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Robertson v. U.S. Bank, N.A.

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

January 2, 2020

ROBERT W. ROBERTSON, JR., Pro se Plaintiff,
v.
U.S. BANK, N.A., et al., Defendants.

          MEMORANDUM OPINION

          David J. Novak United States District Judge.

         Plaintiff Robert W. Robertson, Jr. ("Plaintiff), proceeding pro se, brings this action against Defendants U.S. Bank, National Association ("U.S. Bank"), and Trustee Services of Virginia, LLC ("Trustee Services") (collectively, "Defendants"), seeking to enjoin or set aside the foreclosure sale of Plaintiff s home and requesting damages and costs. This matter comes before the Court on Defendants' Motions to Dismiss (ECF Nos. 5, 11), moving to dismiss the claims in Plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court GRANTS Defendants' Motions to Dismiss (ECF Nos. 5, 11) and DISMISSES WITHOUT PREJUDICE all claims by Plaintiff against Defendants.[1]

         I. BACKGROUND

         In resolving a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court will accept Plaintiffs well-pleaded factual allegations as true, though the Court need not accept Plaintiffs legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although Plaintiff now proceeds pro se, because an attorney drafted his Complaint, the Court need not construe the Complaint under less stringent standards. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers" (internal quotations and citations omitted)). Based on these principles, the Court accepts the following facts.

         A. Factual Background

         On October 21, 1996, Plaintiffs grandmother conveyed a parcel of real property located at 1001 Magnolia Street, Petersburg, Virginia 23803 (the "Property") to herself and Plaintiff as joint tenants with a right of survivorship. (Compl. (ECF No. 1-3) ¶¶ 5-6.) Plaintiffs grandmother recorded the conveyance as a deed of gift with the clerk of the Circuit Court for the City of Petersburg. (Compl. ¶ 6.)

         On October 14, 2008, Plaintiffs grandmother obtained a loan secured by the Property from Dover Mortgage Company in the amount of $68, 867.00, which the parties executed with a note (the "Note"). (Compl. ¶¶ 7-8.) The Note is secured by a deed of trust (the "Deed of Trust") recorded with the clerk of the Circuit Court for the City of Petersburg. (Compl. ¶ 9.) Plaintiff and his grandmother are the named grantors and borrowers on the Deed of Trust. (Compl. ¶ 10.) By assignment of the Deed of Trust recorded on October 1, 2014, U.S. Bank became the successor in interest and servicer of the Note and the Deed of Trust. (Compl. ¶¶ 11-12.) Plaintiffs grandmother passed away on July 5, 2016, at which point Plaintiff became the sole owner of the Property and the sole borrower on the Note and the Deed of Trust. (Compl. ¶¶ 13-14.)

         In 2017, Plaintiff fell behind on payments and, in January 2018, U.S. Bank offered Plaintiff the opportunity to assume the loan and gave him a loan modification, which Plaintiff accepted in May 2018. (Compl. ¶¶ 15-17.) In the fall of 2018, Plaintiff again fell behind on payments due to loss of income. (Compl. ¶ 18.) Plaintiff obtained new employment in the spring of 2019, but U.S. Bank refused to accept payments on the Note. (Compl. ¶ 18.) In May 2019, U.S. Bank denied Plaintiffs request for a second loan modification. (Compl. ¶ 18.)

         On May 8, 2019, U.S. Bank appointed Trustee Services as substitute trustee on the Deed of Trust, which the parties recorded in the Circuit Court for the City of Petersburg. (Compl. ¶ 19.) In August 2019, Trustee Services notified Plaintiff that the Property would be sold at foreclosure on September 23, 2019. (Compl. ¶ 20.)

         B. Plaintiffs Complaint

         On September 19, 2019, Plaintiff filed a Complaint through counsel in the Circuit Court for the City of Petersburg. (ECF No. 1.) Based on the above facts, Plaintiff seeks to enjoin or set aside the foreclosure sale of his home for violations of federal regulations. (Compl. ¶¶ 35-51.) Specifically, in Count One, [2] Plaintiff alleges that Defendants violated the implied covenant of good faith and fair dealing in the Note and the Deed of Trust by accelerating the payments on the Note without holding a face-to-face meeting with Plaintiff as required by 24 C.F.R. § 203.604. (Compl. ¶¶ 36-38.)

         In Count Two, Plaintiff alleges that Trustee Services breached its fiduciary duty to Plaintiff under the Deed of Trust by failing to properly verify that U.S. Bank had complied with federal regulations as incorporated by the Note and the Deed of Trust, including the requirement that U.S. Bank hold a face-to-face meeting with Plaintiff before accelerating payments. (Compl. ¶¶ 43-46.) Finally, in Count Three, Plaintiff seeks a declaratory judgment that the foreclosure sale is improper and either void or voidable. (Compl. ¶¶ 49-51.) In addition to declaratory relief, Plaintiff seeks injunctive relief, monetary damages and costs. (Compl. at 9-10.)

         On October 25, 2019, Defendants removed Plaintiffs Complaint to the Alexandria Division. (Notice of Removal (ECF No. 1).) On October 28, 2019, the Clerk transferred the case to this Division pursuant to the Local Rules. On November 7, 2019, Plaintiffs counsel filed a motion to withdraw (ECF No. 8), which the Court granted on November 13, 2019 (ECF No. 14). Plaintiff has not obtained new counsel and now proceeds pro se.

         C. Defendants' ...


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