United States District Court, E.D. Virginia, Alexandria Division
Barbara L. Combs, Plaintiff,
U.S. Bank National Association, as Trustee for JP ALT 2006-SI, Defendant.
John F. Anderson
O'GRADY United States District Judge
case comes before the Court on Defendants' motions to
dismiss. Specifically, U.S. Bank has filed a substantive
motion to dismiss for failure to state a claim. (Dkt. No. 3).
Co-Defendant Surety Trustees, LLC ("Surety") has
also filed a motion to dismiss in which it joins with, and
incorporates the reasons for, U.S. Bank's motion. (Dkt.
No. 10). Plaintiff concedes that Surety is only a
"nominal party" but contends that it is also a
necessary party under Virginia law because Plaintiff seeks
rescission of a foreclosure action. Opp'n at 2 (Dkt. No.
15). The matter has been fully briefed and the Court found
that oral argument was not necessary for the resolution of
the motions. For the following reasons, the Court finds good
cause to GRANT Defendants' motions.
Accordingly, Counts II and III will be dismissed with
prejudice. Count I will be dismissed without prejudice.
subject of this dispute is a piece of real properly located
at 20760 Dewberry Court, Ashbury, Virginia 20147 (the
"Property"). On April 26, 2006, Plaintiff entered
into a mortgage loan, which was evinced by a note and secured
by a duly-recorded deed of trust. Defendant U.S. Bank
subsequently claimed ownership of the note and appointed
Defendant Surety Trustees as substitute trustee on the deed
of trust. On August 28, 2014, U.S. Bank instructed Surety
Trustees to foreclose on the Property.
deed of trust required that any foreclosure proceeding
comport with "Applicable Law." Compl. ¶ 23.
"Applicable Law, " in rum, is defined in the deed
of trust as "all controlling applicable federal, state,
and local statutes, regulations, ordinances and
administrative rules and orders (that have the effect of law)
as well as ali applicable final, non-appealable judicial
opinions." Compl. ¶25.
alleges that "[a]fter U.S. Bank . . . made the first
filing towards the applicable foreclosure, and more than 37
days before August 28, 2014, Combs property [sic] submitted a
loan modification application for modification of the
loan." Compl. ¶ 10. U.S. Bank apparently did not
act in response to this application, but instead continued
with the foreclosure proceeding. After the foreclosure, U.S.
Bank "made negative reports to credit reporting agencies
that it had properly foreclosed on the home, which damaged
Combs' credit rating to her economic prejudice."
claims the following damages: (1) loss of title; (2)
deprivation of quiet enjoyment; (3) loss of equity in her
home; (4) damaged credit rating; (5) legal costs and
attorney's fees; (6) cost of paying bond; (7)
inconvenience; and (8) loss of "interest on the
aforesaid damages." Compl. ¶ 18. She seeks $200,
000 in damages and rescission of the foreclosure of her home.
considering a motion to dismiss, the Court accepts as true
all of the factual allegations contained in the complaint,
construing them in the light most favorable to the plaintiff.
United States ex rel Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (4th Cir. 2014). To defeat the
motion, the Plaintiff must allege enough allegations of fact
"to state a claim for relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). In this regard, bald legal assertions
without factual support need not be accepted. Id.
Indeed, the Court may not rely on mere "labels and
conclusions" or the complaint's "formulaic
recitation of the elements of a given cause of action in
deciding the motion. Id. at 555.
Complaint alleges three counts against Defendants: (1) breach
of Dodd-Frank; (2) breach of "Applicable Law"
provision in the deed of trust for violation of Dodd-Frank;
and (3) breach of "Applicable Law" provision in the
deed of trust for a breach of the consent order entered into
by U.S. Bank on April 13, 2011 with the Comptroller of
Currency. The first claim cannot succeed as pled; however,
the Court will give Plaintiff an opportunity to re-plead this
Count. In doing so, however, the Court notes that rescission
of foreclosure is not a permissible remedy. The breach of
contract claims fail as a matter of law and will be dismissed
with prejudice. These claims will be addressed in turn.
Count I: Violation of RESPA
Defendants point out, Plaintiffs claim for a "breach of
Dodd-Frank" does not allege which provision of the
Dodd-Frank Act was actually violated. Rather, the Complaint
appears to allege a violation of the Consumer Financial
Protection Bureau's ("CFPB") federal loss
mitigation procedures governing foreclosures. These regulations
are related to the Dodd-Frank Act because they were
promulgated by the CFPB, which was authorized by the
Dodd-Frank Act to enact binding rules under Real Estate
Settlement Procedures Act ...