United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge
se plaintiff, Horace Harris, brings this wrongful foreclosure
case against the defendant, Wells Fargo Bank, National
Association ("Wells Fargo"). Harris contests the
foreclosure of his home and alleges seven counts including
breach of contract, breach of the covenant of good faith and
fair dealing, conversion, wrongful acceleration, and
intentional infliction of emotional distress. Harris seeks a
declaratory judgment invalidating the foreclosure as well as
damages of at least 1.4 million dollars. Wells Fargo moved to
dismiss Harris's claims pursuant to Fed.R.Civ.P.
12(b)(6). The Court grants the motion to dismiss. Res
judicata, or claim preclusion, bars Harris's claims
because they arise from the same conduct, transaction, or
occurrence as a previous case Harris filed challenging the
foreclosure of his home.
2005, Harris took out a mortgage with Washington Mutual Bank
FA ("WaMu") by executing a Deed of Trust on 6655
St. Pauls Road ("the Property"). The Deed of Trust
secured a Note for $388, 297. Harris, his wife, and Keith
Coleman signed the Deed of Trust; however, only Coleman
signed the Note. In 2006, WaMu formed the WAMU Mortgage
Pass-Through Certificates Series 2006-PR-l Trust ("the
WaMu Trust"). Harris says that WaMu cannot prove that it
ever sold the Note to the WaMu Trust. In 2008, the Federal Deposit
Insurance Corporation ("FDIC") took over WaMu. On
August 5, 2013, JPMorgan Chase Bank, National Association
("Chase"), as attorney in fact for the FDIC,
executed a Notice of Corporate Assignment of Deed of Trust
("the Assignment"), assigning the Deed of Trust on
the Property to Wells Fargo as trustee for the WaMu Trust.
The Assignment shows Chase as the servicer of the Note.
Harris then defaulted on the mortgage, and Wells Fargo
appointed a substitute trustee to foreclose on the property.
Wells Fargo bought the property at the foreclosure sale in
January 2014, with a credit bid of $388, 297. Harris claims
that he never received notice of default or an acceleration
warning before the foreclosure, as required by his mortgage.
the same set of facts, Harris and Mr. Coleman, who is not a
party here, sued Chase in this Court in 2014 (the "2014
Litigation"). Harris and Coleman alleged that Chase
lacked authority to foreclose on the Property and alleged
breach of contract, fraud, and trespass. Harris and Coleman
claimed that (1) they had never entered into a contract with
Chase and had not accepted any loan from Chase; and (2)
Chase's failure to provide a "wet signature"
copy of any assignment of the Note negated Chase's claim
to the Note. Notably, the complaint in the 2014 Litigation
specifically alleged that "plaintiffs admit receiving a
default notice. Plaintiffs are without knowledge as to
whether the default notice is lawful." Judge Spencer
dismissed Harris's claims on a 12(b)(6) motion. On May
11, 2016, Harris filed his amended complaint in this case,
again challenging the validity of the Assignment.
plaintiffs complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a)(2). Where, as here, a
defendant brings a motion to dismiss for failure to state a
claim, the Court must analyze the plaintiffs complaint to
determine whether it states sufficient facts to state a claim
to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). "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. (quoting Bell Atl Corp. v. Twombly, 550
U.S. 544, 565 (2007)). When considering the complaint itself,
courts must accept all allegations as true and must draw all
reasonable inferences in favor of the plaintiff. Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). The
principle that a court must accept all allegations as true,
however, does not apply to legal conclusions. IqbaU
556 U.S. at 678.
certain circumstances, a court may look beyond the complaint
itself and (1) take judicial notice of public records, such
as state court records, and (2) consider documents submitted
by the movant if the documents are integral to the complaint
and indisputably authentic. Goines v. Valley Cmty. Servs.
Bd, 822 F.3d 159, 165 (4th Cir. 2016).
cases where the plaintiff appears pro se, or without an
attorney, courts do not expect the plaintiff to frame legal
issues with the clarity and precision expected from lawyers.
Accordingly, courts construe pro se complaints liberally.
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) Courts do not, however, need to discern the
unexpressed intent of the plaintiff or conjure up issues on
the plaintiffs behalf. See Laber v. Harvey, 438 F.3d
404, 413 n.3 (4th Cir. 2006); Beaudett, 775 F.2d at
brings seven counts in his complaint: Count I: breach of
contract; Count II: breach of the covenant of good faith and
fair dealing; Count III: conversion; Count IV: conversion of
an instrument; Count V: wrongful acceleration; Count VI:
negligent or intentional infliction of emotional distress
("NIED" or "IIED"); and Count VII:
declaratory judgment the sale was void ab initio. As
stated below, res judicata bars these claims and,
even if res judicata did not bar them, Harris's
complaint fails to state a claim for all counts except counts
one and five for breach of contract.
Res Judicata Bars the Plaintiffs Suit
judicata, or claim preclusion, bars the plaintiffs
asserted claims. The Court applies Virginia's res
judicata laws. See Q Int'l Courier Inc. v.
Smoak, 441 F.3d 214, 218 (4th Cir. 2006) ("[T]he
preclusive effect, if any, of the first action on the second
action should have been decided under the res judicata law of
the state of Virginia-the law of the state where the federal
district court sat in the first action.") (citation
omitted). Under Virginia law amended in 2006:
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 ...