United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
E. Hudson United States District Judge.
matter is before the Court on Defendant Wells Fargo Bank,
N.A.'s ("Defendant") Motion to Dismiss (ECF No.
3), filed on August 23, 2017. The Motion included an
appropriate Roseboro Notice, as required by Local Civil Rule
7(K) and the Fourth Circuit's decision in Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975). All parties have
filed memoranda supporting their respective positions. (ECF
Nos. 4, 8-9.) The Court will dispense with oral argument
because the facts and legal contentions are adequately
presented in the materials before it, and oral argument would
not aid in the decisional process. E.D. Va. Local Civ. R.
reasons set forth below, the Court will grant Defendant's
motion. This case will be dismissed in part with prejudice
and in part without prejudice.
required by Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court assumes Plaintiffs well-pleaded
allegations to be true and views all facts in the light most
favorable to him. T.G. Slater & Son v. Donald P.
& Patricia A. Brennan LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)). Viewed through this lens,
the facts are as follows.
a resident of Chesterfield County, Virginia, purchased a home
located at 3430 Lady Marian Court, Midlothian, Virginia 23113
("Property") in 2002 and financed that transaction
with a mortgage loan from Defendant. (Compl. 1-2, ECF No.
1-4.) Plaintiff identifies that the loan amount was
approximately $400, 000 and that both parties revised the
loan agreement in October 2013. (Id. at 1.)
defaulted on her loan in December 2014 and received notice on
June 20, 2017 that a foreclosure sale of the Property was
scheduled for July 13, 2017. (Compl. 1.) Plaintiff,
proceeding pro se, filed suit in Chesterfield
Circuit Court on July 12, 2017, alleging that Defendant
violated numerous state and federal laws by breaching the
terms of the contract. (Id. at 1-4.) Plaintiff seeks
injunctive relief, declaratory relief and damages.
(Id. at 3-4.)
successfully removed the case from state court to this Court
pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446
(Notice of Removal 1, ECF No. 1) and subsequently filed a
Motion to Dismiss (ECF No. 3) on August 23, 2017.
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). The Federal Rules of Civil Procedure
"require only 'a short and plain statement of the
claim showing that the pleader is entitled to relief, '
in order to 'give the defendant fair notice of what the
... claim is and the grounds upon which it rests."'
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint need not assert "detailed factual
allegations, " but it must contain "more than
labels and conclusions" or a "formulaic recitation
of the elements of a cause of action." Twombly,
550 U.S. at 555 (citations omitted). Thus, the
"[f]actual allegations must be enough to raise a right
to relief above the speculative level" to one that is
"plausible on its face" rather than merely
"conceivable." Id. at 555, 570. In
considering such a motion, a plaintiffs well-pleaded
allegations are taken as true, and the complaint is viewed in
the light most favorable to the plaintiff. T.G. Slater
& Son v. Donald P. & Patricia A. Brennan LLC,
385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
Legal conclusions enjoy no such deference. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
the Court acknowledges that pro se complaints are
afforded a liberal construction. Laber v. Harvey,
438 F.3d 404, 413 n.3 (4th Cir. 2006). However, the
requirement of a liberal construction does not excuse a clear
failure in the pleading to allege a federally cognizable
claim. See Weller v. Dep't of Soc. Servs., 901
F.2d 387, 390-91 (4th Cir. 1990). As the Fourth Circuit
explained in Beaudett v. City of Hampton,
"[t]hough [pro se] litigants cannot, of course,
be expected to frame legal issues with the clarity and
precision ideally evident in the work of those trained in
law, neither can district courts be required to conjure up
and decide issues never fairly presented to them." 775
F.2d 1274, 1276 (4th Cir. 1985).
outset, the Court notes that it is difficult to discern from
the Complaint precisely what conduct Plaintiff alleges gives
rise to the various claims she asserts. Defendant addresses
the individual claims raised by Plaintiff, but also contends
that the Complaint as a whole fails to comply with the
minimum pleading standards required under Rule 8 of the
Federal Rules of Civil Procedure. Plaintiffs Memorandum in
Opposition (ECF No. 8) does little to address the issues
raised by Defendant; instead, Plaintiff includes several
quotations from various legal authorities and raises the
issue of standing.
Count I: Breach of Contract
Virginia, "[t]he elements of a breach of contract action
are (1) a legally enforceable obligation of a defendant to a
plaintiff; (2) the defendant's violation or breach of
that obligation; and (3) injury or damage to the plaintiff
caused by the breach of obligation." William H.
Gordon Assocs., Inc. v. Heritage Fellowship, United Church of
Christ, 291 Va. 122, 784 S.E.2d 265, 274 (Va. 2016).
Plaintiff bears the burden of proving that Defendant breached
the contract. See Carley Capital Group v. Newport
News, 709 F.Supp. 1387, 1396 (E.D. Va. 1989) ("In
order to recover for breach of [a contract], plaintiffs must
prove, by a preponderance of evidence ... the defendants have
failed to perform under or breached the agreements.").
the liberal construction afforded to pro se
complaints, Plaintiff fails to state a claim for breach of
contract. It is not clear from the face of the Complaint what
contractual obligation Plaintiff alleges Defendant breached
or what conduct gave rise to this alleged breach. It appears
that Plaintiffs claim stems from the notice provided to her
by Defendant in relation to her default and the subsequent
scheduling of a foreclosure. (Compl. 1.) Specifically, the
Complaint states: "June 20, 2017 the plaintiff receives
Notice of Trustee Sale scheduling a non-judicial foreclosure
auction date of July 13, 2017 ... Wells Fargo failed to send
a notice to cure 30 days prior to foreclosure."
(Id.) Defendant construes Plaintiffs claim as
relating to a loan provision that requires the lender to
provide the borrower with notice of default thirty days prior
to foreclosure. (Mem. Supp. Mot. Dismiss 6-7.) Defendant
argues that Plaintiff misinterprets this provision to require
that notice be received thirty days prior to
foreclosure, as opposed to merely sent thirty days
Defendant's admirable attempt at interpreting the
Complaint, the Court cannot construct Plaintiffs arguments
for her. See United States v. Wilson, 699 F.3d 789,
797 (4th Cir. 2012) ("[T]he special judicial solicitude
with which a district court should view ... pro se filings
does not transform the court into an advocate."
(internal citations omitted)). The Complaint contains only
limited details on the contents of Plaintiff s mortgage loan
with Wells Fargo and makes no mention of the provision that
Defendant cites. Moreover, even if the Court were to agree
with Defendant's construction and determine that
Plaintiffs claim flows from the aforementioned notice
provision, the Complaint is at best internally inconsistent
as to how that provision was breached. While Plaintiff makes
one allegation that Defendant did not send the notice in a
timely fashion, she makes three other allegations related to
her receiving notice. Plaintiff s pro se status
entitles her to some leeway; however, the Court is not
empowered to discern her "unexpressed intent."
Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir.
these reasons, the Court will dismiss Plaintiffs breach of
contract claim without prejudice.
Count II: Breach Duty of Good Faith and Fair Dealing
law recognizes the duty of good faith and fair dealing
implicit in contracts. Va. Vermiculite, Ltd. v. W.R.
Grace & Co.,156 F.3d 535, 542 (4th Cir. 1998).
Breach of this duty gives rise to a claim for breach of
contract, as opposed to a claim in tort. Importantly though,
"when parties to a contract create valid and binding
rights, an implied covenant of good faith and fair dealing is
inapplicable to those rights." Ward's Equip.,
Inc. v. New Holland N. Am.,254 Va. 379, 493 S.E.2d 516,
520 (Va. 1997). Thus, "no implied duty arises with
respect to activity governed by express contractual
terms" except in limited circumstances. Skillstorm,
Inc. v. Electronic Data Systems, LLC, 666 F.Supp.2d ...