United States District Court, E.D. Virginia, Norfolk Division
RANDOLPH J. MORRISON, Plaintiff,
WELLS FARGO BANK, N.A., Defendant
For Randolph J. Morrison, Plaintiff: Drew David Sarrett, Henry W. McLaughlin, III, LEAD ATTORNEYS, The Law Office of Henry McLaughlin, P. C., Richmond, VA.
For Wells Fargo Bank, N.A., Defendant: Christy Lee Murphy, LEAD ATTORNEY, Kaufman & Canoles PC (Norfolk), Norfolk, VA; Hunter Wilmer Sims, Jr., LEAD ATTORNEY, Kaufman & Canoles PC, Norfolk, VA.
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson, United States District Judge.
Before the Court is Defendant Wells Fargo Bank, N.A.'s (" Defendant" or " Wells Fargo" ) Motion to Dismiss for Failure to State a Claim against Plaintiff Randolph J. Morrison (" Plaintiff" ). Plaintiff has filed a response. A hearing on this matter will not aid the Court's decisional process. Having carefully considered the parties' pleadings, this matter is now ripe for disposition. For the reasons set forth herein, the Motion to Dismiss the breach of Deed of Trust and breach of good faith and fair dealing claims is GRANTED WITH PREJUDICE and DENIED as to the fraud claim.
I. FACTUAL AND PROCEDURAL HISTORY
On April 19, 2007, the late Mrs. Veola H. Morrison, Plaintiff's mother, entered into a mortgage loan agreement with Defendant for her home property at 1092 Blackburn Lane in Virginia Beach, VA (" Morrison Property" ). PL's Am. Compl. ¶ 3. The loan was evidenced by a Note and secured by a Deed of Trust that named Samuel I. White (" White" ) as trustee. Id. ¶ 4. The Note and Deed of Trust provide that the trustee may invoke the power of sale upon certain conditions. Def.'s Mot. Dismiss 3. The Deed of Trust also provides for the trustee to be removed and a successor trustee to be appointed. Pl.'s Am. Compl. ¶ 8. Equity Trustees LLC was eventually appointed as trustee in place of White through the execution of an Appointment of Substitute Trustee two-page document. Pl.'s Opposition to Mot. Dismiss 9.
Mrs. Morrison died intestate in 2009. Id. at 5. Defendant began foreclosure proceedings on the Morrison Property and
intended to foreclose on January 19, 2011. Def.'s Mot. Dismiss 3. On January 7, 2011, Plaintiff wrote a letter to Well Fargo Bank's Loss Mitigation Department,notifying Defendant that he wished to assume the mortgage on the Morrison Property and discuss an interest rate reduction to lower loan payments. Pl.'s Opposition to Mot. Dismiss 6. Then, on January 12, 2011, Plaintiff maintains that he had a telephone conversation with a Wells Fargo employee who assured him that he was approved for a loan modification and the foreclosure would not take place on January 19, 2011. Id. Plaintiff also contends that Defendant sent him a letter dated January 14, 2011, addressed to " Estate of Veola H. Morrison, c/o Randolph S. Morrison," which offered him a Special Forbearance Agreement, specified that the first payment was due on February 1, 2011, and stated that Defendant would " instruct its foreclosure counsel to suspend foreclosure proceedings once the initial installment has been received, and to continue to suspend the action as long as you keep to the terms of this Agreement." Id. at 6-7. On January 19, 2011, Equity Trustees LLC conducted a foreclosure auction and the Morrison Property was sold to HSBC USA. Id. at 9. The Morrison Property was later sold to a third party. Id. at 10.
On February 15, 2012, Plaintiff filed a Complaint against Defendant in the Circuit Court for the City of Virginia Beach, Virginia. After Defendant filed and scheduled for hearing a Motion Craving Oyer and a Demurrer, Plaintiff filed a Motion for Nonsuit, which was granted on July 25, 2012. On January 22, 2013, Plaintiff again filed a Complaint against Defendant in the Circuit Court for the City of Virginia Beach. On October 23, 2013, Defendant simultaneously filed a Notice of Removal to remove the case to federal court and a Motion to Dismiss. Plaintiff then filed an Amended Complaint on November 8, 2013. On November 15, 2013, Defendant filed the instant Motion to Dismiss Plaintiff's Amended Complaint (" Motion to Dismiss" ) for failure to state a claim. On November 29, 2013, Plaintiff filed a Memorandum in Opposition to Defendant's Motion to Dismiss his Amended Complaint (" Opposition Memorandum" ). On December 4, 2013, Defendant filed a Reply to Plaintiffs Opposition Memorandum. Plaintiff and Defendant both requested a hearing on this matter.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that, in addition to a statement of the court's jurisdiction and a demand for relief, a complaint must contain a " short and plain statement of the claim ...