United States District Court, E.D. Virginia, Richmond Division
JOHN A. GIBNEY, Jr., District Judge.
In 2011, Johnny Harrison defaulted on his home mortgage, so U.S. Bank foreclosed on his home. Harrison brings this suit for breach of contract, alleging that U.S. Bank unlawfully foreclosed on his home in violation of terms of the loan agreement, costing him ownership, equity, and increase in the value of his home, and damaging his credit record. U.S. Bank filed this motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
In 2005, Harrison purchased a property in Chesterfield County, Virginia, by entering into a mortgage loan evidenced by a note and secured by a deed of trust. U.S. Bank currently holds the note. Both the note and the deed of trust provide that if the borrower defaults, the lender may accelerate the loan after giving notice of default and thirty days to cure. The note defines the thirty-day notice period as starting when the notice is "mailed or... delivered by other means." The deed of trust states cure date must be "not less than 30 days from the date the notice is given to the Borrower."
After defaulting on the loan, Harrison received a letter from U.S. Bank dated April 2, 2011, stating that he must cure the default by May 2, 2011, or risk acceleration and foreclosure. Although dated April 2, 2011, the letter was mailed on April 7, 2011, giving Harrison only twenty-five days to cure the default. Harrison did not cure, and on July 13, 2011, his home was sold in a foreclosure sale. He filed this action on October 7, 2014.
Harrison makes one claim: breach of contract. U.S. Bank argues Harrison fails to state a claim for three reasons. First, U.S. Bank did not breach because it did not foreclose on Harrison's home until more than thirty days after sending the notice letter. Second, Harrison alleges no injury resulting from the insufficient notice. Finally, the alleged breach was not material.
A plaintiff claiming breach of contract under Virginia law must establish: (1) the defendant owed the plaintiff a legally enforceable obligation; (2) the defendant breached or violated that obligation; and (3) the breach injured the plaintiff. Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 516, 758 S.E.2d 55, 60 (2014) (citing Filak v. George, 267 Va. 612, 619, 594 S.E.2d 610, 614 (2004)).
1. Legally Enforceable Obligation
Harrison pleads facts sufficient to conclude that U.S. Bank owed him a legally enforceable obligation. The note and deed of trust clearly set forth requirements with which U.S. Bank must comply. Both documents state that when a borrower is in arrears, the lender must send a notice of default giving the borrower thirty days to cure before acceleration and possible foreclosure. The note and deed of trust obligated U.S. Bank to provide Harrison with thirty days' notice before acceleration and foreclosure.
Harrison also pleads facts sufficient to conclude that U.S. Bank breached its obligation to him. Harrison alleges that he received only twenty-five days' notice, which is a breach of U.S. Bank's obligation to provide him with thirty days' notice.
U.S. Bank's argument that there was no breach because it did not foreclose on Harrison's home until more than three months after giving notice misses the point. The note and deed of trust clearly require that the notice letter give the borrower at least thirty days to cure, measured from the date notice is given. Any notice specifying a date that is less than thirty days from the date notice is given would constitute a breach of the note and deed of trust, regardless of when U.S. Bank foreclosed. Harrison claims that U.S. Bank only gave him twenty-five days' notice, sufficiently alleging that U.S. Bank breached its obligation.
Moreover, the Supreme Court of Virginia has clearly held that when a deed of trust requires a specific length of notice prior to acceleration, that length of notice serves as a condition precedent to acceleration and foreclosure. Bayview Loan Servicing, LLC v. Simmons, 275 Va. 114, 121, 654 S.E.2d 898, 901 (2008). When the holder of a deed of trust does not fulfill the condition precedent, the holder does not have the right to accelerate payment or to foreclose on the property. Id. Harrison has ...