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Lane v. Bayview Loan Servicing, LLC

Supreme Court of Virginia

August 22, 2019

GLORIA B. LANE
v.
BAYVIEW LOAN SERVICING, LLC, ET AL.

          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY S. Anderson Nelson, Judge

          OPINION

          S. BERNARD GOODWYN, JUSTICE

         In this appeal, we consider whether the circuit court erred when it sustained a plea in bar which asserted res judicata.

         Background

         On March 30, 2007, Gloria B. Lane (Lane) executed a deed of trust (Deed of Trust) on property (Property) located in Chase City, Virginia to secure a note of $52, 397.51 (Note). Bayview Loan Servicing, LLC (Bayview) serviced the loan on behalf of the noteholder.[1]

         Paragraphs 12 and 17 of the Deed of Trust provided that in the event of Lane's default, the noteholder was to notify Lane of the breach and the action required to cure the breach, by certified mail prior to accelerating the Note and foreclosing on the Property. Paragraph 17 also stated that if the noteholder intended to sell the Property, it was to notify Lane of the sale "in the manner prescribed by applicable law."

         On May 10, 2016, Bayview mailed Lane a letter entitled "Notice of Default and Intent to Accelerate" (May Notice). The May Notice stated that the Loan was delinquent by $1, 060, and if this remained unpaid, Bayview would foreclose on the Property.

         On August 9, 2016, Bayview mailed another letter to Lane entitled "Notice of Default and Intent to Accelerate" (August Notice). The August Notice stated the Loan was delinquent by $1, 146, and Bayview would commence foreclosure proceedings if the balance was not paid by September 13, 2016. A note in the top right corner of the August Notice stated: "Sent via Certified Mail."

         On December 12, 2016, BWW Law Group, LLC (BWW) mailed Lane a letter entitled "Notice of Foreclosure Sale" (Foreclosure Notice). The Foreclosure Notice stated that it was sent "on behalf of the party secured by the Deed of Trust" and that the Property would be sold at public auction on January 4, 2017 (Foreclosure Sale), by Equity Trustees, LLC (Equity), the substitute trustee.

         The Foreclosure Notice was accompanied by a copy of an advertisement of the Foreclosure Sale, in which it was stated that BWW was providing legal representation for Equity. The Foreclosure Notice was also accompanied by a document, dated December 2, 2016, that was entitled "Appointment of Substitute Trustee." It stated that Bayview "appoints [Equity] as Substitute Trustee/Grantee."

         On December 30, 2016, Lane filed a petition for injunction, pro se, in the Circuit Court of Mecklenburg County against "Substitute Trustee: BWW Law Group, LLC" (Injunction Action). Lane sought to enjoin the Foreclosure Sale, scheduled for January 4, 2017, alleging that: (1) the Foreclosure Sale was not advertised in the newspaper, (2) she "received a letter of sale on the 27th of December 2016," (3) she did not receive a "certified mail returned receipt," and (4) she did not receive any prior letters notifying her of default.

         On January 3, 2017, the circuit court held a hearing on the Injunction Action, and orally denied the petition for injunction. The Foreclosure Sale occurred, as scheduled, on January 4, 2017.

         On January 10, 2017, the circuit court entered its order denying the injunction (January 2017 Order). The January 2017 Order noted that the court held a hearing on the petition on January 3, 2017, at which Lane and BWW were present. Upon Lane's testimony, "the written evidence submitted by the Parties, and the arguments of [Lane] and counsel for [BWW]," the court found the following:

1. Equity is the substitute trustee who is scheduled to conduct the Foreclosure Sale. "Because [Lane] has failed to name [Equity] as a party to this action, injunctive relief is not warranted in this matter."
2. Equity published notice of the Foreclosure Sale on "December 14, 2016 and December 21, 2016, in the South Hill Enterprise in compliance with [Code § 55-59.2] and with the requirements for advertisement of sale contained in the Deed of Trust."
3. Equity notified Lane of the Foreclosure Sale in accordance with Code § 55-59.1.
4. Bayview sent Lane "a pre-acceleration notice in compliance with Paragraph 17 of the Deed of Trust."
5. "Because there is no likelihood that the allegations contained in Plaintiff's Petition will sustain a legal claim against [BWW] or [Equity], it is not appropriate to enter an injunction in this matter."

         The January 2017 Order concluded by stating "[t]his matter is ended." Lane did not ...


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