United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge.
civil action arises out of plaintiff Hamid Mahjor's
("plaintiff" or "Mahjor") 2007 purchase
of a home financed by a mortgage. According to plaintiff, his
mortgage broker procured the loan by adding a fictitious name
to the loan documents submitted to the lender, which
plaintiff argues rendered the note and deed of trust void.
Nevertheless, plaintiff occupied the house for nearly ten
years without making any payments. In March 2017, defendant
Greenpoint Mortgage, Inc., ("Greenpoint"),
identified as the "lender" in the complaint,
initiated foreclosure proceedings, with defendant Brock &
Scott, PLLC ("Brock & Scott"), acting as the
debt collector; defendant Trustee Services of Virginia, LLC
("TSV"), acting as the substitute trustee for the
deed of trust; and defendant Mortgage Electronic Registration
Systems ("MERS"), acting as nominee for the lender.
Defendant FFC Properties, LLC ("FFC"), purchased
the property at the March 2017 foreclosure sale.
theory that the underlying debt is void, plaintiff has
brought this four count civil action seeking to invalidate
the foreclosure sale,  alleging in Count 1 an Equitable Action to
Rescind Void / Unlawful Foreclosure Sale [sic] against all
defendants; in Count 3 slander of title against all
defendants; in Count 4 violations of the Fair Debt Collection
Practices Act ("FDCPA") against Brock & Scott
and TSV; and in Count 5 a quiet title action against all
defendants. Defendants have filed two motions to
dismiss in which they argue that plaintiffs
complaint is untimely, that previous decisions in bankruptcy
proceedings preclude him from relitigating the validity of
the debt, and that he has failed to state a claim as to any
of the counts. For the reasons that follow, the motions to
dismiss will be granted.
early 2007, Mahjor applied for a loan with Greenpoint to
finance his purchase of 21 Pickett Lane ("the
Property"). 1st Am. Compl. ("Compl.") ¶
9. His broker, Michael Milan ("Milan"), approved
him for the loan. Id. ¶¶ 12-13, 21. The
total purchase price was $696, 000.00, with a $184, 000.00
down payment. Id. ¶ 14.
29, 2007, Mahjor signed a deed of trust for the property
securing the mortgage. The deed of trust lists Edwin J.
Vasquez ("Vasquez") as a borrower along with
Mahjor, and Vasquez's signature appears just above
Mahjor's on the last page. According to the complaint,
"Vasquez is a fictitious individual whose information
was fictitious and fraudulently relied on to process the loan
/ Note on June 29, 2007, " allegedly without
Mahjor's knowledge. Compl. ¶ 34. Although the deed
of trust states that both Vasquez and Mahjor executed a
promissory note in connection with the mortgage, [Dkt. 1-1]
at 24, in fact only the Vasquez signature is on the
promissory note, Id. at 21, which is for $548,
750.00,  Id. at 17. The same day, Mahjor
signed an Adjustable Rate Rider, on which Vasquez's
signature also appears. Id. at 43.
took possession of the Property in June 2007, and alleges he
began making monthly payments to Greenpoint. Compl. ¶
16-17. After five months,  a statement arrived identifying Vasquez
as the borrower. Id. ¶ 20. The complaint
alleges that Mahjor called Milan to ask who Vasquez was, and
Milan replied not to worry because "this was a
"quitclaim situation."' Id.
¶¶ 21-22. Mahjor did not understand this statement
and asked additional questions, after which Milan became
"angry and hostile." Id. ¶¶
22-24. After Mahjor said he was going to call the Federal
Bureau of Investigation ("FBI"), Milan responded
"by threatening to cut off plaintiff s legs at the knees
with a chain if he ever brought it up again or mentioned it
to anyone." Id. ¶¶ 25-26. Mahjor
immediately called the FBI, which launched an investigation.
Id. ¶¶ 27-28. Milan was ultimately
convicted of wire fraud and sentenced to 108 months'
imprisonment. United States v. Milan, l:09-cr-228
(TSE), [Dkt. 200] (E.D. Va. Mar. 12, 2010). According to the
complaint, "the loans identified as having been procured
via the fraud of Greenpoint, Milan and others, were all
declared void by the federal court, " Compl. ¶ 36,
but plaintiff has not provided any court records to support
that contention, nor has plaintiff explained how a court
could issue such a declaratory judgment through a criminal
to plaintiff, Milan also stole his $ 184, 000 down payment,
and took out an unauthorized second mortgage on the Property
with Citibank to cover the purchase price. Id.
¶ 35. Beginning in 2009, plaintiff began receiving
demands for payment from Countrywide. Id. ¶ 41.
Plaintiff contacted the U.S. Attorney's Office
("USAO"), which reached out to Country wide's
lawyers, after which the demands stopped. Id. ¶
43. A similar pattern ensued with Bank of America and Capital
One. Id. ¶¶ 43-47.
point,  Brock & Scott began to contact
plaintiff demanding payment on behalf of Greenpoint.
Id.¶48. This time, the USAO declined to
intervene on plaintiff s behalf. Id. ¶ 49. On
February 2, 2017, Brock & Scott notified plaintiff that a
trustee's sale would take place at a public auction on
March 9, 2017. [Dkt. 1-1] at 48. Plaintiff sought an
emergency injunction in state court, which was denied. Compl.
¶¶ 58-59. Plaintiff recorded a lis pendens
on the property, but TSV still conducted the sale on March 9,
2017, and FFC purchased the Property. Id.
¶¶ 61-62. Plaintiff, acting pro se, filed the
original complaint in the Stafford County Circuit Court on
February 21, 2017, which his counsel amended on April 3,
2017, to add Greenpoint and MERS along with all four of the
instant counts. [Dkt. 1] ¶¶ 1-2; [Dkt. 1-2] at
It is this First Amended Complaint which is presently before
these events, but unmentioned in the complaint, plaintiff was
engaged in serial bankruptcy proceedings in this district. As
Judge Ellis found on April 17, 2017, in affirming the
bankruptcy court's dismissal of plaintiff's most
recent Chapter 13 petition:
Debtor, Hamid R. Mahjor, is a serial bankruptcy filer. The
record reflects, as the Bankruptcy Judge concluded, that the
underlying purpose of these bankruptcy filings has been to
frustrate collection efforts by Debtor's creditors, who
include (i) the lien holder(s) on Debtor's home, where he
has resided for the past decade without making any mortgage
payments, and (ii) the victim of a crime the Debtor
committed, who is now entitled to restitution payments
pursuant to a criminal judgment entered against the Debtor by
the Stafford County Circuit Court.
[Dkt. 11-3] at 2. Judge Ellis then walked through the eight
bankruptcy petitions that Mahjor has filed since 2008. See
Id. at 2-4. Each of those petitions was
dismissed-two voluntarily and six by the bankruptcy
court. See Id. The seventh and eighth
petitions, which were 'Virtually identical, were
dismissed by the bankruptcy court based on a finding that
Mahjor was acting in bad faith and had a history of abusing
the bankruptcy process. Id. at 4-5. During the
hearing on his eighth petition, Mahjor gave inconsistent
testimony on the status of his mortgage debt, "[a]t
times ... appear[ing] to acknowledge borrowing money to
purchase his home, and at others...argu[ing] that he owes no
money on his home." Id. at 8.
Standard of Review
to Federal Rule of Civil Procedure 12(b)(6), a complaint
should be dismissed if it fails to state a claim upon which
relief can be granted. "To survive a motion to dismiss,
a complaint must set forth sufficient factual matter,
accepted as true, to 'state a claim for relief that is
plausible on its face.'" Ashcroft v. Iabal
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombry, 550 U.S. 544, 547 (2007)). The Court must
"assume that the facts alleged in the complaint are true
and draw all reasonable inferences in the plaintiffs favor,
" Burbach Broad. Co. of Del v. Elkins Radio
Corp., 278 F.3d 401, 406 (4th Cir. 2002), but only to
the extent that those allegations pertain to facts rather
than to legal conclusions, Iqbal 555 U.S. at 678.
Moreover, although a court may not ordinarily "consider
any documents that are outside of the complaint" without
converting the motion "into one for summary judgment,
-----[t]here is... a narrow exception 'for... official
public records[, ]'" among other documents.
Alternative Energy. Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (4th Cir. 2001) (quoting
Watterson v. Page. 987 F.2d 1, 3 (1st Cir. 1993)).
argue that plaintiffs claims are untimely based on
Virginia's two-year statute of limitations for actions
sounding in fraud. Plaintiffs only response is that his note
is "void ab initio" and therefore can
"be challenged at any time by anyone." PI. Opp.,
[Dkt. 26] at 4. Although defendants' argument does not
address each count with sufficient specificity, their
position is largely correct.
1 and 5 are equitable in nature. In Virginia, "[i]t is a
well-established principle uniformly acted upon by courts of
equity, that in respect to the statute of limitations equity
follows the law; and if a legal demand be asserted in equity
which at law is barred by statute, it is equally barred in
equity." Kappa Sigma Fraternity. Inc. v. Kappa Sigma
Fraternity, 266 Va. 455, 467 (2003) (internal quotation
omitted). The shared premise of plaintiff s equitable action
to rescind the foreclosure sale and his quiet title action is
that the promissory note was secured by fraud-namely, the
inclusion of the fictitious Vasquez as a party-and therefore
void ab initio, PI. Opp., [Dkt. 26] at 3-4, 6.
Setting aside the viability of this theory for the moment, it
is clear that the appropriate legal analog is fraud.
Virginia, a fraud action must be brought within two years of
the date that the fraud occurred, or one year of the date on
which plaintiff should reasonably have discovered the fraud,
whichever results in the longer period. Va. Code. §
8.01-243. Because plaintiff acknowledges receiving the
statement with Vasquez's name on it within five months of
signing the loan documents on June 29, 2007, Compl. ¶
20, the longer of the periods is two years from the date on
which the fraud allegedly occurred-June 29, 2007. Because
these claims were not brought until April 6, 2017, nearly
eight years too late, Counts 1 and 5 are clearly time
3, the remaining state law claim, is for slander of title.
Currently, "there is no controlling authority indicating
which statute of limitations applies to slander of title
actions" in Virginia. Koz v. Wells Fargo Home
Mortg., 83 Va. Cir. 96, at *5 (Va. Cir. 2011). There are
three options for the applicable limitations period: the
one-year period for defamation; the two-year
"catch-all" period in Va. Code § 8.08-248; or
the five-year period applicable to injury to property.
Id. at *5-*6. This cause of action is titled
"slander of title" because it "involves
allegations of 'falsehoods which are not personally
defamatory, and yet cause pecuniary loss, '"
Id. at *5 (quoting Prosser and Keeton on the Law
of Torts., § 128 at 962 (5th ed. 1984)), meaning it
is more properly considered "a form of interference with
economic relations, and that the one-year statute of
limitations for defamation is not applicable, "
Id. Similarly, the injury to property limitation is
"narrowly defined to include only those acts which
'involve allegations of wrongful exercise of control over
the property of another, '" Id. (quoting
Willard v. Moneta Bldg. Supply, 262 Va. 473, 480
(2001)), rather than conduct that "does not alter the
condition or availability for use of the property[J"
Id. Accordingly, the two-year catch-all provision is
the correct limitations period for slander of title. See
has identified six allegedly "slanderous documents,
" identified as Exhibits B, C, D, F, G, and H to the
complaint. Compl. 12. Exhibits B and C were created (and
signed by plaintiff) in 2007, meaning they are time-barred.
Similarly, Exhibit F was created in 2008, Exhibit G in 2011,
and Exhibit H in 2013, making all of them time-barred as
well. Only Exhibit D, which was created in 2016, is recent