RICHARD D. SIBERT, Plaintiff - Appellant,
WELLS FARGO BANK, N.A., Defendant-Appellee.
Argued: May 10, 2017
from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Daniel Hafemann, MILITARY JUSTICE ATTORNEYS, PLLC, Savannah,
Georgia; Jeremy S. McKenzie, KARSMAN, MCKENZIE & HART,
Savannah, Georgia, for Appellant.
Catherine Frank, KAUFMAN & CANOLES, P.C., Richmond,
Virginia, for Appellee.
W. Sims, Jr., KAUFMAN & CANOLES, P.C., Norfolk, Virginia,
NIEMEYER, KING, and DUNCAN, Circuit Judges.
NIEMEYER, Circuit Judge.
serving in the U.S. Navy, Richard Sibert obtained a loan
secured by a mortgage to purchase a house in Virginia Beach,
Virginia. Soon after his discharge from the Navy, he
defaulted on the loan, and the lender began foreclosure
proceedings. During those proceedings, however, and before
any foreclosure sale was held, Sibert enlisted in the U.S.
Army. The lender continued to pursue foreclosure and sold
Sibert's house at a foreclosure sale shortly after Sibert
had begun his service in the Army.
commenced this action against Wells Fargo Bank, N.A.,
alleging that the foreclosure sale was invalid under the
Servicemembers Civil Relief Act ("SCRA"), which
requires a lender to obtain a court order before foreclosing
on or selling property owned by a current or recent
servicemember where the mortgage obligation "originated
before the period of the servicemember's military
service." 50 U.S.C. § 3953(a); see id.
§ 3953(c). The district court granted summary judgment
to Wells Fargo, concluding that, because Sibert incurred his
mortgage obligation during his service in the Navy, the
obligation was not subject to SCRA protection.
reasons that follow, we affirm.
entered the Navy in July 2004, and while in the Navy - on May
15, 2008 - he purchased a house in Virginia Beach, financing
the purchase with a loan of $174, 650 from Advance Mortgage,
which was secured by a deed of trust on the house.
Sibert's loan was subsequently acquired by Wells Fargo
his discharge from the Navy in July 2008, Sibert went into
default on his loan, and, several months later, Wells Fargo
mailed him a notice a default. In March 2009, Wells Fargo
notified Sibert that it had begun steps to foreclose on his
house. But, a month later, before the foreclosure sale,
Sibert enlisted in the Army. In May 2009, just after Sibert
entered the Army, Wells Fargo sold Sibert's house at a
foreclosure sale. After signing a move-out agreement, Sibert
also executed a "Servicemembers' Civil Relief Act
Addendum to Move Out Agreement, " in which he stated
that he was "affirmatively waiv[ing] any rights and
protections provided by [50 U.S.C. § 3953] with respect
to the May 15, 2008 Deed of Trust . . . and the May 13, 2009
year later, Sibert and his wife filed a voluntary Chapter 7
bankruptcy petition. In their filings, they did not list any
potential claims against Wells Fargo, nor did they advise the
bankruptcy court or the trustee of any such possible claim.