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., Defendants.
MATTER comes before the Court on Defendants BankUnited, N.A.,
and Trustee Service's Motions to Dismiss Plaintiff's
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
BankUnited. In December 2014, BankUnited assigned
Plaintiff's mortgage to Defendant Ventures Trust 2013
I-H-R, 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 Services. Defendant Trustee Services was
the appointed Substitute Trustee of the Plaintiff's Deed
of Trust and was involved with the January 2016 foreclosure
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 facrs 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.P.
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 BankUnited. 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
breach of contract claim, Plaintiff alleges that BankUnited
did not provide notice for change of servicer, notice of
acceleration, notice of default, or notice to reinstate the
loan. Under the Deed of Trust, the Note and the Deed of Trust
can be sold one or more times without prior notice to the
borrower. Am. Compl., Ex. B, ¶20. Thus, an assignment of
the Deed of Trust to Ventures Trust without prior notice was
expressly permitted. Plaintiff also claims that he did not
receive notice of the assignment or change in loan servicer.
However, attached to the Amended Complaint is a letter dated
December 11, 2014 from BSI to Plaintiff informing Plaintiff
that Ventures Trust purchased the loan and BSI was the new
servicer of the loan.
further alleges that he did not receive a notice of
acceleration. The Note provides that the Lender may require
immediate payment in full of all sums secured by the
Agreement. Plaintiff fails to allege that BankUnited required
immediate payment of the Loan at any time thereby
accelerating the payment. For the notice of default, and the
notice of right to reinstate the loan, the Deed provides that
the Plaintiff is required to give notice and opportunity to
the Lender to cure any breach of the Deed of Trust prior to
instituting legal action against the Lender. Am. Compl., Ex.
B ¶20. Plaintiff fails to allege specific facts that he
provided any notice or opportunity to cure to the Lender
before initiating this action. Plaintiff has therefore not
stated a plausible claim for breach of contract.
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."}. Further, Defendant Trustee
Services does not currently have a claim to the property nor
has Plaintiff alleged that it does. For these reasons,
Plaintiff has not stated a claim for quiet title upon which
recovery may be had.
respect to the slander of title claim, Plaintiff does not
allege a claim against Defendant BankUnited or Defendant
Trustee Services. Plaintiff has therefore not pled sufficient
factual allegations to support a claim for slander of title
against either defendant.
alleges that BankUnited and Trustee Services 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 seg., and alleges that Defendant
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 banks, and thus does not
apply to BankUnited. Id; § 59.1-199(D).
regards to Defendant Trustee Services, that act does not
require that Defendant provide "complete proof of the
mortgage debt, " but rather, that notice of the
foreclosure sale is sent 14 days before the scheduled
foreclosure sale. Id. § 59.1-199(A). Plaintiff
acknowledges receiving notice of the foreclosure sale on
January 19, 2016 for the January 27, 2016 foreclosure.
Plaintiff does not allege any specific factual allegations as
to which other provisions of the code Defendant Trustee
Services may have violated.
also alleges that BankUnited and Trustee Services 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 Hew 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)).
has not alleged, nor is it actually the case, that BankUnited
qualifies as a debt collector. As Plaintiff noted in the
Amended Complaint, BankUnited originated the loan. The term
"debt collector" expressly excludes "any
person collecting or attempting to collect any debt owed or
due or asserted to be owed or due another to the extent that
such activity ... concerns a debt which originated by such
person...." 15 U.S.C. §1692a(6)(F)(ii).
pertains to Trustee Services, 15 U.S.C. § 1692g requires
certain disclosures to the debtor/borrower in the initial
communication with the debtor/borrower, or within five days
of the initial communication. Cnce that disclosure is made,
the debtor/borrower has thirty days to dispute the debt or
any portion thereof; otherwise the debt is statutorily
considered to be valid.
does not allege in the pleadings that he stated or gave proof
of when he disputed the debt, what part of the debt was
disputed, or when a ...