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Norman v. Wells Fargo Bank

United States District Court, E.D. Virginia, Richmond Division

February 23, 2018

RENEE NORMAN, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.


          Henry E. Hudson United States District Judge.

         This 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.)[1] 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. 7(J).

         For the 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.

         I. BACKGROUND

         As 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.

         Plaintiff, 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.)

         Plaintiff 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.)

         Defendant 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.


         "A 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).

         Additionally, 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).

         III. ANALYSIS

         At the 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.[2]

         A. Count I: Breach of Contract[3]

         In 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.").

         Notwithstanding 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 prior. (Id.)

         Despite 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. 2006)

         For these reasons, the Court will dismiss Plaintiffs breach of contract claim without prejudice.

         B. Count II: Breach Duty of Good Faith and Fair Dealing

         Virginia 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 ...

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