United States District Court, W.D. Virginia, Charlottesville Division
TODD A. BAIRD, et al, Plaintiffs,
THE FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendant.
Glen E. Conrad Chief United States District Judge
Todd A. Baird and Dana G. Baird bring this action against
defendant The Federal Home Loan Mortgage Corporation
("Freddie Mac"), arising out of the foreclosure of
their home and subsequent eviction. This case is presently
before the court on Freddie Mac's motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. For the following reasons, Freddie Mac's
motion will be granted.
following facts, taken from the plaintiffs' amended
complaint, are accepted as true for purposes of the
defendant's motions to dismiss. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
9, 2004, plaintiffs entered into a mortgage loan agreement
for their home located at 3934 Campbell Road in Troy,
Virginia (the "Property"). Am. Compl. ¶ 5-6.
Through various transactions, The Federal Home Loan Mortgage
Corporation ("Freddie Mac") became the holder of
the mortgage note. GMAC Mortgage, LLC ("GMAC
Mortgage") serviced the note on behalf of Freddie Mac.
GMAC Mortgage appointed Professional Foreclosure Corporation
of Virginia ("PFC") as trustee.
eventually defaulted on their mortgage, and GMAC Mortgage
sent plaintiffs notice of default in a letter dated June 1,
2009. GMAC Mortgage then instructed PFC to foreclose on the
Property. Am. Compl. ¶ 23. On October 7, 2009, PFC
conducted a foreclosure sale, whereby Freddie Mac became the
record owner of the Property through a recorded trustee's
deed. Id. ¶ 27-29. According to the complaint,
notice of foreclosure was defective. Consequently, plaintiffs
allege that they did not become aware of the foreclosure sale
until November of 2009. Id. ¶ 24.
assert that Freddie Mac knew or should have known of the
potential challenge to the validity of the foreclosure sale
because of the defective notice and another issue related to
the appointment of PFC as trustee. Plaintiffs contend that
these defects motivated Freddie Mac, through its agent
Titanium Solutions, Inc. ("Titanium"), to encourage
plaintiffs to apply for loan modification. Id.
¶ 33. In response to this encouragement, plaintiffs
submitted what amounted to a written application for loan
modification (the "Hardship Letter"). Id.
allege that Titanium, acting as Freddie Mac's agent,
approved the application via an email sent by Titanium's
agent, Trey Durham ("Durham"). Id. ¶
36. The email states: "Homeowner was qualified for
reinstatement and all paperwork was sent to Freddie Mac on
11-03-2009." Durham also wrote, "Freddie Mac told
evicting attorney to hold off on eviction on 1-21-10."
Id. Despite their general contention that other
evidence tending to demonstrate a valid loan modification
agreement exists, plaintiffs have failed to provide any
documents other than Durham's email evincing written
acceptance of plaintiffs' purported loan modification
13, 2015, plaintiffs filed a four-count complaint in the
Circuit Court of Louisa County, alleging that neither Freddie
Mac nor GMAC Mortgage was entitled to foreclose on the
Property. Plaintiffs also asserted various claims related to
the foreclosure of the Property and their subsequent
eviction, including a claim for breach of the loan
modification agreement. On August 11, 2015, Freddie Mac filed
a notice of removal pursuant to 42 U.S.C. §§ 1441,
March 29, 2016, after Freddie Mac filed its first motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the court dismissed all counts except for
plaintiffs claim of a breach of the loan modification
agreement. The court found that plaintiffs had not
established the first element of this claim, that a valid and
enforceable contract to modify the loan existed, but
nevertheless allowed plaintiffs time to engage in limited
discovery for the purpose of finding a written copy of such
agreement. On May 31, 2016, plaintiffs filed an amended
complaint, attaching Durham's email as evidence of a
written loan modification agreement. On June 14, 2016,
Freddie Mac filed a motion to dismiss the amended complaint
pursuant to Rule 12(b)(6). The motions have been fully
briefed and are ripe for review.
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint." Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). When deciding a motion to
dismiss under this rule, the court must accept as true all
well-pleaded allegations and draw all reasonable factual
inferences in the plaintiffs' favor. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); see also Vitol. S.A.
v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir.
2013). "While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
a plaintiffs 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) (internal citation and
quotation marks omitted). To survive dismissal for failure to
state a claim, "a ...