United States District Court, E.D. Virginia, Richmond Division
THERESA B. ROMAN, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, as TRUSTEE for GSAA HOME EQUITY TRUST 2006-12, ASSET-BACKED CERTIFICATES, SERIES 2006-12, Defendant.
E. Hudson United States District Judge
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.
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.)
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.)
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.
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.)
STANDARD OF REVIEW
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)).
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
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.
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)).
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 ...