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Blick v. Shapiro & Brown, LLP

United States District Court, W.D. Virginia, Charlottesville Division

March 29, 2018

Harold Blick, Plaintiff,
v.
Shapiro & Brown, LLP, Deutsche Bank National Trust Co., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Harold Blick, proceeding pro se, moves for summary judgment.[1] (Dkt. 68). Plaintiff currently has two claims before the Court, one against each Defendant, stemming from the foreclosure of his property: (1) a breach of contract claim against Defendant Deutsche Bank National Trust Company (“DBNTC”) for allegedly violating a condition in a deed of trust; and (2) a claim against Defendant Shapiro & Brown, LLP (“Shapiro”) for allegedly violating 15 U.S.C. § 1692g(b). Because Plaintiff has failed to make an initial showing regarding either claim, his motion will be denied.

         I. Standard of Review

          The Court should grant summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). If the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. [S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         II. Breach of Contract Claim for Violating the Deed of Trust[2]

         Under Virginia law, a borrower on a home mortgage may sue for breach of contract if the lender initiates foreclosure without complying with contractual predicates to foreclosure found in the deed of trust. See Bayview Loan Servicing, LLC v. Simmons, 654 S.E.2d 898, 902 (Va. 2008); Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 199-200 (Va. 2012). Specifically, Bayview held that failure to properly provide pre-acceleration notice was a breach of the deed of trust and prevented the noteholder from exercising its right of acceleration. Bayview, 275 Va. at 122. Plaintiff contends that Defendant DBNTC violated the conditions of the deed of trust by failing to properly provide pre-acceleration notice. Plaintiff, having moved for summary judgment, has the initial burden to establish his prima facie case.

[I]f the movant bears the burden of proof on a claim at trial, then its burden of production [on summary judgment] is greater. It must lay out the elements of its claim, citing the facts it believes satisfies those elements, and demonstrating why the record is so one-sided as to rule out the prospect of the nonmovant prevailing. If the movant fails to make that initial showing, the court must deny the motion, even if the opposing party has not introduced contradictory evidence in response.

10A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2727.1 (4th ed. 2017). Plaintiff has failed to make this initial showing.

         The evidence cited by Plaintiff fails to establish his prima facie case.[3] Plaintiff directs the Court to an interrogatory as proof that pre-acceleration notice was not provided. However, this interrogatory was objected to and does not support Plaintiff's claim. Defendant's response, without waiving its objection, stated:

[P]laintiff had for many years failed to make payments, filed multiple lawsuits and appeals, and otherwise impeded the ability of the noteholder to receive payments or to exercise its rights under the deed of trust. Throughout each of these [prior] lawsuits plaintiff was aware that the mortgage had been accelerated and payment in full demanded . . . .

(Dkt. 43-1 at ECF 4). This response provides no support for Plaintiff's claim that Defendant failed to provide pre-acceleration notice. Plaintiff also appears to direct the Court to allegations in his pleadings as evidence-but this too is insufficient. Warren v. Tri Tech Labs., Inc., No. 6:12-CV-00046, 2013 WL 2111669, at *7 (W.D. Va. May 15, 2013) (“To show that a genuine dispute of material fact exists (or does not exist), a party may not rest upon the mere allegations or denials of his pleadings.” (citing Celotex, 477 U.S. at 324)). Ultimately, Plaintiff has failed to make the required initial showing for the Court to rule on this claim as a matter of law.

         III. 15 U.S.C. § 1692g(b) Claim

         Plaintiff similarly fails to make an initial showing that he did not receive validation of the debt as required by the Fair Debt Collections Practices Act. See 15 U.S.C. § 1692g(b).

If the consumer notifies the debt collector . . . that the debt, or any portion thereof, is disputed, . . . the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . . and a copy of such ...

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