GLORIA B. LANE
BAYVIEW LOAN SERVICING, LLC, ET AL.
THE CIRCUIT COURT OF MECKLENBURG COUNTY S. Anderson Nelson,
BERNARD GOODWYN, JUSTICE
appeal, we consider whether the circuit court erred when it
sustained a plea in bar which asserted res judicata.
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.
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
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
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."
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.
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."
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.
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.
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."
January 2017 Order concluded by stating "[t]his matter
is ended." Lane did not ...