Calderon et al v. Aurora Loan Services, Inc. et al

Filing 16

MEMORANDUM OPINION re 13 MOTION to Alter Judgment to release Lis Pendens by Atlantic Law Group, LLC,, Aurora Loan Services, Inc., Mortgage Electronic Registration Systems, Inc. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 7/13/11. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

JOEL D. CALDERON, et al.,
Plaintiffs,
v.
AURORA LOAN SERVICES,
INC., et al.,
Defendants.

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1:10cv129 (JCC/IDD)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on the defendants
Aurora Loan Services, Inc. (“Aurora”), Mortgage Electronic
Registration Systems, Inc., and Atlantic Law Group, LLC’s
(collectively, the “Defendants”)1 Motion to Supplement the Final
Order to the Include Release of the Lis Pendens (the “Motion”).
[Dkt. 13.]

For the following reasons, the Court will grant

Defendants’ Motion.

1

There are also five non-moving defendants in this case. Defendant Kamaran
Hanif is the President of defendant Buckingham Mortgage Corp. (“Buckingham”),
which has a principal place of business at 1593 Spring Hill Road, Suite 300,
Vienna, Virginia 22182. (Complaint (“Compl.”) ¶ 7.) Defendant Rasim S.
Tugberk is the Vice-President of Buckingham. (Compl. ¶ 8.) Buckingham is a
Virginia corporation with a charter that was revoked on August 31, 2007,
having a principal place of business at 1593 Spring Hill Road, Suite 300,
Vienna, Virginia 22182. (Compl. ¶ 6.) Defendant Ikon Realty, Inc. (“Ikon”)
is a Virginia corporation having a principal place of business at 5709
Windsor Gate Lane, Fairfax, Virginia 22030. (Compl. ¶ 9.) Defendant
Harshall Aharya is a Virginia licensed real estate agent working with Ikon at
all relevant times. (Compl. ¶ 10.)

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I.

Background

The facts of this case are familiar to the Court and
are recounted in detail in this Court’s June 3, 2010 Memorandum
Opinion (the “Opinion”).

[Dkt. 4.]

This case arises out of the

June 29, 2005 refinancing of the mortgage on a residential
property located at 2022 Cumberland Drive, Woodbridge, Virginia
22191 (the “Woodbridge Property”) in connection with Plaintiffs’
purchase of a second residential property located at 71 Tracey
Lane, Fredericksburg, Virginia 22406 (the “Fredericksburg
Property”).

(Compl. ¶¶ 18-19, 22.)

On December 28, 2009, Plaintiffs filed a 10-count
Complaint in the Circuit Court for Prince William County,
Virginia.

[Dkt. 1, Ex. A.]

Plaintiffs’ Complaint alleged

certain wrongdoings arising out of the refinancing of the
Woodbridge Property and the subsequent purchase of the
Fredericksburg Property.

(Compl. ¶¶ 39-120.)

In connection

with their Complaint, Plaintiffs recorded a lis pendens in the
Prince William County land records, Instrument Number
200912280121838, dated December 28, 2009 (the “lis pendens”).
(Memorandum in Support of the Motion [Dkt. 13-1] (“Mem.”) at 1;
Mem. Ex. A [Dkt. 13-2].)
On February 16, 2010, Aurora removed the case to this
Court.

[Dkt. 1.]

On February 23, 2010, Defendants filed a

motion to dismiss Counts One through Nine of the Complaint

2

pursuant to Federal Rule of Civil Procedure 12(b)(6) and to add
certain necessary parties as defendants for purposes of Count 10
pursuant to Rule 12(b)(7), [Dkt. 2], which this Court granted on
June 3, 2010 (the “June 3 Order”), [Dkt. 5].
Plaintiffs failed to comply with or otherwise respond
to the June 3 Order, so on January 19, 2011, this Court
dismissed Plaintiffs’ Complaint for failure to prosecute
pursuant to Federal Rule of Civil Procedure 41(b).

[Dkt. 11.]

The Court did so without prejudice and permitted Plaintiffs to
file a brief showing cause as to why the Court should not
dismiss with prejudice.

[Dkt. 11.]

Because Plaintiffs failed

to file any brief, this Court dismissed Plaintiffs’ Complaint
with prejudice on February 4, 2011, as to all defendants named
in this case.

[Dkt. 12.]

The Court’s January and February 2011 orders did not
address the lis pendens.
filed the Motion.
the Motion.

Thus, on June 14, 2011, Defendants

[Dkt. 13.]

Plaintiffs have not responded to

Defendants’ Motion is before the Court.
II.

Standard of Review

Federal Rule of Procedure 60(a) states that “[t]he
court may correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a judgment,
order, or other part of the record.”

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III.

Analysis

Defendants move this Court to “correct[]” its
“omission”2 of language releasing the lis pendens from its Order
dismissing this case because the necessary implication of the
Court’s disposition of this case is that the lis pendens should
be removed.

(Mem. at 2-3.)

As this Court stated in its June 3, 2010 Memorandum
Opinion, jurisdiction is proper in this case based on diversity
of citizenship under 28 U.S.C. § 1332.

[Dkt. 4 at 8.]

Virginia

state law governs diversity disputes relating to real property
located in Virginia.

Lee v. Zom Clarendon, L.P., 689 F. Supp.

2d 814, 819 (E.D. Va. 2010.)

Virginia Code § 8.01-269 states

that when a case giving rise to a lis pendens
is dismissed, or judgment or final decree in such
attachment or cause is for the defendant or
defendants, the court shall direct in its order
(i) that the names of all interested parties
thereto, as found in the recorded attachment or
lis pendens be listed for the clerk, and (ii)
that the attachment or lis pendens be released.
(emphasis added).

Here, as this case was dismissed,3 Virginia

Code § 8.01-269 provides that the Court’s order dismissing the
case “shall” direct “that the . . . lis pendens be released.”
2

Though Defendants cast this “omission” as an error on the Court’s part,
Defendants have not previously asked this Court to release the lis pendens,
nor did Defendant notify the Court of the existence of the lis pendens.
Indeed, a review of the case’s docket reveals no lis pendens or mention of it
until the Motion. Moreover, the Court notes that though this case was
dismissed with prejudice on February 4, 2011, Defendants did not file the
Motion until June 14, 2011, over four months later. Nonetheless, the Court
did not address the lis pendens’s fate when it dismissed this case.
3
Cases dismissed with prejudice are normally considered to be decisions on
the merits. See Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530,
534-35 (4th Cir. 1991).

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Id.

Given Virginia Code § 8.01-269, the failure to order the

release of the lis pendens was “a mistake arising from oversight
or omission.”

Fed. R. Civ. P. 60(a).

Thus, the Court will

supplement its prior order dismissing this case with an order
releasing the lis pendens, as directed by Virginia Code § 8.01269.
IV.

Conclusion

For these reasons, the Court will grant Defendants’
Motion.
An appropriate Order will issue.

July 13, 2011
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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