United States District Court, E.D. Virginia, Richmond Division
PATRICIA A. PRESCOTT, Plaintiff,
PHH MORTGAGE CORPORATION, et al., Defendants.
E. Payne Senior United States District Judge
matter is before the Court on the PLAINTIFF'S MOTION FOR
SUMMARY JUDGEMENT [sic] (ECF No. 44) and several motions to
dismiss filed by the Defendants: PHH MORTGAGE
CORPORATION'S MOTION TO DISMISS (ECF No. 9) ("PHH
Mot."), DEFENDANT, SPROUSES CORNER, LLC'S MOTION TO
DISMISS PLAINTIFF'S COMPLAINT (ECF No. 16)
("Sprouses Mot."), and the MOTION TO DISMISS
("PCF Mot.") (ECF No. 25) filed jointly by
Defendants Shapiro, Brown, & Alt and the Professional
Foreclosure Corporation of Virginia. For the reasons set
forth below, the Defendants' motions will be granted, the
Plaintiff's motion will be denied as moot, and this
action will be dismissed.
Prescott filed the Complaint -in this action on June 6, 2016.
(ECF No. 4) . The Complaint names a number of Defendants, but
only four have been properly served in this case: PHH
Mortgage Corporation ("PHH"), the Professional
Foreclosure Corporation of Virginia ("PFC"),
Shapiro, Brown & Alt ("Shapiro"), and Sprouses
Corner, LLC ("Sprouses")- These four Defendants
(hereinafter "Defendants") have all filed motions
to dismiss. For purposes of determining the motions, the
facts alleged in the Complaint must be assumed true, and the
Complaint must be read liberally in light of Prescott's
status as a pro se plaintiff. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) ("[A] pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
purchased the property in question in December of 2003,
secured by a Deed of Trust and Note in the amount of $130,
000. (Compl. ¶ 4). At some point PHH became the servicer
on the loan, and Prescott made timely payments to them until
2009. (Compl. ¶ 12) . In 2008, Prescott applied for but
was denied a loan modification. (Compl. ¶ 14) . In
November of 2009, Prescott and PHH entered into a
"vaguely specified" six-month trial-period loan
modification program. (Compl. ¶¶ 13-15).
the trial program concluded, Prescott received the terms of a
new loan modification offer in April of 2010, but rejected
them because "the terms were not as previously agreed to
and did not place the Plaintiff's [sic] in a better
position than the original note." (Compl. ¶¶
15-16). Prescott alleges that she began making back payments,
made inquiries as to the amount owed, and submitted
double-payments in an attempt to get current, but that PHH
did not "properly account for any money submitted after
April, 2009." (Comp. ¶ 16).
specifically alleges that PHH did not account for a series of
payments made in May and June of 2010 (four payments of $850,
$425.91, $850, and $425). (Compl. ¶ 20). Prescott
contends that PHH's failure to credit these payments
"put in motion their claim of delinquency." Icl.
She further claims that she continued to submit monthly
payments despite the improper accounting, but that, beginning
in December of 2010, PHH began returning her checks because
they provided an "[i]nsufficient amount to clear
default." (ECF No. 29, Attach. 20); see also
Compl. at ¶¶ 21-22. Between December 2010 and
February 2011, three checks were returned to Prescott for
that reason. (Compl. ¶¶ 22-24). In the attachments
to the "Addendum" (ECF No. 29) Prescott filed in
response to the motions to dismiss, letters from PHH to
Prescott indicate that a fourth check dated March 1, 2011 was
also returned (as it was approximately half of what PHH
alleged at the time was due). (ECF No. 29, Attach. 24). In
April of 2011, Shapiro informed Prescott on behalf of PHH
that PHH intended to foreclose. (Compl. ¶ 25) Although
Prescott disputes that PHH was the noteholder at this time,
the documents that she attached to her addendum confirm that
PHH was the holder. (ECF No. 29, Attach. 27). Despite the
foreclosure letter, foreclosure did not occur on
Prescott's property until after a second letter received
in 2013. (Compl. ¶¶ 35-36).
April of 2011 and June of 2013, Prescott claims that PHH
(which was still being represented by Shapiro) fraudulently
filed notices of assignment and a document of rescission that
replaced a previously filed certificate of satisfaction.
(Compl. ¶ 27-33). Notwithstanding this claim, the
attachments provided in Prescott's Addendum (ECF No. 29)
indicate that the Document of Rescission was filed in April
of 2011 in order to correct a certificate of satisfaction
that had been executed in error (by Bank of America, which
never held the property and swore as much in the Document of
Rescission) . (ECF No. 29, Attach. 30-31).
received a second foreclosure letter dated July 17, 2013 (but
allegedly sent July 29, 2013), and an advertisement of the
foreclosure was placed in the Times-Dispatch. (Compl.
¶¶ 35-36). Prescott filed a final "loan
modification attempt" with PHH on "October 21,
2014, " but the foreclosure sale proceeded and she
received an eviction letter. (Compl. ¶¶ 37, 43) .
Sprouses was the high bidder at auction and acquired the
property. (Compl. ¶ 41) . PFC was the substitute
trustee. (Compl. ¶ 44).
alleges that the sale to Sprouses violated the terms of the
Deed of Trust and the terms of the advertisement of sale,
which respectively required sale within 30 days of the last
advertisement for the property and within 15 days of November
14, 2013. (Compl. ¶¶ 37-40). The basis of this
allegation appears to be that the Substitute Trustee's
Deed was not recorded within those timeframes.
Id.. Prescott states that she contacted the
substitute trustee, PCF, was told that settlement was due to
occur on November 29, 2013, and that she then "ceased
attempts for a loan modification . . . and secured legal
representation." (Compl. ¶ 45).
December 13, 2013, Prescott appeared in the Circuit Court for
Chesterfield County in an action that resulted in Sprouses
obtaining an immediate writ of possession, albeit one
(according to Prescott) "based on fraudulent
documents." (Compl. ¶ 4 6). Prescott specifies that
the writ was "authorized pursuant to a trustee's
deed following foreclosure, " but that Sprouses had not
recorded the deed, and otherwise "did not have a signed
and/or notarized valid copy of a trustee's deed on
November 21, 2013, when he swore to the summons."
(Compl. ¶ 47). She also asserts that Sprouses has
continued to assert legal ownership of the property into
2015, despite reselling the property, and thus has
"defrauded not only the Plaintiff, but every person
willing and able to purchase the property." (Compl.
property was re-sold in February of 2014, and that
transaction was recorded on April 1, 2014. (Compl. ¶
55). Prescott received a check for Plaintiff's equity in
the property, but asserts that it "falsely
represent[ed]" the true amount that she deserved.
(Compl. ¶ 58). Prescott maintains that she had the funds
to satisfy her debt completely at the time of foreclosure,
but was not given the opportunity to do so (Compl. ¶
56); however, this claim (and many other allegations in the
Complaint) are refuted by the documents provided in
Prescott's Addendum (ECF No. 29), which Prescott has
asked the Court to consider for purposes of these motions.
(Id., at 1, Attach. 25-32). Prescott claims
"this complaint is timely" because "the debt
has not been properly adjudicated" and "because
fraud is present and ongoing." (Compl. ¶ 58).