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Sibert v. Wells Fargo Bank NA

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

May 4, 2016

RICHARD D. SIBERT, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

MEMORANDUM OPINION (CROSS MOTIONS FOR SUMMARY JUDGMENT)

Henry E. Hudson United States District Judge

This matter arises from the alleged wrongful foreclosure of Plaintiff Richard D. Sibert's ("Sibert" or "Plaintiff) residential property by Wells Fargo Bank, N.A. ("Wells Fargo"). Sibert, a Sergeant in the United States Army, alleges that the foreclosure violated the Servicemembers' Civil Relief Act ("SCRA" or "Act"), which prohibits foreclosure on a servicemember's property during a period of military service without a court order. 50 U.S.C. Appx. § 533(c) (hereinafter, "SCRA § 533(c)")[1].

The parties filed cross-motions for summary judgment, through which Wells Fargo raised the issues of judicial estoppel and standing. The Court heard oral argument on the issue of judicial estoppel on June 23, 2015. Having determined that judicial estoppel does not bar Plaintiffs SCRA claim, the issue became whether Plaintiff, in his individual capacity, had standing to maintain the action due to his 2011 voluntary Chapter 7 bankruptcy case. The Court stayed the matter pending the reopening of Plaintiffs bankruptcy case to allow Sibert's trustee in bankruptcy the opportunity to pursue or abandon the present cause of action. (ECF No. 68.) The trustee having been substituted as the proper party in interest, the Court confirmed the existence of standing and lifted the stay by Memorandum Order entered on March 4, 2016 (ECF No. 75).

The matter is again before the Court on the parties' cross-motions for summary judgment (ECF Nos. 21, 28). The Court will dispense with oral argument as to remaining issues raised in the parties' motions, as they have been adequately briefed, and oral argument would not aid in the decisional process. See E.D. Va. Loc. Civ. R. 7(J). For the reasons stated herein, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiffs Motion for Summary Judgment.

I. Background

In reviewing cross-motions for summary judgment, the Court will consider each motion separately on its own merits to determine if either party deserves judgment as a matter of law. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citations omitted). In considering each motion, the Court will exercise great care to resolve any factual disputes and "competing, rational inferences" in the light most favorable to the opposing party. Id. (internal quotation marks and citation omitted).

At the outset, the Court notes that both Plaintiffs Brief in Support of his Motion for Summary Judgment and his Brief in Opposition to Wells Fargo's Motion for Summary Judgment fail to include specifically captioned sections listing all material facts as to which he contends are undisputed or genuinely in dispute, respectively, as required by E.D. Va. Loc. Civ. R. 56(B)[2] and consistent with Fed.R.Civ.P. 56(c)(1). Under the Local Rules, the Court may accept those facts identified by the movant as undisputed to be admitted, as well as assume admitted those facts not disputed by reference to record evidence. E.D. Va. Loc. Civ. R. 56(B). Despite Plaintiffs failure to set forth such designations, this Court has made a reasonable effort to search the record in an attempt to identify those facts that are genuinely in dispute and those that are undisputed. Where appropriate, however, the Court reserves the right to consider Wells Fargo's statement of the facts as undisputed, as permitted by the Local Rules and Fed.R.Civ.P. 56(e).

The Court has concluded that the following narrative represents the undisputed facts for the purpose of resolving the cross-motions for summary judgment:

Sibert entered the United States Navy on July 9, 2004. (PI. Mem. in Supp. Mot. Summ. J., Ex. 2, ECF No. 21-2; Def. Mem. in Supp. Mot. Summ. J., Ex. A, PI. Resp. to Req. for Admis. ¶ 7, ECF No. 29-1, at 3, 44.) On May 15, 2008, while on active duty, Sibert obtained a loan in the amount of $174, 650.00, secured by a Note and Deed of Trust, and purchased a residential property at 3706 Northwood Court, Virginia Beach, Virginia 23452. (ECF No. 21-1; ECF No. 21-2; ECF No. 29-1 at 1-2, 44; ECF No. 29-2; ECF No. 29-3.) Sibert was honorably discharged from the Navy on July 8, 2008. (ECF No. 21-2.)

In March 2009, eight months after Plaintiffs discharge, Wells Fargo instructed its trustee to commence foreclosure proceedings on Sibert's home. (ECF No. 21-3.) In April 2009, Sibert re-entered the service by joining the United States Army, and presently remains on active duty. (ECF No. 21 at 2.) A foreclosure sale was held on May 13, 2009, at which Sibert's home was sold. (ECF No. 21-4.) On June 4, 2009, Sibert executed a "Move-Out Agreement, " entitling him to $2, 000.00 to assist with relocation efforts. He also executed a W-9 Form in order to receive the relocation funds. The 3706 Northwood Court property was thereafter conveyed to two individuals by deed, dated September 11, 2009. (ECF No. 29-6.) Subsequently, on October 27, 2009, Sibert executed a "Servicemembers Civil Relief Act Addendum to Move-Out Agreement." (ECF No. 29-1 at 43.)

On January 25, 2011, Sibert filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Virginia, Case No. 11-70302. (ECF No. 29-7.) Sibert's bankruptcy petition and schedules do not list any claims or potential claims against Wells Fargo as an asset or otherwise. (ECF No. 29-8.) On May 9, 2011, Sibert received a complete discharge pursuant to 11 U.S.C. § 727. (Id.)

Plaintiff filed suit on October 29, 2014. (Compl., ECF No. 1.) He filed a Motion for Summary Judgment on March 4, 2015 with a Memorandum in Support thereof. (ECF No. 21.) Wells Fargo filed a Memorandum in Opposition to Plaintiffs Motion for Summary Judgment on March 17, 2015 (ECF No. 24), and then filed its Motion for Summary Judgment with a Memorandum in Support thereof on April 2, 2015 (ECF Nos. 28, 29). Plaintiff responded to Wells Fargo's Motion for Summary Judgment on April 6, 2015 (ECF Nos. 30, 31), and Wells Fargo replied on April 9, 2015 (ECF No. 32).[3]

II. Standard of Review

The standard of review for cross motions for summary judgment is well-settled ...


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