United States District Court, W.D. Virginia, Charlottesville Division
December 2, 2016
Harold Blick, Plaintiff,
Shapiro & Brown, LLP, Professional Foreclosure Corporation of Virginia, Select Portfolio Servicing, Inc., Defendants.
K. MOON UNITED STATES DISTRICT JUDGE.
brings several causes of action challenging the validity of a
foreclosure on his property. This is his fourth suit
attacking the foreclosure on this particular property and his
seventh suit challenging foreclosure on any one of his
properties. In this suit, Plaintiff alleges violations of
notice requirements in the Deed of Trust, two violations of
the Virginia Code, one violation of the Truth in Lending Act
(“TILA”), and two violations of the Federal Debt
Collection Practices Act (“FDCPA”). Defendants,
in response, assert various affirmative defenses, including
res judicata, statute of limitations, and failure to
state a claim under the FDCPA. Considering the asserted
affirmative defenses and Plaintiff's insufficiently pled
complaint, the majority of claims will be dismissed. However,
one of the FDCPA claims against defendant Shapiro & Brown
LLC (“Shapiro”) will be allowed to proceed
because it is adequately stated and not otherwise barred.
Facts as Alleged
controversy stems from the foreclosure sale of
Plaintiff's property located at 6525 Dick Woods Road,
Charlottesville, Virginia (“the Property”). (Dkt.
1-1 at 1.) Plaintiff and his then wife obtained a loan in
2005 secured by a deed of trust on the Property.
(Id. at 3.) In 2013, servicing on the loan
associated with the Deed of Trust was transferred to Select
Portfolio Servicing, Inc. (“SPS”). (Id.)
Professional Foreclosure Corporation of Virginia (“Pro
Foreclosure”) is the substitute trustee for the
property, which gives it the right to foreclose upon the
property in the event of a default. (Id.) Shapiro
& Brown LLC (“Shapiro”) is a law firm
associated with Pro Foreclosure that was retained with
respect to enforcement of the Deed of Trust on the Property.
series of letters creates the basis of Plaintiff's
claims. On August 2, 2013, Plaintiff received a letter from
SPS in response to his request for validation of the debt
associated with the Deed of Trust. (Id. at 4.)
Because the copy of the original promissory note
(“Note”) attached to the response letter was not
endorsed as a negotiable instrument, Plaintiff claims that
SPS has no right to service the loan. (Id.)
Plaintiff also alleges he never received the notice of
default required under the Deed of Trust because notice was
sent to his former wife but not to him on August 3, 2015.
(Id.) However, eleven days later, Plaintiff sent a
letter to Shapiro in which he explicitly responded to the
August 3rd letter and disputed the validity of the debt.
(Id.) Shapiro never responded to this request for
validation (Id.) On May 11, 2016, Shapiro sent a
letter to Plaintiff notifying him of the foreclosure sale on
the Property by Pro Foreclosure scheduled for June 6, 2016.
(Id.) However, on its last two pages, the letter
mistakenly described a different property and different
substitute trustee. (See dkt. 9-7.) After Plaintiff
wrote complaining of this discrepancy, Shapiro sent another
notice dated May 23, 2016, but which was sent on May 24th and
did not reach Plaintiff until May 27th. (See dkt.
9-13.) Plaintiff contends that the foreclosure sale was
improper because he personally was never notified of his
default and because he was not properly notified of the
foreclosure sale at least fourteen days beforehand.
Additionally, Plaintiff alleges that Defendants' conduct
violated several statutes, discussed below. Plaintiff seeks
several remedies as a result of these alleged violations,
including actual damages, legal costs, declaratory judgment,
and criminal penalties.
present litigation is the fourth in a series of cases that
Plaintiff has brought seeking to invalidate the foreclosure
and sale of the Property. Additionally, Plaintiff brought two
similar cases related to the foreclosure of his adjacent
property. Because Defendants in large part rely upon
the theory of res judicata, a review of the prior
proceedings is prudent.
Blick I, Plaintiff brought four claims against two
defendants: (1) to quiet title on the property, (2) improper
foreclosure on the property because he had not been shown the
original note, (3) violations of the FDCPA, and (4)
derogatory reporting of debt to credit agencies under the
Fair Credit Reporting Act (“FCRA”). Blick
I at *2. The claims were brought against mortgage
servicer JP Morgan Chase, N.A. (“JP Morgan”) and
substitute trustee Deutsche Bank National Trust Company
(“Deutsche”). Id. at *1-2. Ultimately,
this Court rejected Plaintiff's core theory that transfer
of a note and inability to produce the original note
invalidated the foreclosure, and was subsequently affirmed by
the Fourth Circuit. See 475 F. App'x 852 (4th
Blick II, Plaintiff brought similar claims against
the trust itself, rather than the trustee that was sued in
Blick I. See Blick II at *3. This Court
held that all claims were barred by res judicata.
Id. at *12. Applying the relevant Virginia factors,
this Court found that the trust and trustee were in privity
for purposes of res judicata, and that all claims
brought in Blick II could have been brought in the
earlier action. Id. at *9. Again, the Fourth Circuit
affirmed. See 539 F. App'x 126 (4th Cir. 2013).
in Blick III, Plaintiff brought another claim
against Deutsche, alleging that invalid documents submitted
in the Blick I litigation constituted fraud.
Blick III at *1. This court dismissed the claims
upon the defenses of res judicata and statute of
limitations. Id. at *7. Under the statute of
limitations analysis, the dispositive factor was that the
claim accrued when the allegedly fraudulent document was
submitted to the court more than two years prior.
Id. at *5.
case, Plaintiff brings three types of claims against three
Defendants. First, Plaintiff argues that Defendants failed to
notify him of the foreclosure in violation both of the terms
of the Deed of Trust and Virginia law. (Dkt. 1-1 at 7-8.)
Second, Plaintiff alleges violations of the FDCPA stemming
from a failure to validate debts and misrepresentations made
in communications. (Id.) Finally, Plaintiff asserts
a claim under Virginia Code § 18.2-178 for fraudulent
misrepresentation of ownership of the Note. (Id. at
8.) The defendants in this case are SPS (loan servicer), Pro
Foreclosure (substitute trustee), and Shapiro & Brown LLP
(law firm working on behalf of Pro Foreclosure to enforce
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) (internal citations and 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).
Failure to Notice Claims
brings three separate claims alleging a failure to properly
notice him of foreclosure activities. First, Plaintiff
alleges that he was never notified of his default in
violation of the terms of the Deed of Trust. (Dkt. 1-1, Claim
1(a).) The Deed of Trust required that he be notified of
acceleration of his debt thirty days in advance of entering a
default, so that he might have time to cure it. (Dkt. 9-3 at
12.) According to Plaintiff, notice of the default was only
sent to his ex-wife, a former co-owner of the property.
(Id. at 4.) Second, Plaintiff claims that Defendants
violated Virginia Code § 55-59.1 by failing to notify
him of the foreclosure sale at least fourteen days
beforehand. (Id., Claim 2(a).) See Va. Code
§ 55-59.1(A) (“Mailing of a copy of the
advertisement or a notice containing the same information to
the owner by certified or registered mail no less than 14
days prior to such sale . . . .”). While he did receive
a letter on May 11, 2016 that was properly fourteen days
prior to the sale, that letter identified the incorrect
property and substitute trustee on two pages. The corrected
notice was dated fourteen days prior to the foreclosure sale,
but was mailed only thirteen days prior to the sale.
(See dkt. 9-13.) Third, by violating § 55-59.1,
Plaintiff alleges that Defendants also breached the terms of
the Deed of Trust, which required “notice of sale as
required by Applicable Law.” (Dkt. 1-1, Claim 1(b).)
response to all notice claims, Defendants argue that
Plaintiff received adequate notice years prior in the
preceding foreclosure efforts and accompanying
litigation. Citing admissions made in the prior
litigations and in his attached exhibits, Defendants assert
that Plaintiff for several years prior had actual knowledge
of (1) a default on the loan, (2) Pro Foreclosure's
appointment as substitute trustee, and (3) the intent by Pro
Foreclosure to foreclose on the Property. Therefore,
Defendants argue, Plaintiff had actual knowledge of all
relevant issues, and the timing and sufficiency of mailings
in 2016 is irrelevant.
Breach of Contract
argument supports a finding that Plaintiff has failed to
state a claim for breach of contract, although not for the
reason articulated by Defendants. Plaintiff seeks damages
stemming from two counts of breach of contract (i.e.
the Deed of Trust). Under Virginia law, a claim for breach of
contract must allege: “(1) a legally enforceable
obligation of a defendant to a plaintiff; (2) defendant's
breach or violation of that obligation; and (3) injury or
damage to the plaintiff caused by the breach of
obligation.” O'Connor v. Sand Canyon
Corp., No. 6:14-CV- 00024, 2014 WL 4983487, at *5 (W.D.
Va. Oct. 6, 2014) (citing Sunrise Continuing Care, LLC v.
Wright, 671 S.E.2d 132, 135 (Va. 2009)). However,
Plaintiff has failed to allege facts here indicating that
that he incurred damages. See Mayo v. Wells Fargo Bank,
N.A., 30 F.Supp.3d 485, 493 (E.D. Va. 2014),
aff'd, 622 F. App'x 250 (4th Cir. 2015)
(finding in a case challenging the validity of notice under a
deed of trust that “to raise a viable breach of
contract claim under Virginia law, Plaintiff must demonstrate
that she was injured by the breach.”). Plaintiff merely
makes conclusory legal statements that he is entitled to
actual damages, but does not allege any facts making it
plausible that he was injured by Defendants' breach.
as Defendants argue, Plaintiff had knowledge of all the
necessary facts well before the required notice periods.
Accordingly, none of the alleged failures in notice would
have been likely to cause injury to Plaintiff. The complaint
illustrates that Plaintiff was aware of the alleged default
on his loan at all relevant times. For instance, Plaintiff
describes the lengthy procedural history of the attempts to
foreclose on his house dating back several years.
(See dkt. 1-1 at 5.) The litigation in these cases
centered around whether the exact loan at issue here was in
default, so Plaintiff must have had some notice that his
lender considered the loan in default. More recently,
Plaintiff sent a response disputing the default merely eleven
days after the date of the notice of default that he
allegedly did not receive, and months before the foreclosure
sale occurred. (Dkt. 9-5.)
was also aware of the intent to foreclose and the identity of
the foreclosing party. Plaintiff notified Defendants of an
error in their notice of the foreclosure sale before the
fourteen-day required notice period. In that letter,
Plaintiff indicated that he had knowledge of the date of the
proposed sale and the property involved, despite the error.
(Dkt. 9-6.) Additionally, two of Plaintiff's prior
complaints acknowledge Pro Foreclosure as the substitute
trustee, and Pro Foreclosure was listed as the substitute
trustee on the first and second pages of the timely notice.
(See dkts. 7-5 at 5, 49-50; 7-6 at 6, 49-50; 9-7 at
1, 2.) Thus, Plaintiff had actual knowledge of (1) the
default, (2) the identity of the substitute trustee, and (3)
the fact that the substitute trustee was seeking to execute a
foreclosure sale on a certain date, all before the required
noticing deadlines. Considering Plaintiff's awareness of
all relevant facts, the Court cannot merely infer damage from
a purely procedural breach of notice requirements. Therefore,
Plaintiff has failed to state a claim for breach of contract
under Virginia law.
Virginia Code § 55-59.1
has similarly failed to state a claim for relief under
Virginia Code § 55-59.1(A). (See dkt. 1-1,
Claim 2.) Under § 55-59.1(A), “[t]he inadvertent
failure to give notice as required by this subsection shall
not impose liability on either the trustee or the secured
party.” While this Court lacks sufficient information
to determine whether the failure to notice was actually
inadvertent at this point in the litigation, it should be
noted that some sort of intentionality is required for
Plaintiff to ultimately prevail on this claim. See
Thorsted v. Chase Home Mortg. a/k/a Jpmorgan Chase Bank,
N.A., No. 3:16-CV-00025, 2016 WL 2595118, at *2 (W.D.
Va. May 5, 2016) (“Furthermore, to the extent
Thorsted's action is based on accidental or inadvertent
failure to give notice, he cannot proceed under Virginia
law.”); Muncy v. Centex Home Equity Co., No.
1:14CV00016, 2014 WL 3359335, at *5 (W.D. Va. July 9, 2014)
(“The plaintiffs do not allege an intentional failure
to give notice, and in fact, the only defect in notice
alleged-failure to identify the beneficiary-is not required
by this provision.”).
assuming that the failure of notice was intentional,
Plaintiff does not sufficiently allege a theory of liability
based on that violation. Plaintiff cites Virginia Code §
59.1-204 as the basis for liability for the violation of
§ 55-59.1(A). See Va. Code § 59.1-204
(“Any person who suffers loss as the result of a
violation of this chapter shall be entitled to initiate an
action to recover actual damages, or $500, whichever is
greater. If the trier of fact finds that the violation was
willful, it may increase damages to an amount not exceeding
three times the actual damages sustained, or $1, 000,
whichever is greater.”). However, §59.1-204 is
completely unconnected to § 55-59.1, or to foreclosures
in general. The “chapter” referred to in §
59.1-204 is Chapter 17 of the Virginia Code, relating to the
Virginia Consumer Protection Act (VCPA). Section 55-59.1
falls under Chapter 4 of the Virginia Code, relating to deeds
and covenant and other property issues. Therefore, a
violation of § 55-59.1(A) is not “a violation of
this chapter” under § 59.1-204 and does not create
a cause of action for Plaintiff.
§ 59.1-204 does not create a cause of action, then
Plaintiff has failed to state a claim under §
55-59.1(A), even if the failure of notice were not
inadvertent. Section 55-59.1 itself does not create a cause
of action for violations of notice requirements; it merely
states what those requirements are. An alleged violation of
§ 55-59.1 must be accompanied by some theory of
liability. See Yerion v. Branch Banking & Trust
Co., 27 F.Supp.3d 677, 682-83 (E.D. Va. 2014)
(“Plaintiff may cite § 55-59.1(A) along with
sufficient facts to plead a claim upon which relief may be
granted to survive dismissal.”) (emphasis added).
Such theories of liability might include “potentially
viable causes of action under tort law for violating a duty
owed to Plaintiff imposed by the law, such as a claim for
fraud, conversion, trespass or negligence.”
Id. Here, however, Plaintiff has not alleged any
cause of action that would give rise to liability. Nor has
Plaintiff alleged facts that would serve as the basis for
such causes of action. Thus, Plaintiff has failed to allege a
theory of liability for violation of §55-59.1, and the
motion to dismiss on this ground will be granted.
Plaintiff's claim will be dismissed without prejudice.
Virginia Code § 18.2-178
asserts a claim under Virginia Code § 18.2-178, alleging
that Defendants “misrepresented a specially endorsed
note as a negotiable instrument with the intent to defraud
Plaintiff of his property.” (Dkt. 1-1, Claim 2(c).)
See Va. Code § 18.2-178(A) (“If any
person obtain, by any false pretense or token, from any
person, with intent to defraud, money, a gift certificate or
other property that may be the subject of larceny, he shall
be deemed guilty of larceny thereof.”). Plaintiff,
however, alleges no specific facts to support this alleged
fraud other than his previously rejected theory on the
non-transferability of notes. Pleadings for fraud, such as
this one, require a higher standard of pleading than ordinary
claims. See Fed. R. Civ. Pro. 9(b). Here, Plaintiff
has merely made a bald assertion that fraud occurred without
any support other than the assertion of an invalid legal
theory. Thus, Plaintiff has failed to allege sufficient facts
to state a claim for relief under Virginia Code §
18.2-178. Further, Plaintiff appears to base his claim upon
his previously rejected non-transferability of the note
theory. See Blick I, at *17-18. Therefore,
Plaintiff's claim will be dismissed with prejudice.
Fair Debt Collection Practices Act Claims
brings two claims under the FDCPA. First, he alleges that
Defendants failed to provide proof of claim within thirty
days of his request for validation in violation of 15 U.S.C.
§ 1692g. (Dkt. 1-1, Claim 3(a).) See 15
U.S.C. § 1692g(b) (“If the consumer notifies the
debt collector in writing within the thirty-day period . . .
that the debt, or any portion thereof, is disputed . . . the
debt collector shall cease collection of the debt . . . until
the debt collector obtains verification of the debt . . . and
a copy of such verification . . . is mailed to the consumer
by the debt collector.”) According to Plaintiff,
violations occurred on August 14, 2015, and again on May 18,
2016, when Shapiro failed to reply to his letters requesting
validation. (Dkt. 1-1 at ¶8.) Second, he alleges under
15 U.S.C. § 1692e that Defendants provided false or
misleading statements with respect to the debt. (Dkt. 1-1,
Claim 3(b).) See 15 U.S.C. § 1692e (“A
debt collector may not use any false, deceptive, or
misleading representation or means in connection with the
collection of any debt.”). The only misrepresentation
specified in the complaint is one made by SPS in an August 2,
2013 letter wherein they “misrepresented the validity
of [the Note] as a negotiable instrument.”
(Id. at ¶6.) For these alleged violations,
Plaintiff seeks civil and criminal liability under 15 U.S.C.
§ 1692(k) and 15 U.S.C. § 1611, respectively.
argue that several affirmative defenses prevent Plaintiff
from asserting these claims. Most prominently, Defendants
assert that Plaintiff's claims are barred by res
judicata by virtue of his having brought virtually
identical claims in Blick I, II, and III.
Defendants reason that the current complaint is
“predicated upon the same legal theories . . .
referencing the same allegations . . . that were dismissed in
Blick I, II, and III.” (Dkt.
7 at 7.) Defendants also argue that Plaintiff's claims
are barred by the two-year statute of limitations for fraud
because Plaintiff is still essentially alleging fraud from
the conduct that gave rise to Blick I.
Defendants argue that the FDCPA does not apply to several of
the Defendants because they are not “debt
collectors.” Defendants claim that neither SPS nor
Professional Foreclosure are debt collectors because both are
collecting pursuant to a “bona fide fiduciary
obligation” within the meaning of 15 U.S.C. §
1692a(6)(F)(i). Plaintiff, however, argues that SPS is a debt
collector because the loan was in default at the time it took
over servicing of the loan. See 15 U.S.C. §
1692a(6)(F)(ii) (“The term [debt collector] does not
include . . . any person collecting or attempting to collect
any debt owed or due or asserted to be owed or due another to
the extent such activity . . . concerns a debt which was not
in default at the time it was obtains by such person . . .
.”). Plaintiff also argues that Pro Foreclosure is a
debt collector, but does not provide relevant legal authority
to support that position. The parties do not contest that
Defendant Shapiro & Brown LLC is a debt collector under
first to res judicata, this Court must apply
Virginia law on res judicata because the original
case (Blick I) was tried in Virginia under diversity
jurisdiction. See Semtek Int'l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 508 (2001); Q Intern.
Courier Inc. v. Smoak, 441 F.3d 214, 218 (4th Cir.
2006). In Virginia, res judicata is governed by Rule
1:6 of the Rules of the Supreme Court of Virginia, which
A party whose claim for relief arising from identified
conduct, a transaction, or an occurrence, is decided on the
merits by a final judgment, shall be forever barred from
prosecuting any second or subsequent civil action against the
same opposing party or parties on any claim or cause of
action that arises from that same conduct, transaction or
occurrence, whether or not the legal theory or rights
asserted in the second or subsequent action were raised in
the prior lawsuit, and regardless of the legal elements or
the evidence upon which any claims in the prior proceeding
depended, or the particular remedies sought.
the Rule 1:6 same “conduct, transaction, or 
occurrence” test, the Defendant must show that
“(1) there was a prior claim for relief decided on the
merits by a valid and final judgment; (2) the parties are
identical or in privity with each other; and (3) the claim
made in the later suit arises from the same conduct,
transaction, or occurrence as the claim in the first
suit.” Blick III, at *3; see also Lee v.
Spoden, 290 Va. 235, 247-50 (2015) (analyzing a Rule 1:6
question under the three-step framework.) Here, Blick
I was clearly decided on the merits, as this Court
dismissed all claims with prejudice and was upheld by the
Fourth Circuit. See Blick I at *20-21.
second prong, privity, is a closer question. “The
touchstone of privity for purposes of res judicata
is that a party's interest is so identical with another
that representation by one party is representation of the
other's legal right.” State Water Control Bd.
v. Smithfield Foods, Inc., 261 Va. 209, 214 (Va. 2001)
(citations omitted). “Virginia courts typically find
privity when the parties share a contractual relationship,
owe some kind of legal duty to each other, or have another
legal relationship such as co-ownership.” Columbia
Gas Transmission, LLC v. David N. Martin Revocable
Trust, 833 F.Supp.2d 552, 558 (E.D. Va. 2011). Further,
“it is generally held that ‘privity' means a
mutual or successive relationship to the same rights of
property.” Nero v. Ferris, 222 Va. 807, 813
question for this prong is whether each of the three
defendants is in privity with the prior loan servicer (JP
Morgan) and substitute trustee (Deutsche) that were
defendants in the Blick I suit. Mortgage servicers
such as SPS have been considered in privity with lenders in
similar suits challenging foreclosures. See Anyanwutaku
v. Fleet Mortg. Grp., Inc., 85 F.Supp.2d 566, 571 (D.
Md. 2000), aff'd, 229 F.3d 1141 (4th Cir. 2000);
Jones v. First Franklin Loan Servs., No.
3:10-CV-360-FDW-DSC, 2011 WL 972518, at *5 (W.D. N.C. Mar.
15, 2011). The rights of JP Morgan challenged in Blick
I is a right currently held by its successor, SPS.
Namely, JP Morgan successfully defended SPS's right to
collect on the Note by defeating Plaintiff's various
claims in Blick I. If JP Morgan had not successfully
litigated that issue, SPS today would not have the right to
service the loan today. Thus, JP Morgan defended SPS's
legal right in the Blick I litigation and the two
may be considered in privity.
Pro Foreclosure, Courts have also held that substitute
trustees may be considered in privity with prior trustees.
See Hasan v. Friedman & MacFadyen, P.A., No.
CIV.A. DKC 11- 3539, 2012 WL 3012000, at *7 (D. Md. July 20,
2012). The right of a substitute trustee such as Pro
Foreclosure to initiate foreclosure on the Property is the
same right that was litigated by Deutsche in Blick
I. Therefore, Deutsche's litigation of the right in
Blick I was a “representation of the
other's legal right” such that Pro Foreclosure and
Deutsche are in privity. Smithfield Foods, Inc., 261
Va. at 214.
is no indication, however, that Shapiro can be considered in
privity with either of the Blick I defendants. The
allegation against Shapiro - that it failed to respond to
Plaintiff's validation request - involves conduct
unconnected to a right that JP Morgan or Deutsche would have
been able to assert. Thus, while SPS and Pro Foreclosure may
be considered in privity with JP Morgan and Deutsche,
respectively, Shapiro cannot.
third requirement of res judicata - that
Plaintiff's claim arises from the same conduct,
transaction or occurrence - is not satisfied in this case.
The conduct at issue in Blick I was the transfer of
the Note and subsequent attempts to foreclose after default
on the loan. At issue here is an entirely separate and
distinct transfer of the note and new attempt to foreclose on
the Property. Because they stem from independent conduct, it
would be consistent if JP Morgan's and Deutsche's
actions were not in violation of the FDCPA while SPS's
and Pro Foreclosure's were. Even though the parties may
be in privity with respect to rights litigated in Blick
I, such privity does not shield the current parties from
liability stemming from conduct that occurred well after the
first litigation was decided. The parties could not have
litigated the FDCPA allegations at issue here in Blick
I because the conduct that forms the basis of the claims
had not yet occurred. Thus, res judicata does not
apply to bar Plaintiff's FDCPA claims.
failure to validate debt claims under § 1692g also do
not arise from the same transaction or occurrence at issue in
Blick I. While Plaintiff is asserting a statutory
claim also brought in Blick I, he is basing it off
of entirely separate conduct in this case. It is logically
consistent for there to have been no violation of §
1692g in Blick I, and simultaneously a violation of
the statute in this case. Res judicata, therefore,
does bar any claims in the present controversy.
Statute of Limitations
assert the two-year statute of limitations for fraud under
Virginia Code § 8.01-243(A) as a defense to all of
Plaintiff's claims, claiming that Plaintiff is
essentially reasserting the fraud from Blick I that
took place in 2011. However, Defendants inaccurately gloss
over the substance of Plaintiff's complaint by
characterizing it in this manner. Plaintiff is not merely
reasserting the claims of Blick I from 2011. The
events that Plaintiff alleges give rise to liability include:
(1) letters exchanged in 2015 and 2016; (2) attempting to
foreclose on his property and sell it at auction in June of
2016; and (3) other, unspecified fraudulent conduct.
Plaintiff is alleging the same legal theories as Blick
I, but bases them now on conduct which took place much
more recently. Therefore, even if a two-year statute of
limitations were applicable, the conduct giving rise to
liability occurred well within its window. Thus,
Plaintiff's claims cannot be dismissed on the basis of a
two-year statute of limitations defense.
the one-year statute of limitations for FDCPA claims may
apply to bar Plaintiff's misrepresentation claim under
§ 1692e. See 15 U.S.C. § 1692k(d)
(providing a one-year statute of limitations starting from
the date of the violation of the statute). From
Plaintiff's statement of facts, the only apparent
allegation of misrepresentation comes from an August, 2013
letter. (See dkt. 1-1, at 5 (“[N]o further endorsement
to the Blick/Conroy Note was entered . . . thus
misrepresenting the validity of said instrument as a
negotiable instrument.”)) Although a FDCPA claim does
not accrue until “the plaintiff knows or has reason to
know of the injury which is the basis of the action, ”
Plaintiff surely was aware of the potential injury as soon as
he received the letter because he had previously litigated
(in Blick I) FDCPA violations from functionally
identical communications by a similar defendant. Lembach
v. Bierman, 528 F. App'x 297, 302 (4th Cir. 2013).
If the sole misrepresentation alleged under the FDCPA is a
representation in a letter sent over three years ago, the
misrepresentation claim must be barred by the applicable
one-year statute of limitations.
Failure to state a claim
15 U.S.C. § 1692e
Plaintiff's claim under 15 U.S.C. § 1692e is not
otherwise barred, he has failed to state a claim against any
defendant under the statute. Under Federal Rule of Civil
Procedure 9(b), “a party must state with particularity
the circumstances constituting fraud.” See Dealers
Supply Co. v. Cheil Indus., Inc., 348 F.Supp.2d 579, 590
(M.D. N.C. 2004) (“Courts have been quick to reject
pleadings in which multiple defendants are lumped together
and in which no defendant can determine from the complaint
which of the alleged representations it is specifically
charged with having made . . . .”); Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 n.5
(4th Cir. 1999) (“[L]ack of compliance with Rule
9(b)'s pleading requirements is treated as a failure to
state a claim under Rule 12(b)(6).”). Here, Plaintiff
has only alleged that “Defendants provided false and
misleading representations as to the debt outstanding and
misrepresented Plaintiff's specially endorsed note as a
bearer instrument.” Defendants have failed to specify
which defendants made false representations, what those
representations were, when the representations were made, how
the representations were made, and why the representations
the vague basis for Plaintiff's misrepresentation claims
appears to be the same non-transferability of the Note legal
theory rejected in Blick I. Further, to the extent that
Plaintiff does allege a specific misrepresentation (the 2013
SPS letter), it is clearly barred by the applicable one year
FDCPA statute of limitations. Plaintiff, therefore, has
presented no legal basis on which to base his claim for a
violation of § 1692e. Thus, Plaintiff's claims under
15 U.S.C. § 1692e will be dismissed with prejudice.
15 U.S.C. § 1692g
under § 1692g against SPS or Pro Foreclosure are not
adequately pled. Plaintiff does not allege that either of
those parties failed to adequately respond to a request for
validation of his debt, and thus it is unclear on what ground
he would base a §1692g claim. The only mention of
activity that could give rise to a violation of the statute
is the failure to respond to a request for validation found
in letters sent only to Shapiro. Thus, to the extent
Plaintiff alleges claims under § 1692g against SPS and
Pro Foreclosure, they will be dismissed without prejudice.
other hand, Plaintiff has sufficiently pled a claim for
violation of 15 U.S.C. § 1692g(b) by Shapiro. Plaintiff
described and attached as an exhibit a letter to Shapiro
requesting validation of the debt. (Dkt. 9-5). Plaintiff
further alleges that Shapiro failed to respond to this
letter. (Dkt. 1-1 at 4, 8). Additionally, the facts
demonstrate that Shapiro took debt collection actions
subsequent to Plaintiff disputing the debt by going through
the foreclosure process. See Townsend v. Fed. Nat. Mortg.
Ass'n, 923 F.Supp.2d 828, 840 (W.D. Va. 2013)
(“I find that the plain meaning of that phrase must
mean that a creditor cannot take action, in this case
foreclosure, that would result in the collection of the debt,
until it has satisfied the prerequisites imposed by the
statute.”); McCray v. Fed. Home Loan Mortg.
Corp., No. 15- 1444, 2016 WL 5864509, at *4 (4th Cir.
Oct. 7, 2016) (Defendants' foreclosure actions
“were taken in connection with the collection of a debt
or in an attempt to collect a debt”); Wilson v.
Draper & Goldberg, P.L.L.C., 443 F.3d 373, 378 (4th
Cir. 2006) (“We hold that Defendants' foreclosure
action was an attempt to collect a ‘debt' . . .
.”). Plaintiff has pled facts indicating that he
disputed his debt, but did not receive any response before
debt collection activities continued, and thus has stated a
claim for relief under 15 U.S.C. § 1692g(b).
parties also contest whether SPS or Pro Foreclosure are debt
collectors within the meaning of the FDCPA. The Court,
however, need not resolve this question at this time. As
described above, Plaintiff has failed to sufficiently plead a
claim against any party under § 1692e because his
complaint lacks detail with respect to this claim. Further,
it is not clear that Plaintiff attempts to bring a claim
under § 1692g against any party except Shapiro. Even if
Plaintiff purports to bring a § 1692g claim against SPS
and Pro Foreclosure, he has failed to adequately state a
claim against either defendant, as he fails to specify when
or how they violated the statute. Thus, Plaintiff fails to
state a claim against either SPS or Pro Foreclosure under the
FDCPA regardless of whether they are “debt
15 U.S.C. § 1611
also seeks criminal liability for Defendants' alleged
FDCPA violations under 15 U.S.C. § 1611. (Dkt. 1-1,
Claim 3(d).) However, “15 U.S.C. § 1611 is a
criminal statute that does not provide for civil
remedies.” Timm v. Wells Fargo Bank, N.A., No.
CV158363MASTJB, 2016 WL 5852848, at *3 (D.N.J. Sept. 29,
2016); see also Id. (“Because this statute
does not provide a private civil right of action,
Plaintiff's demand for criminal liability in Count Five
is also dismissed.”); Beepot v. J.P. Morgan Chase
Nat. Corp. Servs., Inc., 57 F.Supp.3d 1358, 1380 (M.D.
Fla. 2014), aff'd sub nom. Beepot v. JP Morgan Chase
Nat. Corp. Servs., Inc., 626 F. App'x 935 (11th Cir.
2015); Dunn-Mason v. JP Morgan Chase Bank, N.A., No.
11-CV-13419, 2013 WL 5913684, at *13 (E.D. Mich. Nov. 1,
2013), aff'd 6th Cir. 14-1700 (Mar. 16, 2015);
see generally Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973) (“[A] private citizen lacks a
judicially cognizable interest in the prosecution or
nonprosecution of another.”). Therefore, Plaintiff
cannot state a claim under this statute and his claims will
be dismissed with prejudice.
has put forth myriad legal theories challenging the validity
of Defendants' actions with respect to the foreclosure of
his property. All but one of these claims must be dismissed.
Plaintiff's breach of contract claims must be dismissed
because he failed to allege any damages stemming from the
lack of notice. Plaintiff has also failed to state a claim
under Virginia Code § 55-59.1 because he has not stated
a theory on which Defendants might be held liable for their
alleged violations. Plaintiff's claim under Virginia Code
§ 18.2-178 must also be dismissed because he alleges no
facts to support his fraud allegation and basis his claim on
an invalid legal theory. Similarly, Plaintiff's FDCPA
claim under § 1692e should be dismissed because
Plaintiff has failed to provide any details about the alleged
false or misleading statements that occurred, and certain
claims are barred by a statute of limitations defense.
Plaintiff's FDCPA claim under § 1692g should be
dismissed with respect to Defendants SPS and Pro Foreclosure
because there are no allegations that they failed to respond
to a request for validation of his debt. Finally, there is no
civil cause of action for Plaintiff to bring under 15 U.S.C.
the only surviving claim is Plaintiff's claim for
violation of § 1692g by Defendant Shapiro & Brown,
LLC. Plaintiff has adequately stated a claim that Shapiro
failed to validate his debt, and none of Defendant's
attempted affirmative defenses apply to bar this claim.
appropriate order will issue.
Clerk of the Court is directed to send a certified copy of
this Memorandum Opinion to all counsel of record and to the
pro se Plaintiff.
 Blick v. JP Morgan Chase Bank,
N.A., No. 3:12-cv-00001, 2012 U.S. Dist. LEXIS 41265
(W.D. Va. Mar. 27, 2012), aff'd, 475 F.
App'x 852 (4th Cir. 2012) [hereinafter “Blick
I”]; Blick v. Long Beach Mortgage Loan Trust
2005-WL3, No. 3:13-cv-00002, 2013 U.S. Dist. LEXIS 46442
(W.D. Va. Mar. 29, 2013), aff'd, 539 F.
App'x 126 (4th Cir. 2013) [hereinafter “Blick
II”]; Blick v. Deutsche Bank Nat. Trust Co.,
No. 3:14-CV-00022, 2014 WL 4052820 (W.D. Va. Aug. 15, 2014),
aff'd, 591 F. App'x 231 (4th Cir. 2015), cert.
denied, 136 S.Ct. 114 (2015), reh'g denied,
136 S.Ct. 575 (2015) [hereinafter “Blick
 Blick v. Wells Fargo Bank,
N.A., No. 3:11-cv-00081, 2012 U.S. Dist. LEXIS 41265
(W.D. Va. Mar. 27, 2012) aff'd, 474 F. App'x
932 (4th Cir. 2012), and then in a second action on res
judicata grounds. Blick v. Soundview Home Loan Trust
2006-WF1, No. 3:12-cv-00062, 2013 U.S. Dist. LEXIS 4186
(W.D. Va. Jan. 10, 2013), aff'd, 521 F.
App'x 207 (4th Cir. 2013).
 Defendants do not concede that they
provided improper notice in May of 2016. For the purposes of
this motion to dismiss, however, it seems that Defendants do
not contest Plaintiff's factual assertions related to
notice given in 2016. Instead, they argue on the basis of
facts previously admitted by Plaintiff that he had notice
prior to any of the events at issue in this case.
 This Court must follow Erie
and apply substantive state law to claims brought under
supplemental jurisdiction. See ITCO Corp. v. Michelin
Tire Corp., Commercial Div., 722 F.2d 42, 49 n.11 (4th
Cir. 1983), on reh'g, 742 F.2d 170 (4th Cir.
1984). As a federal court sitting in Virginia, the Court must
employ Virginia's choice of law rules to determine the
applicable state law. Klaxon Co. v. Stentor Electric
Manufacturing Co., 313 U.S. 487, 496 (1941). Virginia
applies the First Restatement approach for choice of law for
contract claims, applying the law of the place where the
contract was accepted. Dreher v. Budget Rent-A-Car Sys.,
Inc., 272 Va. 390, 395, 634 S.E.2d 324, 327 (2006) Here,
all the facts indicate that the contract was negotiated and
formed in Virginia. Thus, Virginia law should apply to govern
any breach of contract claims.
 The complaint actually cites
“§55-59.1-204” as the basis for liability.
This code section does not exist. However, the text cited by
Plaintiff matches that of §59.1-204, so this Court will
assume that was the intended code section.
 There is no requirement that a debt
collector must respond to a request for validation of a debt
within thirty days. However, construing Plaintiff's
pro se complaint liberally, he has still stated a
basis for violation of the provision by alleging that
Defendants never responded. See dkt. 1-1, at 4.
See infra Part III.c.iii.b.
 Defendant's memorandum in support
(dkt. 9) states in the header for the statute of limitations
section that “all” claims are barred. However,
the text of the section only mentions “counts of fraud
and misrepresentation in the guise of debt collection
violations.” Regardless, the Court concludes that the
fraud statute of limitations defense would not be applicable
to any claim in this case in Part III.c.ii,
 Compare dkt. 1-1, at 9
(“Defendants . . . misrepresented Plaintiff's
specially endorsed note as a bearer instrument.”),
with Blick I, at *17-18 (“Moreover, as other
courts have made clear, the holder of a blank-indorsed
note like the one at issue can enforce the note pursuant
to the deed of trust, and is therefore entitled to foreclose
on the property.”) (emphasis added).