United States District Court, W.D. Virginia, Lynchburg Division
Jay T. Yancey and Melinda O. Yancey, Plaintiffs,
The First Bank and Trust Company, Defendant
K. MOON UNITED STATES DISTRICT JUDGE
Norman K. Moon
matter is before the Court upon Defendant’s motion to
dismiss. Dkt. 10. Plaintiffs Jay T. Yancey and Melinda O.
Yancey (“Plaintiffs” or “Yanceys”)
filed this action against The First Bank and Trust Company
(“Defendant” or “First Bank”) for
allegedly violating numerous state and federal
laws. Because the Yanceys’ complaint is
built upon conclusory allegations and does not plead
sufficient facts to maintain any of the alleged claims, I
will grant Defendant’s motion.
FACTS AS ALLEGED
allege the following facts: In August 2012, Melinda Yancey
contacted Carey Wrenn (“Wrenn”), a lending
officer at First Bank, seeking a loan for the construction of
a home. Compl. ¶¶ 10–13. Wrenn requested that
the Yanceys provide him with their tax returns. Id.
On September 11, 2012, Mrs. Yancey met once again with Wrenn
to discuss the Yanceys’ credit scores and financial
status. Id. at ¶ 19. On September 20, 2012,
Wrenn completed an initial credit memo stating that he was
inclined to consider a loan request of $180,000. Id.
at ¶21; see also dkt. 2-1 at 24–26. On
the same day, Mrs. Yancey provided Wrenn a personal financial
statement. Id.; see also dkt. 2-1 at
this initial credit memo and personal financial statement,
Wrenn failed to immediately provide the loan documentation.
Id. at ¶ 23. The lack of promptness frustrated
the Yanceys who began to constantly contact Wrenn about their
loan status. Id. at ¶ 22–42. On December
3, 2012, Wrenn emailed the Yanceys stating that “I am
leaning toward financing the project.” Id. at
¶ 35. On December 21, 2012, Wrenn emailed again stating
that: “While I know you are eager to get this done and
are concerned about the weather, I have not told you to move
forward with construction and I have not agreed to a funding
date. I know this has drawn out longer than you expected and
longer than I desired.” Id. at ¶ 43.
Plaintiffs continued to inquire with Wrenn about their loan
status. Ultimately, Wrenn became frustrated by these
inquiries and hostile toward the Plaintiffs. Id. at
January 11, 2013, First Bank and the Yanceys met to close the
loan and set up a construction bank account. Id. at
¶ 55. On that same day, First Bank deposited the first
draw of $33,000 into the construction bank account.
Id. at ¶¶ 52, 59. On February 4, 2013,
First Bank deposited the second draw of $20,000 based on the
status of the home construction. Id. at ¶ 63.
April 2013, First Bank increased the loan amount to $220,000
and agreed to renew the maturity date. Id. at
¶69. First Bank also agreed to provide an additional
$7,000 loan to the Yanceys’ company, New Life
Construction of VA, Inc. Dkt. 2-1 at ¶¶
73–74. In April 2014, First Bank agreed, once again, to
a loan increase of an additional $33,000-the estimated cost
to complete the home construction. Compl. ¶ 76.
the Yanceys defaulted on their loans and First Bank initiated
foreclosure proceedings on the property. The foreclosure sale
was set for July 24, 2015; however, the Yanceys filed for a
Chapter 13 bankruptcy petition on July 20, 2015. On June 23,
2016, based on default, the United States Bankruptcy Court
dismissed the Plaintiffs’ bankruptcy petition.
STANDARD OF REVIEW
evaluating a Rule 12(b)(6) motion to dismiss for failure to
state a claim, the Court must accept as true all well-pleaded
allegations. See Vitol, S.A. v. Primerose Shipping
Co., 708 F.3d 527, 539 (4th Cir. 2013); see also
Erickson v. Pardus, 551 U.S. 89, 94 (2007). “While
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quotation marks
omitted). Stated differently, in order 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 (2009) (quoting
Twombly, 550 U.S. at 570).
Virginia Tort Claims
Negligence and Negligent Misrepresentation
Yanceys allege negligence in Counts I (Negligence) and II
(Negligent Misrepresentation). Under Virginia law,
allegations of negligent performance of contractual duties
are not actionable in tort. Dunn Constr. Co. v.
Cloney, 278 Va. 260, 267 (Va. 2009) (“To avoid
turning every breach of contract into a tort, however, we
have consistently adhered to the rule that, in order to
recover in tort, the duty tortuously or negligently breached
must be a common law duty, not one existing between the
parties solely by virtue of the contract.”) (citation
omitted). Therefore, the Plaintiffs must show that the duty
breached was a common law duty arising separately from the
contractual duty. Id.; see also Richmond Metro. Auth. v.
McDevitt Street Bovis, Inc., 256 Va. 553, 559 (Va. 1998)
(“A tort action cannot be based solely on a negligent
breach of contract.”).
the Plaintiffs’ negligence claims arise solely out of
the loan agreements between them and First Bank, and their
complaint lacks any factual ...