United States District Court, E.D. Virginia, Alexandria Division
MERRICK L. DIXON, Plaintiff,
NATIONSTAR MORTGAGE, et al., Defendants.
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is defendants' Nationstar Mortgage
("Nationstar") and Mortgage Electronic Registration
Systems, Inc. ("MERS") Motion to Dismiss [Dkt. No.
17] in which they argue that plaintiffs Complaint should be
dismissed as an impermissible "show-me-the-note"
claim. Pro se plaintiff Merrick L. Dixon
("Dixon") has not responded to defendants'
Motion.Finding that oral argument would not
further the decisional process, the defendants' Motion to
Dismiss will be granted without oral argument for the reasons
Complaint, Dixon alleges that defendants Nationstar and MERS
fraudulently foreclosed on the real property known as 13348
Pelican Road, Woodbridge, Virginia 22193 (the
"Property"). Compl. [Dkt. No. 1]. Specifically, he
alleges that defendants have made a claim against the
Property but have failed to provide proof of said claim, and
he seeks either their withdrawal of all claims against the
Property or production of documentation and witness testimony
to prove their claim. Id. ¶¶ 13-14, 21-23.
Complaint alleges that on April 1, 1993, plaintiff executed a
mortgage promissory note secured by a Deed of Trust, which
named parties other than the defendants as Trustee and named
MERS as beneficiary, and seeks a declaration that the
original party named on the Deed of Trust is the only party
entitled to foreclose upon the Property. Id.
identify a home mortgage loan, evidenced by a promissory note
in the principal amount of $360, 000 and a Deed of Trust
encumbering the Property, obtained on October 30, 2006.
Defs.' Mem. Supp. Mot. Dismiss Pl.'s Compl. [Dkt. No.
18] ("Defs.' Mem.") 2; Exs. A &
The Deed of Trust identifies "NFM, Inc. d/b/a Fidelity
Mortgage Corporation" as the original lender, Ex. A, and
MERS as the original beneficiary. Ex. B.
10, 2011, MERS transferred its interest in the Deed to Aurora
Loan Services LLC, Ex. C, which then transferred its interest
to Nationstar on October 4, 2012. Id. at 3; Ex. D.
On December 17, 2014, Nationstar transferred its interest to
U.S. Bank National Association, as Trustee, Successor in
Interest to Wilmington Trust Company, as Trustee, Successor
in Interest to Bank of America National Association, as
Trustee, Successor by Merger to LaSalle Bank National
Association, as Trustee of Lehman XS Trust Mortgage
Pass-Through Certificates, Series 2006-20. Id; Ex.
failed to make the required mortgage payments and, in 2017,
he began to receive demands for payments and threats of
foreclosure from MERS and a law firm on behalf of Nationstar.
Compl. ¶ 62. The Complaint claims that Nationstar
"allegedly acts as Trustee in the securitization of the
loan pool to which this Property has been allegedly
tied." Id. ¶ 28. Plaintiff was advised
that the Property would be foreclosed upon in December 2017.
Id. ¶ 66. On December 12, 2017, a foreclosure
sale occurred. Defs.' Mem. 3. On May 18, 2018, the
Property was conveyed to Paramount Investments, LLC and the
conveyance was recorded on May 23, 2018. Id. at 3-4;
filed his Complaint on June 4, 2018, seeking $3, 328, 000 in
damages. Compl. ¶ 99. Defendants have moved to dismiss
because, under Virginia's non-judicial foreclosure laws,
they cannot be compelled to produce documentation authorizing
the foreclosure on the Property.
Standard of Review
to Federal Rule of Civil Procedure 12(b)(6), a complaint
should be dismissed if it fails to state a claim upon which
relief can be granted. "To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Pleadings filed by a
prose party must be "liberally construed"
and will not be held to the same standards as those filed by
lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks and citations omitted).
Nevertheless, whether a complaint states a claim on which
relief may be granted is determined by "the familiar
standard for a motion to dismiss under Fed.R.Civ.P.
12(b)(6)." Sumner v. Tucker, 9 F.Supp.2d 641,
642 (E.D. Va. 1998). The Court must "assume that the
facts alleged in the complaint are true and draw all
reasonable inferences in the plaintiffs favor,"
Burbach Broad, Co. of Del, v. Elkins Radio Corp.,
278 F.3d 401, 406 (4th Cir. 2002), but only to the extent
that those allegations pertain to facts rather than to legal
conclusions. Iqbal, 556 U.S. at 678. Plausibility
requires "more than a sheer possibility that a defendant
has acted unlawfully"; instead, the plaintiff must plead
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.
Complaint, construed liberally, states several causes of
action; however, none has merit. Although
defendants make multiple meritorious arguments for dismissal,
only one needs to be considered because it is clear that all
of the issues in the Complaint are based on a theory which
cannot sustain a cause of action in Virginia. The thrust of
plaintiff s Complaint is that defendants must prove their
authority to foreclose on the Property by producing original
documentation. This theory has no merit in Virginia because
"courts have roundly rejected"
"show-me-the-note" claims as "plainly contrary
to Virginia's non-judicial foreclosure laws."
Davis v. White, No. 3:13cv780, 2014 WL 1604270, at
*7-8 (E.D. Va. Apr. 21, 2014) (citing Brown v. HSBC
Mortg. Corp., No. 1:10cv 1427, 2011 WL 3101780, at *2
(E.D. Va. July 22, 2011) and Pham v. Bank of N.Y.,856 F.Supp.2d 804, 810 (E.D. Va. 2012)). Virginia
unequivocally does not require a foreclosing lender or
trustee to prove their authority before foreclosure, see
Webb v. Equifirst Corp., No. 7:15cv00413, 2016 WL
1274618, at *7 (W.D. Va. Mar. 31, 2016), by producing
original documents, as plaintiff is demanding. See Compl.
¶ 21. These claims have been so "widely
rejected" that the Eastern District of Virginia has
questioned how they could be brought in good faith.
Pham, 856 F.Supp.2d at 810, 815. Plaintiffs
allegation that the Note and Deed of Trust are unenforceable
because they have been split has also been rejected by
Virginia courts. See Webb, 2016 WL 1274618, at *7
(citing Horvath v. Bank of N.Y., N.A.,641 F.3d 617,
624 (4th Cir. 2011) (explaining that transferring a note does
not "strip it from the security that gives it
value" because to so hold would "render the note
largely worthless")). Furthermore, as plaintiff is not a
party to the assignments of the Deed of Trust, he lacks
standing to challenge those documents. The Fourth
Circuit has held that a homeowner cannot attack the
assignment of the Deed of Trust because it is not a party to
that assignment or an intended beneficiary. Wolf v. Fed.
Nat'l Mortg. Ass'n,512 Fed.Appx. 336, 432 (4th
Cir. 2013); see also Hardnett v. M&T Bank, 204
F.Supp.3d 851, 858 (E.D. Va. 2016) (finding that homeowner