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Yerion v. Branch Banking & Trust Co.

United States District Court, E.D. Virginia, Norfolk Division

March 5, 2014

MARY ANNE YERION, Plaintiff,
v.
BRANCH BANKING & TRUST COMPANY, Defendant

Decided Date: March 4, 2014.

For Mary Anne Yerion, Plaintiff: Douglas Eugene Kahle, LEAD ATTORNEY, Glen Michael Robertson, Wolcott Rivers Gates P. C., Virginia Beach, VA.

For Branch Banking and Trust Company, Defendant: Alan Durrum Wingfield, Nicholas Richard Klaiber, Virginia Bell Flynn, LEAD ATTORNEYS, Massie Payne Cooper, Troutman Sanders LLP (Richmond), Richmond, VA.

Page 678

MEMORANDUM OPINION AND ORDER

Raymond A. Jackson, United States District Judge.

Before the Court is Defendant Branch Banking & Trust Company's (" Defendant" or " BB& T" ) Motion to Strike or, in the Alternative, Motion to Dismiss Plaintiff Mary Anne Yerion's (" Plaintiff" ) First Amended Complaint (ECF No. 14). Having carefully considered the parties' pleadings, this matter is now ripe for disposition. For the reasons set forth herein, the Motion to Strike is DENIED and the Motion to Dismiss is GRANTED-IN-PART and DENIED-IN-PART.

I. FACTUAL AND PROCEDURAL HISTORY

According to the Amended Complaint, on April 20, 2005, Plaintiff conveyed a property she inherited in Onancock, Virginia (" the Property" ) to herself and her son, Roland Dale Yerion, Jr., as joint tenants with the right of survivorship. Pl.'s Am. Compl. ¶ 5. In September 2005, Plaintiff moved to Marion, Kansas. Id. at ¶ 6. On May 6, 2008, Roland Yerion received a $30,000 business loan from Defendant using the Property as collateral without notifying his mother. Id. at ¶ ¶ 9, 13. A Deed

Page 679

of Trust was prepared and filed by Roland Yerion and Defendant's employee, Patricia Roberts. Id. at ¶ ¶ 13-15. The Deed of Trust included a notarized signature for a " Mary Anne Yerion." Id. at ¶ 20. Plaintiff maintains that the Deed of Trust is fraudulent because she never appeared before Patricia Roberts to sign any document. Id. at ¶ ¶ 20-26. On March 26, 2013, after Roland Yerion defaulted on his business loan, Defendant foreclosed on the Property and sold it to a third party. Id. at ¶ ¶ 28, 40. Before the foreclosure and sale, Defendant sent notices of its intent to foreclose to Plaintiff's attention at the Property's address in Onancock, Virginia. Id. at ¶ 38. However, Defendant did not send notices to Plaintiff's address in Kansas despite the fact that Defendant regularly mailed bank statements unrelated to the loan to Plaintiff in Kansas. Id. at ¶ ¶ 37-38.

Plaintiff filed a Complaint against Defendant in the Circuit Court for the County of Accomack, Virginia. On June 6, 2013, Defendant filed a Notice of Removal to remove the case to federal court. On July 12, 2013, Defendant filed a Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim. This Court granted Defendant's Motion to Dismiss on October 17, 2013, finding that Plaintiff's Complaint failed to provide legal allegations or discuss the application of governing law to distinct causes of action against Defendant. Mem. Op. Order, Oct. 17, 2013 (ECF No. 10). This Court also granted Plaintiff leave to amend her Complaint. Id.

Plaintiff filed an Amended Complaint in the United States District Court for the Eastern District of Virginia, Norfolk Division, on November 4, 2013 (ECF No. 11). The Amended Complaint alleges causes of action for wrongful foreclosure based on insufficient notice under Virginia Code § 55-59.1 and slander of title under Virginia common law. Defendant filed the instant Motion to Strike or, in the Alternative, Motion to Dismiss the Amended Complaint (ECF No. 14) along with a supporting memorandum (ECF No. 15) on November 21, 2013. Plaintiff's Response Memorandum in Opposition to Defendant's Motion to Strike or Dismiss (ECF No. 21) was received on December 12, 2013. Defendant then filed a Reply in support of its Motion to Strike or Dismiss (ECF No. 24) on January 13, 2014.

II. LEGAL STANDARD

A. Computation of Filing Deadline

Federal Rule of Civil Procedure 6 governs the computation of time for complying with court deadlines. For deadlines given in numbers of days, the day of the triggering event is excluded from the period. Fed.R.Civ.P. 6(a)(1)(A). Then, every day is counted forward including weekends and holidays. Fed.R.Civ.P. 6(a)(1)(B). Rule 6(d) grants three extra days to the computation of time dictated under Rule 6(a) as follows:

When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C) [relating to service by mail], (D) [relating to service by court clerk], (E) [relating to service by electronic means], or (F) [relating to service by consented means], 3 days are added after the period would otherwise expire under Rule 6(a).

Fed. R. Civ. P. 6(d). Federal Rule of Civil Procedure 5(b)(2)(E) specifies one of the situations where Rule 6(d) applies: " A paper is served under this rule by . . . (E) sending it by electronic means if the person ...


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