United States District Court, E.D. Virginia, Norfolk Division
STERLING L. JENNINGS, et al., Plaintiffs,
ROUNDPOINT MORTGAGE SERVICING CORPORATION, et al., Defendants.
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH UNITED STATES DISTRICT JUDGE
matter comes before the court on the Defendant Equity
Trustees, LLC's ("Equity Trustees'') Motion
for Summary Judgment ("Motion") and accompanying
Memorandum in Support, filed on January 18, 2019. ECF Nos.
80, 81. Plaintiffs Sterling L. Jennings and Deirdre D.
Jennings, who are represented by counsel, did not file a
response to Equity Trustees' Motion. For the reasons
below, Equity Trustees' Motion is
August 11, 2017, Defendant RoundPoint Mortgage Servicing
Corporation ("RoundPoint Mortgage") removed this
case from the Circuit Court for the City of Suffolk. ECF No.
1. In their Complaint, Plaintiffs claim that Defendant Equity
Trustees breached its Deed of Trust with Plaintiffs when
Equity Trustees completed a foreclosure sale of
Plaintiffs' property. Compl. ¶¶ 30-32, 56.
Plaintiffs also make claims against Defendant RoundPoint
Mortgage regarding their foreclosure sale. Id.,
¶¶ 26, 38, 52. Plaintiffs claim they are entitled
to rescission of the foreclosure sale. Id. ¶
parties engaged in discovery on Plaintiffs' claims, which
concluded on August 14, 2018. ECF No. 22. On August 31, 2018,
RoundPoint Mortgage filed a Motion for Summary Judgment, ECF
No. 42, which this court granted On November 13, 2018. ECF
No. 70. The Clerk entered judgment in favor of RoundPoint
Mortgage based on this court's summary judgment Order.
ECF No. 72. On December 12, 2018, Plaintiffs filed a Notice
of Appeal of this court's Order granting summary judgment
to RoundPoint Mortgage. ECF No. 74. On January 18, 2019,
Equity Trustees filed the instant Motion. ECF No. 80.
Plaintiffs did not file a response within the fourteen (14)
days provided by Local Civil Rule 7 of the Local Rules for
the United States District Court for the Eastern District of
Virginia, or at any time thereafter. Equity Trustees'
Motion is now ripe for review.
initial matter, this court has jurisdiction to consider
Defendant Equity Trustees' Motion, even though Plaintiffs
have filed a Notice of Appeal on the summary judgment entered
in favor of Defendant RoundPoint Mortgage. A district court
retains jurisdiction over a case until such time as a final
decision is made, disposing of all issues and parties in the
case, unless an appropriate interlocutory appeal is filed.
E.g., Keena v. Groupon, Inc., 886 F.3d 360,
362-63 (4th Cir. 2018) (outlining the circumstances in which
an appellate court may acquire jurisdiction over a case);
see 28 U.S.C. § 1291 (courts of appeals
''shall have jurisdiction of appeals from all final
decisions of the district courts of the United States . . .
this court retains jurisdiction because Plaintiffs'
Notice of Appeal was premature. See Ruby v. Sec'y of
the U.S. Navy, 365 F.2d 385, 389 (9th Cir. 1966)
cert, denied, 386 U.S. 1011 (1967), cited with
approval in Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982) (appeal from an unappealable order does
not divest the district court of jurisdiction over the case).
Plaintiffs' Notice of Appeal was not taken from a final
decision in the case, as required under 28 U.S.C. §
1291. To be a "final decision" pursuant to 28
U.S.C. § 1291(a), the court's order must "be
final not only as to all the parties, but as to the whole
subject-matter and as to all the causes of action
involved." Andrews v. United States, 252 U.S.
334, 340 (1963). This court's November 13, 2018 Order
granting summary judgment to RoundPoint Mortgage did not
address Plaintiffs' pending claims against Equity
Trustees, the other Defendant in this case, and thereby was
not a final decision in the case.
Plaintiffs' Notice of Appeal also does not meet any of
the conditions for an interlocutory appeal. Interlocutory
appeals, in which an appeal is permitted prior to the entry
of a final order in the case, are allowed only in narrow,
enumerated circumstances, such as when the court issues an
order regarding an injunction, the appointment of a receiver,
or the rights and liabilities of parties to an admiralty
case. See 28 U.S.C. § 1292 (a) (1)- (3) . Here,
Plaintiffs' appeal as to the summary judgment in favor of
RoundPoint Mortgage does not fit into one of the narrow
categories where an interlocutory appeal is appropriate, and
the court will proceed to consider Equity Trustees'
Motion, which is now ripe for review.
following facts here are taken from Equity Trustees'
Memorandum in Support of its Motion. ECF No. 81. When a party
fails to respond to a motion for summary judgment, it
"leave[s] uncontroverted those facts established by the
motion." Custer v. Pan Am. Life Ins. Co., 12
F.3d 410, 416 (4th Cir. 1993); see Fed.R.Civ.P. 56(c)(1);
E.D. Va. Local Civ. R. 56(B) ("In determining a motion
for summary judgment, the Court may assume that facts
identified by the moving party in its listing of material
facts are admitted, unless such a fact is controverted in the
statements of genuine issues filed in opposition to the
motion."). In its Memorandum in Support, Equity Trustees
set forth undisputed material facts in this case, and cited
to the record in support of each of its factual contentions.
ECF No. 81 at 2-3. Because Plaintiffs have failed to respond
to Equity Trustees' Motion, Equity Trustees' factual
assertions are accepted as uncontroverted for the purposes of
this Motion. See Custer, 12 F.3d at 416;
Fed.R.Civ.P. 56(c)(1); E.D. Va. Local Civ. R. 56(B).
10, 2015, Plaintiffs obtained a loan from Movemement
Mortgage, LLC, which was insured by the Federal Housing
Administration. ECF No. 81 at 2. Plaintiffs executed a Note
and Deed of Trust securing the loan with the subject
property, 408 Quaker Ridge Court, Suffolk, Virginia 23435.
Id. Servicing of the loan transferred to RoundPoint
Mortgage on August 1, 2015, and the rights and interest in
the Deed of Trust were assigned to RoundPoint Mortgage on
March 1, 2017. Id. After August 30, 2016, Plaintiffs
stopped making monthly mortgage payments. Id.
December 1, 2016, RoundPoint Mortgage sent Plaintiffs a
letter, stating "[t]he Federal Housing Administration
(FHA) requires mortgage servicers to attempt to schedule a
face-to-face meeting with Customers with past due accounts to
discuss possible repayment options." Id. The
letter further stated:
If we do not hear from you, then we may send a representative
to the property address listed above in an attempt to contact
you. Please contact us within 14 calendar days of this letter
to schedule the face-to-face meeting or to notify us that you