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Roman v. U.S. Bank N. A.

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

May 18, 2018

THERESA B. ROMAN, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, as TRUSTEE for GSAA HOME EQUITY TRUST 2006-12, ASSET-BACKED CERTIFICATES, SERIES 2006-12, Defendant.

          MEMORANDUM OPINION

          Henry E. Hudson United States District Judge

         This matter is before the Court on Plaintiff Theresa B. Roman's ("Plaintiff) Motion for Leave to File an Amended Complaint and Seeking Leave to File Late Opposition to Motion to Dismiss on the Pleadings; Alternatively, Motion for Leave to Dismiss Without Prejudice (ECF No. 7), filed on April 20, 2018. On May 7, 2018, this Court issued an Order (ECF No. 11) denying Plaintiff leave to file an amended complaint and granting Plaintiffs alternative motion to dismiss without prejudice. The Court's reasoning underlying that Order is articulated below.

         I. BACKGROUND

         On April 28, 2006, Plaintiffs mother Venice E. Briggs ("Briggs") entered into a loan agreement with Madison Funding Inc. that was eventually assigned to Defendant U.S. Bank National Association ("Defendant"). (Compl. ¶¶ 4, 6, ECF No. 1-3.) The loan was secured by a deed of trust -signed by both Briggs and Plaintiff-that became a lien on the property located at 5405 Wellington Ridge Road, Richmond, Virginia 23231 ("Property"). (Id. ¶ 4.)

         In August 2006, Venice Briggs died, and Plaintiff became the sole owner of the Property and the personal representative of Briggs's estate. (Id. ¶¶ 9, 14.) In September 2006, Plaintiff "re-executed the deed of trust to correct a technical error in the description of the residence." (Id. ¶ 9.)

         Paragraph 22 of the re-executed deed ("Deed") contains a provision that allows for an acceleration of the loan in the event of a default. (Id. at Ex. A.) This provision requires the Lender to send the Borrower notice prior to acceleration that provides the Borrower with information related to curing the default. (Id.) According to paragraph 15 of the Deed, "[n]otice to any one Borrower shall constitute notice to all Borrowers." (Id.) The Deed also includes a page titled "Exhibit A, " which contains a handwritten message that states: "said Venice Briggs departed from this life on or around August 31, 2006." (Id.) However, Venice Briggs remains listed as a Borrower in the Deed. (Id.)

         On July 12, 2017, Defendant sent a notice to the Property that was addressed to Venice Briggs and provided the information required by paragraph 22. (Id. ¶ 17.) Subsequently, a foreclosure of the Property was scheduled for January 18, 2018, which Plaintiff contends is "void, alternatively voidable." (Id. ¶ 29.)

         II. STANDARD OF REVIEW

         Rule 15 of the Federal Rules of Civil Procedure provides that parties should "freely" be given leave to amend their pleadings "when justice so requires." Fed.R.Civ.P. 15(a)(2). As the Fourth Circuit has explained, "[a] motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile." Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)).

         Amendment is futile when a proposed amended complaint fails to state a claim. U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008). Whether a complaint fails to state a claim, and thus whether amendment would be futile, is analyzed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level, " BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted), to one that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. In considering a Rule 12(b)(6) 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) (citation omitted). Legal conclusions enjoy no such deference. Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009).

         III. DISCUSSION

         Plaintiffs Complaint asserts two counts. Count One alleges that Defendant breached the Deed by addressing the notice to Briggs, even though Defendant was made aware of Briggs's death in 2006. Count Two alleges that Trustee Services, which was not included as a party to this action, owed Plaintiff a fiduciary duty not to foreclose on the Property. Plaintiffs proposed Amended Complaint (ECF No. 7-1) only asserts one count for breach of the Deed and adds Trustee Services as a nominal party. The claim for breach of the Deed in both Plaintiffs Complaint and her proposed Amended Complaint rely on the same allegations.

         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, 784 S.E.2d 265, 274 (Va. 2016). "When the language of a deed is 'clear, unambiguous, and explicit, ' a court interpreting it 'should look no further than the four corners of the instrument under review.'" Utsch v. Utsch, 581 S.E.2d 507, 509 (Va. 2003) (quoting Pyramid Dev. v. D&JAssocs., 553 S.E.2d 725, 728 (Va. 2001)).

         Plaintiffs proposed Amended Complaint is futile. Plaintiff does not contend that the substance of the notice provided by Defendant was deficient. Instead, her sole allegation is that addressing the notice to her deceased mother breached the Deed. The Deed required notice to be given to the Borrower and stated "[n]otice to any one Borrower shall constitute notice to all Borrowers." Plaintiffs mother remained listed as a Borrower on the Deed after Plaintiff re-executed it and was listed as a Borrower when ...


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