United States District Court, E.D. Virginia, Richmond Division
CHARLINE M. WILSON-MCCLAIN, Plaintiff,
SPECIALIZED LOAN SERVICING, LLC, ASSURANT FIELD ASSET SERVICES, and JOHN DOES 1-10, Defendants.
HANNAH LAUCK, UNITED STATES DISTRICT JUDGE
matter comes before the Court on three motions: (1) the
Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by Defendant Specialized Loan
Services, LLC ("SLS"), (ECF No. 6), (2) the Motion
to Remand filed by Plaintiff Charline Wilson-McClain,
proceeding pro se, (ECF No. 12); and, (3) the Motion
to Vacate Foreclosure Judgment also filed by Wilson-McClain,
(ECF No. 14.) Wilson-McClain failed to file a response to the
Motion to Dismiss, and the time to do so has
expired. SLS responded to both the Motion to Remand
and the Motion to Vacate. (ECF Nos. 7, 15.) Wilson-McClain
did not file replies, and the time to do so has expired. The
matters are ripe for disposition. The Court exercises
jurisdiction pursuant to 28 U.S.C. § 1332. The Court
dispenses with oral argument because the materials before the
Court adequately present the facts and legal contentions, and
argument would not aid the decisional process.
reasons that follow, the Court will grant the Motion to
Dismiss; deny the Motion to Remand; and, deny the Motion to
Vacate. The Court will dismiss the Complaint, giving
Plaintiff an opportunity to amend her complaint.
Standard of Review
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1356 (1990)). In considering a motion to
dismiss for failure to state a claim, a plaintiffs
well-pleaded allegations are taken as true and the complaint
is viewed in the light most favorable to the plaintiff.
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993); see also Martin, 980 F.2d at 952. This
principle applies only to factual allegations, however, and
"a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth." Ashcroft v. Iqbal, 556 U.S. 662, 679
Federal Rules of Civil Procedure "require[ ] only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.'" Bell Atl Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (omission in original)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Plaintiffs cannot satisfy this standard with complaints
containing only "labels and conclusions" or a
"formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must assert facts that rise above speculation and
conceivability to those that "show" a claim that is
"plausible on its face." Iqbal, 556 U.S.
at 678-79 (citing Twombly, 550 U.S. at 570;
Fed.R.Civ.P. 8(a)(2)). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. at 678
(citing Twombly, 550 U.S. at 556). Therefore, in
order for a claim or complaint to survive dismissal for
failure to state a claim, the plaintiff must "allege
facts sufficient to state all the elements of [his or] her
claim." Bass v. E.I. DuPont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citations
on a motion under Rule 12(b)(6) ..., matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56, " and "[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion." Fed.R.Civ.P. 12(d); see Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir.
1985). However, "a court may consider official public
records, documents central to plaintiffs claim, and documents
sufficiently referred to in the complaint [without converting
a Rule 12(b)(6) motion into one for summary judgment] so long
as the authenticity of these documents is not disputed."
Witthohn v. Fed. Ins. Co., 164 F.App'x 395,
396-97 (4th Cir. 2006) (citations omitted).
attaches to her Complaint an August 14, 2009 Note between
Branch Banking & Trust and Charline M. McClain and
William E. McClain (the "Note"). (ECF No. 1-2.) SLS
also attaches the Note to its Motion to Dismiss, along with
an August 14, 2009 deed of trust (the "Deed of
Trust"). (ECF Nos. 13-1, 13-2.) No party contests the
authenticity of these documents. Wilson-McClain refers to
both the Note and the Deed of Trust in the
Complaint. Deeming these two documents central to the
claims, the Court will consider the Note and the Deed of
Trust. See Witthohn, 164 F.App'x at 396-97
Procedural and Factual Background
Summary of Allegations in the
Complaint lacks logical flow, rendering Wilson-McClain's
claims difficult to discern. At base, Wilson-McClain contends
that the Defendants, especially Atlantic and SLS, engaged in
wrongful conduct by threatening to begin foreclosure
proceedings on the Property.Wilson-McClain neither disputes
nor admits that she defaulted on her loan. She instead
scatters legal terms associated with various doctrines
throughout her Complaint (and her motions), seeking to
challenge a foreclosure action taken, or threatened, against
her. The Complaint contains unattributed quotes or legal
citations, including record cites to exhibits not filed.
See supra note 4. Wilson-McClain also fails to
elucidate the roles played by the many entities she mentions
in her Complaint.
the complaint liberally, however, Wilson-McClain contends the
following: On August 14, 2009, she and another person entered
into a mortgage loan with Branch Banking and Trust Company
("BB&T") to purchase the property at 7256
Loralea Drive in Mechanicsville, Virginia (the
"Property"). The Note, dated the same day, evinced
the loan. The Deed of Trust, also dated August 14, 2009,
secured the Note and appointed BB&T-VA Collateral Service
Corporation (BB&T-VA") as trustee. At some point,
BB&T and Atlantic transferred their rights under the Deed
of Trust to Morgan Stanley Mortgage Capital Holdings LLC.
SLS, in its role as noteholder and loan servicer, sent
Wilson-McClain several notices about payments she owed
pursuant to the Deed of Trust. In 2012, Atlantic was
appointed substitute trustee. Thereafter, Atlantic began
foreclosure proceedings on the Property.
Complaint lists only one cause of action. However, heeding
the obligation to construe the Complaint liberally, the Court
interprets Wilson-McClain to raise three claims:
Count I: Breach of fiduciary duty by Atlantic for lack of
impartiality, failing to conduct due diligence, and by
initiating a foreclosure action against Wilson-McClain;
Count II: Breach of Contract by SLS; and,
Count III: Fraud against SLS and Atlantic.
same spirit of liberal construction requires the Court to
find that Wilson-McClain has named SLS, Atlantic, and John
Does 1-10 as defendants. Wilson-McClain seeks the following
relief from her claims: (1) compensatory and punitive
damages; (2) injunctive relief to protect or grant relief
from the foreclosure sale; and, (3) declaratory judgment that
SLS has no interest in the Property, and that the Deed of
Trust is a "nullity"; and, (4) an order that the
Deed of Trust be "stricken from the land records."
response to the Complaint, SLS filed its first motion to
dismiss. Wilson-McClain filed her Motion to Remand. SLS
opposed the Motion to Remand. After examining the Complaint
and the Notice of Removal, the Court denied without prejudice
SLS's first motion to dismiss; took under advisement the
Motion to Remand; and, ordered SLS to file a statement
regarding this Court's subject matter jurisdiction.
August 10, 2016, SLS filed its Jurisdictional Statement. That
same day, SLS properly filed a revised Motion to Dismiss.
Wilson-McClain did not respond. On August 26, 2016,
Wilson-McClain filed her Motion to Vacate. SLS responded to
the Motion to Vacate. Wilson-McClain did not file replies,
and the time to do so has expired. For the reasons that
follow, the Court will grant SLS's Motion to Dismiss, and
will deny Wilson-McClain's Motion to Remand, and Motion
to Vacate. The Court will dismiss the Complaint, allowing
leave to amend.
Analysis: SLS Motion to Dismiss
to invoke several theories, Wilson-McClain contends that the
scheduled foreclosure on the Property was unlawful. To
recover her losses for the alleged failures, she filed her
Complaint against the Defendants.
Wilson-McClain Fails to State a Claim for a Breach of
Fiduciary Duty Against Atlantic, the Substitute
fails to state a claim for breach of fiduciary duty against
Atlantic because she cannot identify such a duty within the
Deed of Trust. Further, she has no standing to challenge the
appointment of Atlantic, the substitute trustee. Pending
determination of Wilson-McClain's motions, the Court will
dismiss Count I.
Wilson-McClain Does Not Allege Duties Articulated in the
Deeds of Trust
of trust gives rise to certain fiduciary duties. Carter
v. Countrywide Home Loans, Inc., No. 3:07cv651,
2008 WL 4167931, at *11 (E.D. Va. Sept. 3, 2008) (Dohnal,
J.). However, "deeds of trust are treated under the same
principles as contracts, and the trustee only owes those
duties that are listed in the deed of trust itself."
Id. A trustee under a deed of trust has no due
diligence duty and owes only duties listed in the deed of
trust. Horvath v. Bank of N.Y, N.A., Civil Action
No. I:09cvll29, 2010 WL 538039, at *1 (E.D. Va. Jan. 29,
2010) (Trenga, J.) (dismissing breach of trustee's
fiduciary duty claim and finding that plaintiff did not
allege any such duties existed in the deed of trust or facts
establishing impartiality). Wilson-McClain fails to identify
a fiduciary duty, including any duty of impartiality, within
the Deed of Trust before the Court. Because Atlantic has no
duty of impartiality, even a liberal construction of Wilson-
McClain's claim that Atlantic violated that fiduciary
duty by initiating a foreclosure against her, the borrower,
cannot proceed. Accordingly, Wilson-McClain cannot state a
claim for a breach of fiduciary duty against Atlantic, the
Wilson-McClain Lacks Standing to Challenge Appointment of the
extent that she attempts to challenge the appointment of
Atlantic, the substitute trustee, Wilson-McClain lacks
standing. She is neither a party to the appointment nor the
intended beneficiary of the appointment. Bennett v. Bank
of Am., N.A., No. 3:12cv34, 2012 WL 1354546, at *7 (E.D.
Va. Apr. 18, 2012) (noting that "the validity of the
assignment does not affect whether [a] [b]orrower
owes its obligations, but only to whom [a]
[b]orrower is obligated" (alterations in original)
(citation omitted)); Wolf v. Fed Nat'l Mortg.
Ass'n830 F.Supp.2d 153, 161 (W.D. Va. 2011),
aff'd, 512 F.App'x 336 (4th Cir. 2013).
Because Wilson-McClain lacks standing to challenge the