United States District Court, E.D. Virginia, Alexandria Division
CLAIR L. EGGIMAN, Plaintiff,
VENTURES TRUST 2013-I-H-R BY MCM CAPITAL PARTNERS, LLC, ITS TRUSTEE, et al.r Defendants.
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants Ventures Trust
2013 I-K-R and Servis One, Inc.'s Motion to Dismiss
Plaintiffs Amended Complaint pursuant to Rule 12(b)(6) for
failure to state a claim.
case concerns the assignment of a mortgage on Plaintiff Clair
Eggiman's property located in Fairfax County, Virginia,
and the subsequent foreclosure sale of the same property.
Plaintiff borrowed $392, 000.00 in August 2005, pursuant to
an Adjustable Rate Note and Deed of Trust with Defendant Bank
United. In December 2014, Bank United assigned
Plaintiff's mortgage to Defendant Ventures Trust 2013
I-H-R ("Ventures Trust"), which later sold the
property at a foreclosure sale in January 2016 for $334,
000.00 to Defendant Servis One, Inc., d/b/a BSI Financial
motion to dismiss tests the sufficiency of the complaint.
See Republican Party of N.C. v. Martin, 980 F.2d
943, 952 (4th Cir. 1992). In a Rule 12(b)(6) motion to
dismiss, the court must accept all well-pled facts as true
and construe those facts in the light most favorable to the
plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint must provide a short and plain
statement showing that the pleader is entitled to relief,
Fed.R.Civ.P. 8(a)(2), and it must state a plausible claim for
relief to survive a motion to dismiss, Iqbal, 556
U.S. at 679. The court does not accept as true any
"unwarranted inferences, unreasonable conclusions, or
arguments." E. Shore Markets, Inc. v. J.D.
Associates Ltd., 213 F.3d 175, 180 (4th Cir. 2000). If
the complaint does not state a plausible claim for relief,
the court should dismiss the case. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
alleges five causes of action in his First Amended Complaint.
The first cause of action is a breach of contract claim
asserted only against Bank United. Since this Motion to
Dismiss is brought only by Defendants Ventures Trust and BSI,
this first claim is not discussed here. The second cause of
action alleges both a quiet title claim and a slander of
title claim. The third cause of action alleges violations of
"Federal and State Fair Debt Collection Acts." The
fourth cause of action alleges violations of the Real Estate
Settlement Procedures Act ("RESPA"). Finally, the
fifth cause of action alleges a claim of wrongful
respect to Plaintiff's quiet title claim, the Amended
Complaint fails to state a plausible claim because Plaintiff
does not allege that he had superior title through
satisfaction of loan obligations. See Jones v. Fulton
Bank, No. 3:13-cv-00126, 2013 WL 3788428, at *8 (E.D.
Va. July 18, 2013) ("To assert a claim for quiet title,
the plaintiff must plead that he has fully satisfied all
legal obligations to the party in interest."). Because
Plaintiff has not alleged facts to plausibly support the
conclusion that Plaintiff had satisfied all loan obligations,
he has not stated a claim for quiet title upon which recovery
may be had.
further claims that BSI committed slander of title by
claiming title to Plaintiff's property. Under Virginia
law, a necessary element of a slander of title claim is false
statements made with "malice or in reckless disregard of
the truth." Poindexter v. Mercedes-Benz Credit
Corp., 792 F.3d 406, 411 (4th Cir. 2015) (quoting
Wright v. Castles, 232 Va. 218, 224 (1986)). Even
assuming that BSI's claim to legal title of the property
following the foreclosure sale is a false statement as
Plaintiff alleges, Plaintiff has failed to plausibly allege
malice. Plaintiff has made conclusory allegations that
BSI's "assertion of title to Plaintiff's
property is wrongful and malicious" and that
"BSI's conduct is malicious and reckless, " but
has not otherwise alleged any facts to support that
conclusion. Plaintiff has therefore failed to state a claim
upon which recovery may be had.
alleges that Ventures Trust and BSI violated "Federal
and State debt collection laws." The Amended Complaint
first references provisions of the Virginia Consumer
Protection Act, Va. Code Ann. § 59.1-197, et
seq., and alleges that Defendants violated that act
because they "failed and refused to give Plaintiff the
required notices and failed to provide Plaintiff full and
complete proof of the mortgage debt." However, that act
expressly excludes mortgage lenders, and thus does not apply
to Defendants. Id. § 59.1-199(D).
also alleges that Defendants violated the federal Fair Debt
Collection Practices Act ("FDCPA"). 15 U.S.C.
§ 1692. The FDCPA applies only to "debt collectors,
" a term of art defined by the FDCPA. 15 U.S.C. §
1692a(6). "It is well-established in this District that
debt collectors do not include creditors, mortgagers,
mortgage servicing companies, trustees exercising their
fiduciary duties, or assignees of debt so long as the debt
was not in default at the time it was assigned."
Velez v. Bank of New York Mellon Trust Co. N.A., No.
1:12-cv- 01008, 2012 WL 5305508, at *4 (E.D. Va. Oct. 23,
2012) (citing Ruggia v. Washington Mut., 719
F.Supp.2d 642, 648 (E.D. Va. 2010)).
Ventures Trust nor BSI qualifies as a debt collector. BSI was
a mortgage servicer of Plaintiff's loan, and Plaintiff
has not alleged that Ventures Trust purchased the property
while it was in default. Thus, Plaintiff cannot state a
plausible claim for recovery under the FDCPA.
next alleges that the Defendants violated provisions of RESPA
by failing to provide Plaintiff with information relating to
his mortgage upon his request. RESPA requires that covered
creditors must respond to "qualified written
requests" for information from a debtor. 12 U.S.C.
§ 2605(e). In order to qualify, a request must be in the
form of written correspondence and must provide sufficient
detail for the creditor to identify the borrower and the
information sought. Id. However, Plaintiff's
complaint does not allege that his requests were made in
writing, or that the requests otherwise met the criteria for
a qualified written request. Therefore, Plaintiff has not
stated a claim for recovery under RESPA.
final cause of action is a wrongful foreclosure claim, in
which Plaintiff raises several challenges against
Defendants' standing to foreclose on his property. As an
initial matter, Virginia law does not recognize an
independent claim for wrongful foreclosure. See,
e.g., Hien Pham v. Bank of Hew York, 856
F.Supp.2d 804, 811 (E.D. Va. 2012) ("Virginia does not
recognize a cause of action for wrongful foreclosure.").
Thus, this cause of action fails to state a claim upon which
recovery may be had for that reason. Plaintiff's request
to certify this question to the Supreme Court of Virginia is
each of Plaintiff's arguments against Defendants'
standing to foreclose fails to state a claim upon which
recovery may be had. Plaintiff argues that the Deed of Trust
was not properly assigned from Defendant Ventures Trust to
Defendant BSI or Defendant Trustee Services. However,
Plaintiff lacks standing to challenge the assignment, because
Plaintiff was not a party to nor an intended beneficiary of
the assignment. See Hardnett v. M&T Bank, 204
F.Supp.3d 851, 858 (E.D. Va. 2016).
also argues that Defendant Ventures Trust did not have
standing to conduct a foreclosure sale because it did not
hold the original note at the time of the foreclosure.
However, a transferee noteholder has the authority to enforce
a note by appointing a substitute trustee and foreclosing on
the underlying property. Horvath v. Bank of America,