of notice Home Loan White, J. allege that Bank, Wells foreclosing to on a Motion N.A. H. Fargo ("Freddie provide adequate Plaintiffs' home. Dismiss Fargo"), Mac"), and "Defendants"). Estrella violated to ("Wells (collectively, Salvacion failing on Corporation ("White") and to Court Fargo Mortgage P.C. by the Wells Estrella trust prior before Defendants, "Plaintiffs") deed is ORDER (collectively, the terms of a pre-acceleration In support of their 12(b)(6) record Motion conclusively contractual briefs the unnecessary, record, the and the Civ. Motion R. to the and For is Fed. the that arguments process argument. that R. Civ. following a of the is adequately not P. the hearing are would the with examination determines legal argue compliance After decisional 7(J). Dismiss full Court facts significantly by oral Loc. Defendants requirements. as presented, Dismiss, demonstrates notice and to be 78 (b) ; reasons, aided E.D. Va. Defendants' GRANTED. I.FACTUAL AND PROCEDUAL HISTORY1 On home May 20, 2008, mortgage loan ("Prosperity").2 such mortgage prior to facts are assumed true mortgage accepts for the 20, the facts examine by (E.D. 958 documents mortgage before error Va. 762 attached date this is Court, contained Accordingly, Plaintiffs to in the entered the 20, the into into a Company 5 6. the Bank of Simons (4th Compl. Cir. acknowledge the into Court is also exhibits 769 or F. Supp. Montgomery Cnty. 1985)). Here, that A. In the Complaint. Pis.' accepts May 20, with Prosperity. a mortgage v. 2009). Court as Am., v. reveal Ex. motion entered Though attached and Ltd. (4th Cir. Complaint, Complaint 2008. the Plaintiffs v. required Chevrolet, 255 (citing 31 the deciding 250, Little Plaintiffs Complaint that the Plaintiffs Court of Compl. 30, to Plaintiffs' "documents F.2d May F.3d in 2011) notice Nemet 2010. reference." Officers, from slates any Mortgage give purpose 591 May 2d Police Inc., entered Specifically, Court. on to to debt. drawn erroneously incorporated 954, the true as permitted lender are borrowers, The deed of trust associated with the before Complaint of as Prosperity 6. the here Consumeraffairs.com, the f required recited currently with Compl. acceleration 1 The 2 The Plaintiffs, Mem. 2008, the their the proper brief typographical in as Opp'n the 1. date "notice the shall date the be specify cured must execution, notice arrears, requirements Although to foreclose the summer 19, 2009, in Plaintiffs notice, Wells the bid and later Compl. fSl 26-27. land records, detainer summons against Court the of That of court Plaintiffs City entered appealed City of Chesapeake. Compl. 3 not The appeal record in the does unlawful Virginia. in ruling to favor the as Ex. was to White At Fargo high filed the made bidder to filed in an unlawful General District Compl. of 19, failed Wells the notice 20-21. deed Mac in 1 to Such instructed 1S[ rights into the letter trustee's Plaintiffs judgment such its 14. 17-19 Compl. 2010, Freddie Chesapeake, a 20, A and with Compl. 5 notice comply such its Wells fell default thereafter July assigned Compl. trust. default and M to that home. on a from after note, Compl. of Fargo the payments send deed days Sometime such note. purports contend conducted public 22. 2009. 30 which mortgage of of the sale, the f to foreclosure Mac. the Fargo Plaintiffs' Freddie A, holder on highest Ex. than by mortgage forth adequate Borrower, assigned as less Wells July set to not Plaintiffs' during dated date, Compl. rights 2009, a given ." prompting Plaintiffs provide . asserts During B. . is Prosperity Fargo now letter, . ... n Freddie Circuit Court 28 & Mac, for 30. and the fS[ 28 & 30.3 reflect detainer the status action. of the state-court Plaintiffs of the the City initiated of United Chesapeake. States Virginia, corporation. by Wells See Fargo notice Plaintiffs to Plaintiffs' seek: from Plaintiffs foreclosure an not sale. II. Rule when a complaint granted. a district the 12 (b) (6) Fed. consistent and with a state P. 12 (b) (6). the the of as a sent with the Compl. ff breached the caused caused damage to Accordingly, title, including (2) declaratory costs letter dealing, 34. deed; 1452(f). comply Fargo and federal § trust. fair 1 defendant to must District an compensatory judgment associated that with the OF REVIEW Civ. R. to 36-38. STANDARD permits of quiet a for fails court complaint (3) responsible M and trustee's and to Court case U.S.C. Wells Compl. Mac's Compl. deed to the Eastern 12 distress, order Fargo; removed fails that faith rating. Freddie are allege Circuit acceleration 2009 the emotional (1) Wells the of the status 1442; in good suffer striking damages of Mac's that summer further for § asserts credit Plaintiffs the provision covenant in Court U.S.C. the Plaintiffs implied order in suit then Freddie 28 Complaint contractual 18-20. on instant Defendants District relying Plaintiffs' the "assume a claim the existence complaint's of In to upon move for which relief assessing truth of any fact all allegations." such facts that dismissal can E. a can motion, alleged be Shore be in proved, Mkts., Inc. v. J.D. 2000) . Assocs. While light most elements for district favorable of further a a cause factual Rule be claim v. Twombly, Johnson, plausibility to raise a assumption (even if light Pursuant all R. in the a Civ. the above fact)." showing P. to Rule 12(d), accord the 550 above requirement Civ. of that a the to "a be level 555 is is v. such enough on are the true (internal applied short a Corp. satisfy must at pleader state Atl. complaint standard only complaint Giarratano To U.S. v. and in plain entitled to 8 (a) (2) . materials dismiss 12(d). the favor, speculative in Twombly, always, 2009). allegations allegations facts (4th Cir. 2008). the of Ltd. Bell Cir. "[f]actual well-pled face." its the devoid facts (4th R. P. on in conclusions, "enough 302 relief As to allege (2007); the claim motion not facts Cir. Chevrolet, plaintiff's 570 298, to considering converts in {4th assertions 255 544, 8(a)'s Fed. Fed. U.S. that relief." facts the constitute F.3d 250, plausible right of 591 bare to 180 "legal Nemet is standard Rule fail 175, construe and does F.3d statement from the omitted). of action, Inc., F.3d plaintiff, it doubtful citation the if 550 521 must that relief 213 purposes." viewing dismissed to court to of 12(b)(6) After P'ship, enhancement Consumeraffairs.com, must Ltd. the Court outside into However, a is the motion such generally pleadings for summary prohibition does prohibited unless it judgment. not apply to documents Am. are Chiropractic Cir. 2004) 618 (4th was [if] v. in expressly Trigon (quoting Cir. evidence] it that integral to and the plaintiffs do v. 1. The governs Lee v. parties the contract (discussing trust and Board issue of of whether law."). Under acceleration] foreclosure parties." 121, 654 In lender a Loan 898, the the 901 609, [extrinsic complaint the of fact of 800, law, state 803 [if] complaint and that a of LLC deeds of Kestler 1995) {"[T]he governed by state in which [pre- in advance contract v. Va. law); Cir. lender See (E.D. concerning is law Court. 943-44 manner by Virginia this 940, (4th "the Contract contract exists matter Servicing, 2d questions right a a Breach Supp. provided" "remains Bayview violated is F.3d authenticity.'"). the of F.3d Virginia sale Simmons, F. questions 48 in currently before 739 contract notice S.E.2d dispute questions Trustees, 190 of Contract Claims not as (4th DISCUSSION adjudication mortgages 234 consider the See 212, Inc., on its to Allege Inc., Int'l relied complaint. F.3d dismiss Fail do Citimortgaqe, 2010) v. Plaintiffs 367 to challenge Breach the may explicitly not in court whether III. A. LCI ("MA] determining on Healthcare, Phillips 1999)) relied between Simmons, 275 Va. of a the 114, (2008). Supreme mortgage Court of contract Virginia determined at in issue that that case a when the lender failed to provide the borrower in advance 654 S.E.2d at 901-02. acquired the the the Id. facts of Simmons, right to foreclose acceleration notice that to Fargo failed Plaintiffs argue never be Id. in that, acquired comply afforded at similar the days to on the contractual because 30 never foreclose the with to 120-22, Simmons and property to acceleration sale. accelerate Plaintiffs' letter of lender Plaintiffs Wells on the right Here, notice foreclosure Thus, contractual property. requirement of proper the pre- contractual to cure any default. It is undisputed that on notice letter to Plaintiffs, Plaintiffs would were accelerate outstanding Deed be of class added) . the if B; have sent of the Defs.' dispute the date mailing ("The of note that been when by do letter Mem. as Ex. of to Fargo sent 19, 19, that Wells paid the at 1. Paragraph to Borrower Borrower when a 2009, a 2009. 19, first 2009, and as 15 bar date point out, code. nor Pis.' Mem. . the Complaint letter, . . ."). notice (emphasis as Defendants mail See 2009 by 19, 1 the shall A, Plaintiffs' July mailed of . Borrower's July such . Ex. certified of . Fargo entire 15 to Compl. challenge delivery on Wells and delivered n.3. July letter was mailed loan notice means." bears 5 B, "[a]ny not 2009, Plaintiffs unless actually dated July method their given other Plaintiffs is on Compl. states or letter face Ex. to mail address the 19, via certified mail,4 indicating that default balance. Trust deemed 4 Such in July Compl. does dispute in not the Opp'n 7 of notice, afforded but instead Plaintiffs argue only that eleven the days notice to letter satisfy the improperly outstanding balance. The the notice letter to paragraph brought be first current accelerate August 18, Mortgage 19, the B, at solely that Central Time excerpt, as you . states: must . . quoted less than pay: ." by 30 provision Plaintiffs, days from the which the 31, added). date to of Plaintiffs can necessary added). Complaint and provision possibility July appears loan 2009, the cite an PM such payment mailing, of of 2:00 Although require only in [contractual subsequent by (emphasis your (emphasis avoid $2,596.54 Id. from a states become Plaintiffs' on "To on pursue 1 statement, focus clearly will and clear letter relevant it Note Ex. 2009, payments 2009, opposition in date July such acceleration a by on "[ujnless Compl. Notwithstanding the that your remedies]." brief sent on entire excerpt reads: To avoid the possibility $2,596.54 by July of acceleration 31, 2009, $3,843.98 by August 18, in Id. CERTIFIED (emphasis clearly amount merely default to added). provision is funds, Wells The indicates an remains August option, 18, 2:00 2009, Fargo use 2:00 Home of that the but that 2009. 8 you must pay: PM Central Time or PM Central Mortgage the word earlier the Time, .... "or" payoff deadline in such date for and curing Accordingly, it is clear letter's date of less than . ." Compl. alternative that at Ex. the A, 1 of "or" of the amounts Accordingly, letter [was] well later on 19, is the "a to attempt as the the was the date not Borrower to . avoid the unambiguous use that dates, is conclusively with the 30-day 2009, provision record complied with given alternative the and 2009, Plaintiffs' as paragraph July 18, notice letter, excerpt, comply Since August selective first provision date in notice letter's 22. the payoff record. date from the paragraph word Plaintiffs' requirement. the days the payment notice 30 the the both mailing, opening of that subsequent contractual . notwithstanding provides belied by demonstrates contractual provision issue. 2. Plaintiffs Cannot Recover for Emotional Distress Plaintiffs notice and emotional above, could the notice for such prevail stated distress below, on Wells Compl. was not their they 11 from the 34. Assuming of by For inadequate; breach still Fargo's foreclosure damages. resulting Complaint. that subsequent distress. the recover assert thus, White not contractual inadequate caused reasons claim, recover breach that for for them discussed Plaintiffs arguendo contract could the alleged cannot Plaintiffs the reasons emotional alleged in the The tort, Supreme damages recoverable Wight (2011) 354, for in Cnty. Court 297 behind Fourth 647, conclusion, Circuit's speculative and contemplated by Id. Rice (quoting (4th Cir. there is the may such kind particularly Cas. Co., likely F. when of O'Neal, Supreme "Asuch be they 203 such rule which contract emotional 1004, 1006-07 Contracts v. been contract.'" F.3d 283, the view Va. 353 that "a 2000) is of was a Fire Farm (1981)) 288 that breach State (W.D. § too disturbance Moorehead the have to the 343, are provides or 86 quoted the expressed *the 83, reasoning damages Ass'n, of Va. the Court formed not Isle 224 presumed some are S.E.2d have result.'" (Second) 704 courts to 2d v. Health serious Supp. feelings Explaining that where that Inc. "^absent contract.'" 148, reasonably few recover 123 Restatement A 140, that, to of Virginia Community exception plaintiff a the not v. injury (1982)). parties 2000)). an Va. statement could held breach Serv., 653 has or for 281 Sea-Land S.E.2d this action Nogiec, (quoting Virginia humiliation an v. of & (quoting (emphasis added). Here, exists the in Plaintiffs Virginia defendant's disturbance must be to rely law breach the reserved and . . on assert . plaintiffs for the was was trial.'" view this that "*the issue such that exception serious a Pis.' 10 that particularly Mem. in of whether emotional likely Opp'n 8 result (quoting Moorehead, 123 F. another division argument in Cole 4007672, at *3 Supp. for mortgages of v. Va. not disturbance [i]s Restatement (Second) Virginia the decline rule to of such that under assuming contract, Plaintiffs based on 3. that Plaintiffs Plaintiffs covenant of foreclose 8.1A-304 Code 5 In ("Every Cole, in an the when the recent carve not Plaintiffs this could sustain not open at 149 ("We exception able recover a asserted the does Va. an {quoting Moreover, for case."). the to Id. recoverable of WL emotional 281 out assuming be to the breach of Accordingly, claim for breach exception emotional for exists, damages alleged. fail to Allege claim faith and obligation plaintiffs a Breach of that Wells fair dealing home. contract the to 2011 contracts decision Nogiec, same serious that Nogiec See are Plaintiffs' imposes distress sale on kind the in that (1981)).5 circumstances next good finding of Contracts § 353 not facts a judge l:10-CV-848, result.'" further would No. 2011), a rejected likely damages the LLC, 7, particularly However, recently such invitation and the "'of damages. tort 1007) . Court Sept. Court's Nogiec's contract even a Supreme door this at GMAC Mortgage, (E.D. are 2d or of Compl. duty good alleged defendants Fargo 11 SI faith that breached an instructing 22; within published newspaper. by Implied Duties see the Uniform in they its VA White Code Ann. performance of a to § Commercial suffered notice implied and emotional foreclosure enforcement."); 665, law 671-72 only Devnew (E.D. applies "the commercial law in in Cir. valid and dealing Inc. v. New 520 covenant is (1997) of an that otherwise Inc., No. 2011) at and do not (quoting Ward's a contract WL Equip., Inc., 542 a 535, contract of good 385, order and Equip., S.E.2d the implied the vehicle to create v. *8 Va. faith 493 be (4th "create Ward's 379, at 254 prevented F.3d Washington 1871228, contract Virginia "'cannot in of in contractual Furthermore, dealing Virginia rights." to Va. 2d dealing never rights." added). fair fair is Supp. that exercise covenant 254 F. principle 156 those exist.'" 2011 fact party parties 396 and not Co., Inc., unambiguous 3:10-CV-887, Citimortgage, (E.D. at Va. 385, duties May 493 16, S.E.2d 520) . Here, foreclose the faith & to Am., (emphasis good rewriting N. "basic implied inapplicable the contractual when an Inc., faith "may Grace rights, Holland a although Accordingly, binding is explicit W.R. Brown, good party faith," v. of It a & (discussing covenant its Ltd. fair 516, 2005) that bad 1998). Brown context"). "exercising Vermiculite for the Virginia" discretion from Va. v. Wells on note, notice ("[F]ailure Plaintiffs' and prior Fargo to to Wells had home Fargo exercising cure the the explicit if Plaintiffs provided that default contractual right. on 12 or fell adequate See before into right arrears to on pre-acceleration Compl. the Ex. date A, S[ 22 specified in the notice this covenant of Inc. S.E.2d good v. *9 and sale of to allege fail and fair (finding (1996) bank in did the because loan right to See than claim lending once secured of the Charles 251 Va. of E. 35, WL 466 duties its breach rights 1871228, of implied had the fell plaintiff Brauer implied 2011 company implied 28, exercise for by Property."). breach Washington, plaintiff's foreclose sums the breach more defendant the N.A., no documents"); the the Virginia, nothing a dealing. of explicit into arrears payments). B. Plaintiffs Plaintiffs to of 386 contractual on faith (dismissing duties acceleration NationsBank "the provided in Interest Plaintiffs 382, where at result Security Accordingly, Co., may quiet title purported Compl. that SI a property title.'" next in to good be WL (quoting Maine v. (2009)). "A v. Adams, the title to to Aurora at asserting are *4 order land is various Loan 230, a quiet 238, on claims Va. . order . the or ." premise personal LLC, No. 21, S.E.2d action the . against July 672 title "an striking real Servs., (E.D. to records based certain Va. 13 entitled an public quiet 277 Superior Title including title 2934473, party they subjected Ramirez-Alvarez 2010 case, from not CV-1306, that deed with should to Allege action "'An person assert their trustee's 36. Fail that 1:092010) 862, must 866 plead that they Adams, have 277 Va. superior at Plaintiffs' title to which the thereto claim loan prior and to of Plaintiffs' entire in the that claim that the facts the Compl. forward f the serve relations the in See the notice was inadequate, to and & title the Plaintiffs a plausible right a declaratory for any sale actions issue, 28 notice the Mac for 30. is Court As grounded has have not found stated relief. to State a Claim for Declaratory Relief seek in claim, deed on further Freddie superior and defaulted facts Ill as attached appropriate of from contrary, Plaintiffs Compl. claiming useful the facts documents favor for a no trustee's basis However, looking superior Plaintiffs' recorded such allege not On that note. ruling (citing provides provided property. foreclosure 38. and both Fargo Mac's responsible purported will Wells Plaintiffs Fail not do inferred. record disproves Plaintiffs are be establish that demonstrate C. they Complaint Court's possession because Complaint Id. 866). can Freddie District property." the accelerating acknowledge General that the and the conclusively to S.E.2d at fails title above, their 672 property superior discussed 238, title or the the costs finding purported . the . in (ii) [where] clarifying will 14 and terminate is sought settling the afford the deed." reserved "relief and they with trustee's relief . "that associated "[declaratory purpose and of judgment for (i) legal relief from the the uncertainty, proceeding.'" 1129, Horvath 2010 WL 538039, v. State Farm Douros (E.D. insecurity, Va. In at Horvath, not the on Fire Property ha[d] an foreclosure WL Cas. N.Y., Va. Co., (finding sale has Jan. 508 questionable F. F. conduct declaratory occurred. (citing Supp. declaratory D. has l:09-CV(quoting 2d 479, 482 Complaint in to dismiss. a copy of a proposed judgments are on what basis Federal should Rules allow Court in Opp'n 11. of Civil amendment Va. to v. 2008)) if the have state a can be granted. to Amend grants to the Plaintiffs and amend the pending motion fail submit to further fail to amendment. Procedure "freely 15 the Inc. damages fail leave complaint they propose or Plaintiffs the Co., (E.D. occurred that because "untimely Request for Leave amended Similarly, Ramirez-Alvarez, 615 event Mem. foreclosure relief See request Pis.' the Id. 602, already declaratory Hipaqe alternatively the that The 2d Accordingly, Plaintiffs' Plaintiffs courts to No. Supp. .... claim for declaratory relief on which relief The rise 2010) 29, "[b]ecause occurred obtain *2 589 accrued"). explain giving N.A., determined remedy already at Inc., that court already cannot 2934473, Access2Go, already & of <E.D. appropriate Plaintiffs 2010 *1 district was here, Bank controversy 2007)) . relief the v. and . provide . . that when district justice so requires." Fed. only deny leave to prejudicial the part to of futile.'" No. the v. the Laber not moving pleading & v. Portsmouth 438 considered a Rule Id. Brown at & there the Belt 1974298, Harvey, is or at F.3d *2 has court "should bad faith would have Co. v. (E.D. *1 R. Va. April 404, 426 if (4th "the motion (citing been amendment Line futile 12 (b) (6) Root, A district ^when the amendment would be party, party, 2009 WL amendment." 15(a)(2). opposing survive Kelloqg P. amend a Norfolk amendment could Civ. the 2:08-CV-134, (quoting An R. by United States Inc., 525 F.3d 370, not filed a 3, Cir. ex 2009) 2006)). complaint party motion been M/V Marlin, amended the on opposing rel. 376 Wilson (4th Cir. 2008)). Here, amend, but brief such not Plaintiffs in rather, appear dismissal notice to method that motion was therefore have opposition informal have any of timely. denied as requested dismissal. Even if the leave as adequate, amended because is the filing Plaintiffs' Plaintiffs' could own request amendment would be IV. For reasons leave informally requesting stated such for leave Court survive exhibits for in a their accepts it does subsequent establish leave to to that amend is futile. CONCLUSION above, GRANTED. 16 Defendants' Motion to Dismiss The Clerk is DIRECTED to send a copy of this Opinion and Order to all counsel of record. IT IS SO ORDERED. /s Mark S. UNITED Norfolk, Virginia December 3-3 , 2011 17 STATES Davis DISTRICT JUDGE
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