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Jennings v. RoundPoint Mortgage Servicing Corp.

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

March 18, 2019

STERLING L. JENNINGS, et al., Plaintiffs,



         This 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 GRANTED.


         On 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. ¶ 53.

         The 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.


         As an 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 . . . .").

         Here, 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.

         Moreover, 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.


         The 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).

         On June 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.

         On 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 ...

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