Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garcia v. U.S. Bank

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

October 13, 2015

DANILO GARCIA and TERESA GARCIA
v.
U.S. BANK, Defendant

Page 491

          For Plaintiffs: John E. Bedi, Esquire, Chesapeake, VA.

         For Defendant: Timothy J. St. George, Esquire, Troutman Sanders LLP, Richmond, VA.

Page 492

         MEMORANDUM ORDER

         Rebecca Beach Smith, Chief United States District Judge.

         This matter comes before the court on the Motion to Dismiss (" Motion" ), ECF No. 5, and Memorandum in Support, ECF No. 6, filed by the Defendant, U.S. Bank, on September 10, 2015. The Plaintiffs, Danilo Garcia and Teresa Garcia, filed their Response, ECF No. 7, and Memorandum in Opposition, ECF No. 8, on September 24, 2015. The Defendant filed its Reply on September 30, 2015. ECF No. 9. This matter has been fully briefed and is ripe for review.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Because this matter arises from a motion for dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the sparse facts alleged in the Complaint are assumed to be true and viewed in the light most favorable to the Plaintiffs.[2] In February 2004, the Plaintiffs entered into a loan agreement (" Agreement" ) with the Defendant to finance the purchase of a boat. Compl. ¶ 4, ECF No. 1-1. The Plaintiffs borrowed $87,000, plus financing fees, and granted the Defendant a security interest in the boat as collateral for the loan. Id. ¶ 6, Ex. A, ECF No. 1-2. Under the terms of the Agreement, the Plaintiffs were to make set monthly payments for 180 months, beginning April 4, 2004. Id.

Page 493

Ex. A. The Plaintiffs would be in default on the contract if (1) they failed to perform any obligation undertaken in the contract, or (2) the Defendant, in good faith, believed the Plaintiffs could not, or would not, pay or perform the obligations undertaken in the contract. Id. The Agreement further stipulated that the Defendant could not accelerate payment or repossess the secured property because of late payment or non-payment of an installment if the Plaintiffs made full payment within ten days of the date on which the installment was due. Id.

         The Agreement also specified the remedies available to the Defendant if the Plaintiffs were in default. One remedy was to take immediate possession of the secured property by legal process or self-help. Mem. Supp. Ex. A, ECF No. 6-1.[3] The Defendant could then sell the property and apply the proceeds to the costs of the sale and the Plaintiffs' outstanding obligations. Id. If notice of an intended sale of the property was required, the parties agreed notice would be reasonable if mailed to the Plaintiffs' address, as reflected in the Defendant's records, at least ten days prior to the date of the intended sale. Id. Finally, the Defendant was authorized to take possession of any personal property left on the secured property when the secured property was taken into possession, subject to the Plaintiffs' right to recover such property. Compl. Ex. A.

         On October 31, 2014, the Defendant repossessed the Plaintiffs' boat from a storage facility. Id. ¶ ¶ 7, 9. The Defendant then sold the boat on November 19, 2014. Id. ¶ 11. Personal property stored on the boat was also taken and never returned to the Plaintiffs. Id. ¶ ¶ 14, 22. The Plaintiffs allege this repossession was wrongful because they were not in default on the loan and had made all monthly payments due. Id. ¶ ¶ 8, 9, 11, 16.

         The Plaintiffs filed a Complaint in the Circuit Court for the City of Norfolk, Virginia, on August 4, 2015, alleging four claims arising from the repossession of the boat and the property stored thereon. The Defendant removed the case to this court on September 9, 2015, based upon 28 U.S.C. § 1332 (diversity jurisdiction). Notice of Removal, ECF No. 1. On September 10, 2015, the Defendant filed the instant Motion, arguing that the Complaint fails to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). ECF No. 5.

         II. STANDARD OF REVIEW

         Pursuant to Rule 12(b)(6), a complaint must be dismissed when a plaintiff's allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; it does not resolve contests surrounding the facts of the case, the merits of a claim, or the applicability of any defense. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility means that

Page 494

a " plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.