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Sibert v. Wells Fargo Bank, N.A.

United States Court of Appeals, Fourth Circuit

July 17, 2017

RICHARD D. SIBERT, Plaintiff - Appellant,
v.
WELLS FARGO BANK, N.A., Defendant-Appellee.

          Argued: May 10, 2017

         Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:14-cv-00737-HEH)

         ARGUED:

          John Daniel Hafemann, MILITARY JUSTICE ATTORNEYS, PLLC, Savannah, Georgia; Jeremy S. McKenzie, KARSMAN, MCKENZIE & HART, Savannah, Georgia, for Appellant.

          Terry Catherine Frank, KAUFMAN & CANOLES, P.C., Richmond, Virginia, for Appellee.

         ON BRIEF:

          Hunter W. Sims, Jr., KAUFMAN & CANOLES, P.C., Norfolk, Virginia, for Appellee.

          Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

          NIEMEYER, Circuit Judge.

         While 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.

         Sibert 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.

         For the reasons that follow, we affirm.

         I

         Sibert 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 Bank, N.A.

         After 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 foreclosure sale."

         Over a 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. ...


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