Anthony Jones v. Fulton Bank, N.A.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00126-JRS. Copies to all parties and the district court/agency. [999332896].. [13-2034]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2034
ANTHONY L. JONES; CHERYSE D. GLENN JONES,
Plaintiffs - Appellants,
v.
FULTON BANK, N.A.,
Defendant – Appellee,
and
SAMUEL I. WHITE, P.C.,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, District
Judge. (3:13-cv-00126-JRS)
Submitted:
March 28, 2014
Decided:
April 9, 2014
Before SHEDD, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry W. McLaughlin, III, LAW OFFICE OF HENRY MCLAUGHLIN, P.C.,
Richmond, Virginia, for Appellants.
Brendan D. O’Toole,
WILLIAMS MULLEN, Richmond, Virginia; William L. Stauffer, Jr.,
WILLIAMS MULLEN, Newport News, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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Anthony
L.
Cheryse
appeal
the
PER CURIAM:
Joneses”)
Bank,
National
Jones
and
district
Association’s
court’s
D.
Glenn-Jones
order
(“Defendant”)
granting
motion
to
(“the
Fulton
dismiss
their action for damages and to quiet title based on Defendant’s
alleged breaches of the deed of trust securing their mortgage
loan.
Finding no error, we affirm.
We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
Sec’y of State for Defence v. Trimble Navigation,
Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
“[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of
the
factual
allegations
contained
in
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
the
complaint.”
However, “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
555 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544,
The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.”
“A
deed
Virginia law.”
(Va. 2012).
“(1)
a
trust
is
construed
as
a
contract
under
Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 200
The elements of breach of contract in Virginia are:
legally
plaintiff;
of
Id. at 570.
(2)
enforceable
the
obligation
defendant’s
of
violation
a
or
defendant
breach
of
to
a
that
obligation; and (3) injury or damage to the plaintiff caused by
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the breach of obligation.”
Pg: 4 of 6
Filak v. George, 594 S.E.2d 610, 614
(Va. 2004).
The Joneses first argue that the district court erred
in
dismissing
their
breach
of
contract
claim
based
on
Defendant’s failure to send a proper thirty-day pre-acceleration
notice.
While a deficient pre-acceleration notice constitutes a
breach of contract, see Bayview Loan Servicing, LLC v. Simmons,
654 S.E.2d 898, 901 (Va. 2008), a plaintiff must still plead
damages due to that breach.
Filak, 594 S.E.2d at 614.
The
district court’s dismissal of this claim hinged on its finding
that
the
Joneses
did
not
sufficiently
Defendant’s alleged breach.
argument
on
whether
plead
damages
due
to
On appeal, the Joneses focus their
Defendant’s
allegedly
deficient
pre-
acceleration notice constitutes a breach but they do not dispute
the district court’s finding on the damages element.
Thus, we
affirm the district court’s dismissal of this breach of contract
claim.
See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (concluding that issues not raised in opening
brief are deemed abandoned).
The Joneses next argue that the district court erred
in dismissing their second breach of contract claim, in which
they
claimed
improperly
that
Defendant
appointing
Samuel
breached
I.
the
White,
deed
P.C.
of
trust
by
(“White”)
as
substitute trustee and instructing him to commence foreclosure
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proceedings.
The district court found that the Joneses lacked
standing
dispute
to
Defendant’s
appointment
of
White
as
substitute trustee.
On appeal, the Joneses simply contend that
they
to
have
standing
challenge
the
appointment
because
the
foreclosure sale did not comply with the deed of trust.
They do
not,
in
however,
argue
that
the
district
court
erred
its
analysis of the causation and redressability elements of the
test for standing.
See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (stating elements of standing).
We therefore
affirm the district court’s dismissal of this breach of contract
claim.
See Edwards, 178 F.3d at 241 n.6.
Next,
the
Joneses
dispute
the
district
court’s
dismissal of their third claim, breach of the implied covenant
of good faith and fair dealing under the Uniform Commercial Code
(“UCC”), as adopted by Virginia, which they based on Defendant’s
alleged
breaches
of
contract
discussed
supra.
The
claim fails as a matter of law for two reasons.
does
not
apply
to
transfers
of
real
Joneses’
First, the UCC
property.
Greenwood
Assocs., Inc. v. Crestar Bank, 448 S.E.2d 399, 402 (Va. 1994).
Second, even if the deed of trust falls under the UCC as the
Joneses
argue,
their
separate tort claim.
claim
fails
because
it
was
pled
as
a
See Charles E. Brauer Co. v. NationsBank
of Va. N.A., 466 S.E.2d 382, 385 (Va. 1996) (holding that “the
failure
to
act
in
good
faith
.
5
.
.
does
not
amount
to
an
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independent tort.
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The breach of the implied duty under the UCC
gives rise only to a cause of action for breach of contract.”).
Finally, the Joneses contend that the district court
erred in finding that they were required to pay off the deed of
trust before bringing an action to quiet title.
To assert a
claim for quiet title, the plaintiff must allege that he has
satisfied his legal obligations to the party in interest and,
thus, maintains a superior interest in the property.
Tapia v.
U.S. Bank, N.A., 718 F. Supp.2d 689, 700 (E.D. Va. 2010), aff’d,
441 F. App’x 166 (4th Cir. 2010) (No. 10-1856).
The Joneses
have not alleged that they have satisfied their obligations;
thus, their quiet title action must fail.
Accordingly, we affirm the district court’s judgment.
We
dispense
contentions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
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