Pena et al v. HSBC Bank USA et al
Filing
26
MEMORANDUM OPINION in re 15 MOTION to Dismiss. Signed by District Judge James C. Cacheris on 11/04/2014. (jlan)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SOSTENES PENA and
YOLANDA PENA,
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
HSBC BANK USA and
SURETY TRUSTEES, LLC,
Defendants.
M E M O R A N D U M
1:14CV1018 (JCC/JFA)
O P I N I O N
This matter is before the Court on Defendant HSBC Bank
USA’s (“HSBC”) Motion to Dismiss the Amended Complaint.1
15]
[Dkt.
For the reasons set forth below, the Court will grant the
motion.
I. Background
In considering a motion to dismiss for failure to
state a claim, as is the case here, “a court accepts all wellpled facts as true and construes these facts in the light most
favorable to the plaintiff[.]”
Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009)
(citations omitted).
Accordingly, the following facts, taken
from the Amended Complaint, [Dkt. 13], are accepted as true for
1
Defendant Surety Trustees, LLC (“Surety”) also filed a motion to dismiss the
amended complaint [Dkt. 18], but the Court entered an agreed order that
rendered Surety’s motion moot and treated it as a nominal defendant. [Dkt.
24]
1
purposes of this motion.
See Erickson v. Pardus, 551 U.S. 89,
94 (2007).
This action arises from a residential mortgage
foreclosure.
On February 5, 2007, Plaintiffs Sostenes Pena and
Yolanda Pena (“Plaintiffs”) obtained a mortgage loan for
property located in Loudoun County, Virginia.
6-7.)
The loan was evidenced by a note (“Note”) and secured by
a deed of trust (“Deed of Trust”).
1].)
(Am. Compl. ¶¶ 1,
(Id. at ¶ 7, Ex. A [Dkt. 13-
The Note identifies Indymac Federal Bank (“Indymac”) as
the lender and defines the “Note Holder” as “anyone who takes
this Note by transfer and who is entitled to receive payments
under the Note.”
Ex. A at 1.)
(Id. at ¶ 7; Def.’s Mem. in Supp. [Dkt. 19]
The Deed of Trust also names Indymac as the lender
and Mortgage Electronic Registration Systems, Inc. (“MERS”) as
the beneficiary.
(Am. Compl. Ex. A at 1-2.)
The Deed of Trust
provides that MERS “is a separate corporation that is acting
solely as a nominee for Lender and Lender’s successors and
assigns.”
(Id.)
The Deed of Trust also states that
MERS holds only legal title to the interests
granted
by
Borrower
in
this
Security
Instrument, but, if necessary to comply with
law or custom, MERS (as nominee for Lender
and Lender’s successors and assigns) has the
right: to exercise any or all of those
interests, including, but not limited to,
the
right
to
foreclose
and
sell
the
Property; and to take any action required of
Lender
including,
but
not
limited
to,
releasing
and
canceling
this
Security
2
Instrument.
(Id.)
On July 27, 2010, MERS, acting as nominee for the
lender, assigned the Deed of Trust to a mortgage trust
controlled by HSBC.
(Am. Compl. ¶ 36.)
On July 29, 2010 and
June 11, 2013, MERS executed two additional assignments that
also purported to assign the Deed of Trust and Note to HSBC.
(Id. at ¶¶ 37-38.)
At some point following the assignments described
above, Plaintiffs defaulted on the Note.
Plaintiffs were unable
to “work something out with [their] servicer” and HSBC, after
appointing Surety as a substitute trustee under the Deed of
Trust, initiated foreclosure proceedings.
12, 24.)
(Am. Compl. ¶¶ 11,
Surety, through the law firm of McCabe, Weisberg &
Conway, conducted a foreclosure sale on November 29, 2013, and
HSBC obtained title to the property.
(Id. at ¶ 13.)
HSBC has
since filed an unlawful detainer action Loudon County General
District Court seeking to evict Plaintiffs.
(Id. at ¶ 19.)
Plaintiffs initially filed this action in Loudoun
County Circuit Court.
Defendant removed the case to this Court
shortly after service on August 8, 2014.
[Dkt. 1].)
(Notice of Removal
Shortly thereafter, HSBC filed a motion to dismiss
the complaint, [Dkt. 3], which was rendered moot when Plaintiffs
filed an Amended Complaint as a matter of right under Rule 15 of
3
the Federal Rules of Civil Procedure.
[Dkt. 14]
Plaintiffs’
Amended Complaint contains four counts.
Count I, labeled Rescission of Foreclosure Sale, asks
the Court to “enter an Order rescinding the foreclosure sale as
having been conducted in violation of the terms of the trust
document and without having satisfied all conditions precedent
therein.”
(Am. Compl. ¶ 51.)
As grounds for this relief,
Plaintiffs allege that HSBC “violated the terms of the Deed of
Trust, as it failed to strictly comply with the terms of the
trust document, made material misrepresentations in the
documents appointing SURETY and the Assignments, and proceeded
to foreclose on the Property when it was fully aware of the fact
it had no authority to so act.”
(Id. at ¶ 49.)
In Count II, Plaintiffs request “an order from this
Court directing the land records clerk of the county in which
the property lies to strike/remove the appointment of substitute
trustee documents, the Assignments, and Trustees’ Deed from the
land records.”
(Am. Compl. ¶ 62.)
According to Plaintiffs,
“[HSBC] had no authority to appoint Defendant SURETY as
substitute trustee, and [HSBC] had no authority to direct Surety
to advertise the property for foreclosure or to effectuate the
foreclosure on Plaintiffs home, and therefore had no authority
to record [such documents] among the land [records].”
56.)
4
(Id. at ¶
In Count III, Plaintiffs seek “compensatory and
punitive damages” for the “preparation, execution, and recording
of the false documents among the land records” discussed above.
(Am. Compl. ¶ 69.)
Plaintiffs aver that HSBC “caused the[se]
documents to be recorded in the public record . . . with
knowledge that the filing was untimely, and unjustified because
[HSBC] knew that it did not have a lawful authority to call a
default, accelerate the debt, appoint a substitute trustee,
invoke the power of sale, and to direct Surety to sell the
Property and record the Trustees’ Deed.”
(Id. at ¶ 68.)
Lastly, in Count IV, Plaintiffs allege HSBC breached
the Deed of Trust by not satisfying conditions precedent prior
to initiating foreclose proceedings.
(Am. Compl. ¶¶ 71-72.)
Plaintiffs ask the Court to find this material breach “meant the
remedy of foreclosure did not accrue, [and] thus the substitute
trustee had no authority to auction/foreclose the Property, and
no title passed to [HSBC] . . . .”
(Id. at ¶ 72.)
Plaintiffs
again ask the Court to “enter an Order rescinding the sale and
striking the Trustees’ Deed.”
(Id.)
In the motion to dismiss the amended complaint, HSBC
argues that Plaintiffs’ claims are barred by the doctrine of res
judicata because of Plaintiffs’ prior litigation in the United
States Bankruptcy Court for the Eastern District of Virginia.
(Def.’s Mem. at 5-8.)
According to HSBC, “[i]n the Bankruptcy
5
Action, the court fully and finally disposed of the matter and
issued Plaintiffs a discharge.
The same issue — HSBC’s rights
pursuant to the Note and Deed of Trust — was at issue in the
Bankruptcy Action.
Having previously conceded HSBC’s right to
enforce the Note and Deed of Trust in prior litigation,
Plaintiffs now are [improperly] attempting to re-litigate
the[se] issue[s] in this Court.”
(Id. at 6.)
In the
alternative, Defendant contends that Plaintiffs have failed
state a valid claim as to any of the four above mentioned
counts.
(Id. at 12-21.)
Having been fully briefed and argued, Defendant’s motion
is ripe for adjudication.
II. Standard of Review
“A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”
Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).
The
Supreme Court has stated that in order “[t]o survive a motion to
dismiss, a [c]omplaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the pleaded factual
6
content allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id.
“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.”
Iqbal, 556 U.S. at 679 (citations omitted).
While legal conclusions can provide the framework for a
complaint, all claims must be supported by factual allegations.
Id.
Based upon these allegations, the court must determine
whether the plaintiff’s pleadings plausibly give rise to an
entitlement to relief.
Id.
Legal conclusions couched as
factual allegations are not sufficient, Twombly, 550 U.S. at
555, nor are “unwarranted inferences, unreasonable conclusions,
or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship,
213 F.3d 175, 180 (4th Cir. 2000).
The plaintiff, however, does
not have to show a likelihood of success; rather, the complaint
must merely allege – directly or indirectly – each element of a
“viable legal theory.”
Twombly, 550 U.S. at 562-63.
At the motion to dismiss stage, the court must
construe the complaint in the light most favorable to the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.
Iqbal, 556 U.S. at 678.
Generally, a
district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6).
7
It may, however,
consider “documents incorporated into the complaint by
reference.”
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007); see also Blankenship v. Manchin, 471 F.3d
523, 526 n.1 (4th Cir. 2006).
In addition, the court may
consider documents attached to the defendant’s motion to dismiss
if those documents are central to the plaintiff’s claim or are
“sufficiently referred to in the complaint,” so long as the
plaintiff does not challenge their authenticity.
Witthohn v.
Fed. Ins. Co., 164 F. App’x 395, 396–97 (4th Cir. 2006).
III. Analysis
A. Res Judicata
HSBC first argues that Plaintiffs’ claims are barred
by the doctrine of res judicata on account of a prior bankruptcy
order.
(Def.’s Mem. at 5.)
On August 20, 2010, Plaintiffs
filed for relief under Chapter Seven of the Bankruptcy Code.
See In re Sostenes V. Pena & Yolanda R. Pena, No. 10-17039-SSM
(Bankr. E.D. Va.).
The filing activated the automatic stay
provision of 11 U.S.C. § 362, which prevents prior creditors
from collecting debts, even when it has a security interest in
the debtor’s property.
Under certain circumstances, however,
the bankruptcy court may provide relief from the automatic stay.
See 11 U.S.C. § 362(d).
The bankruptcy court may lift the stay
if there is good cause, such as if the creditor’s interest is
not adequately protected, or if the debtor has no equity in the
8
collateral and the collateral is not necessary for effective
reorganization.
Id.
On September 15, 2010, HSBC moved for relief from the
automatic stay, acknowledging that it was the party secured by
the Deed of Trust.
(Def.’s Mem. at 6.)
Plaintiffs did not
oppose the motion, and the court granted HSBC’s requested relief
on September 24, 2010.
(Id.)
HSBC submits that the bankruptcy
court’s order is preclusive of the instant claims.
(Id.)
Our sister district recently addressed this same
argument on nearly identical facts.
See Canterbury v. J.P.
Morgan Mortg. Acquisition Corp., No. 3:10–cv–54, 2010 WL
5314543, at *1-3 (W.D. Va. Dec. 20, 2010).
In Canterbury,
plaintiff brought suit against defendant contesting the
foreclosure of his home.
Id. at *1.
Plaintiff claimed
defendant “was not the holder of the note” and therefore “was
not entitled to foreclose on the property[.]”
Id.
Defendant
moved to dismiss on grounds that a prior order from the
bankruptcy court lifting the automatic stay and permitting
defendant to move forward with the foreclosure was preclusive.
Id. at *2.
Judge Moon declined to adopt defendant’s position,
noting that “[c]ourts are reluctant to find that a proceeding
pursuant to Section 362 provides a basis for res judicata.”
Judge Moon went on to hold:
Defendant’s
motion
in
9
the
instant
case
Id.
cannot be granted on the basis of a strict
application
of
res
judicata
doctrine.
Plaintiff’s failure to file a responsive
pleading in the lift stay proceedings was at
most an admission that [defendant] had a
colorable
claim
to
the
Gordonsville
property.
See Grella, 42 F.3d at 32.
Res
judicata does not apply because “the merits
of claims [were] not in issue.”
County
Fuel, 832 F.2d at 293.
Accordingly, the
first prong of the res judicata test has not
been satisfied. See Beverley, 404 F.3d at
248.
Id. at *3.
The facts of this case are indistinguishable from
those presented in Canterbury, and under the same rationale
expressed by Judge Moon, the Court finds the doctrine of res
judicata inapplicable.
summary affair.
A lift stay proceeding is a quick,
Estate Constr. Co. v. Miller & Smith Holding
Co., 14 F.3d 213, 219 (4th Cir. 1994); Grella v. Salem Five Cent
Savs. Bank, 42 F.3d 26, 31 (1st Cir. 1994).
It does not
“involve full adjudication on the merits of claims, defenses, or
counterclaims, but simply a determination as to whether a
creditor has a colorable claim to property of the estate.”
Grella, 42 F.3d at 32 (citations omitted).
Moreover, “[r]elief
from the stay is obtained by a simple motion . . . and it is a
‘contested matter,’ rather than an adversary proceeding.”
at 33 (citations omitted).
Id.
The issues considered in a lift stay
proceeding are limited strictly to adequacy of protection,
equity, and necessity to an effective reorganization.
10
Id. at
32.
As such, res judicata is unfitting from an order pursuant
to § 362 on the facts presented here.
HSBC’s alternative argument that res judicata bars
this action because the Loudoun County General District Court
entered a final judgment in its favor in the unlawful detainer
proceeding is similarly unpersuasive.
(Def.’s Mem. at 7-8.)
HSBC has provided no transcript from these proceedings or a
final order from the general district court setting forth its
findings and conclusions of law.
Given Plaintiffs have pled
multiple theories and the ruling from the general district court
remains an enigma, the Court finds res judicata unfitting.
See
In re Banks Auto Parts, Inc., 385 B.R. 142, 148 (Bankr. E.D. Va.
2008).
In any event, the Court has serious doubts as to the
applicability of this doctrine on such grounds since the general
district court possesses limited jurisdiction and was likely
unable to adjudicate Plaintiffs’ instant claims.
See Fed. Nat’l
Mortg. Ass’n v. Davis, 963 F. Supp. 2d 532, 536 n.5 (E.D. Va.
2013) (“The law is somewhat unsettled on whether or not the
validity of title can be challenged as a defense in an unlawful
detainer action.”) (citations omitted); Davis v. Samuel I.
White, P.C., No. 3:13CV780, 2014 WL 1604270, at *4 (E.D. Va.
Apr. 21, 2014) (concluding that general district court’s
judgment in unlawful detainer action did not have preclusive
effect in subsequent foreclosure case after defendant admitted
11
the general district court “lacked jurisdiction to try title”).
Having determined that res judicata does not operate
as a preclusive bar, the Court will turn to the sufficiency of
Plaintiffs’ factual allegations.
B. Count I
Under Count I, Plaintiffs ask the Court to rescind the
foreclosure sale “as having been conducted in violation of the
terms of the trust document and without having satisfied all
conditions precedent therein[.]”
(Am. Compl. ¶ 51.)
Plaintiffs
present several arguments in support of this claim, none of
which survive even the slightest scrutiny.
Plaintiffs first argue that HSBC lacked authority to
foreclose because it was “not the Lender, nor the successor in
interest to the Lender[.]”
(Am. Compl. ¶ 26.)
According to
Plaintiffs, HSBC “claims authority to enforce the Deed of Trust
from three ‘assignments’ . . . all of which contain false
statements and are void on their face.”
(Id. at ¶ 30.)
Plaintiffs, however, lack standing to contest the assignments at
issue along with HSBC’s purported authority gained therefrom.
Virginia courts routinely dismiss such challenges on the basis
of lack of standing because the complainant was not a party to
or intended beneficiary of the challenged document.
See Wolf v.
Fed. Nat’l Mortg. Ass’n, 830 F. Supp. 2d 153, 161 (W.D. Va.
2011) (concluding that plaintiff had no standing to challenge
12
the assignment of a deed of trust, because “[a]bsent an
enforceable contract right, a party lacks standing to challenge
the validity of the contract”), aff’d, 512 F. App’x 336 (4th
Cir. 2013); Figueroa v. Deutsche Bank Nat’l Trust Co., No.
1:13cv592, at *3-4 (E.D. Va. July 10, 2013) (holding plaintiff
had no standing to allege that the assignment of the note and
deed of trust violated a pooling or service agreement or any
other contract because she could not show she was a party to, or
third-party beneficiary, of any such agreement), aff’d, 548 F.
App’x 85 (4th Cir. 2013).
Moreover, even if Plaintiffs maintained standing to
contest the assignments, their arguments have been continually
considered and rejected in this circuit.
See Horvath v. Bank of
N.Y., N.A., 641 F.3d 617, 625 (4th Cir. 2011); Tapia v. U.S.
Bank, N.A., 718 F. Supp. 2d 689, 701 (E.D. Va. 2010), aff’d, 441
F. App’x 166 (4th Cir. 2011); Sheppard v. BAC Home Loans
Servicing, LP, No. 3:11–cv–00062, 2012 WL 204288, at *4-8 (W.D.
Va. Jan. 24, 2012); Larota-Florez v. Goldman Sachs Mortg. Co.,
719 F. Supp. 2d 636, 639-42 (E.D. Va. 2010); see also Mabutol v.
Fed. Home Loan Mortg. Corp., No. 2:12cv406, 2013 WL 1287709, at
*5 (E.D. Va. Mar. 25, 2013) (“Pursuant to this language in the
deed of trust, MERS, as the lender’s nominee and as beneficiary
of the deed of trust, was authorized to assign its right, title,
and interest under the deed of trust . . . .
13
Accordingly, the
Court concludes that the assignment of the deed of trust from
MERS to Nationstar, and Nationstar’s subsequent appointment of
PFC as substitute trustee, were valid.”).
Next, Plaintiffs argue that the Court should
invalidate the foreclosure because HSBC has not produced “any of
the required documentation to support its assertion it owns this
loan[.]”
(Am. Compl. ¶ 33.)
This claim is contrary to
Virginia’s non-judicial foreclosure laws.
See Va. Code § 55–
59.1 (“[T]he fact that the instrument is lost or cannot be
produced shall not affect the authority of the trustee to sell
or the validity of the sale.”)
Virginia has a “well established
status as a non-judicial foreclosure state,” and “there is no
legal authority that the sale or pooling of investment interest
in an underlying note can relieve borrowers of their mortgage
obligations or extinguish a secured party’s rights to foreclose
on secured property.”
Upperman v. Deutsche Bank Nat’l Trust
Co., No. 1:10cv149, 2010 WL 1610414, at *2–4 (E.D. Va. Apr. 16,
2010).
“A defendant’s inability to produce the original note
[does] not render the foreclosure sale invalid, and [a]
plaintiff’s claim to the contrary must be dismissed.”
Gallant
v. Deutsche Bank Nat’l Trust Co., 766 F. Supp. 2d 714, 721 (W.D.
Va. 2011).
By the time their home was foreclosed, Plaintiffs had
long stopped making payments on the loan and had been through a
14
bankruptcy proceeding.
On the facts alleged, the Court cannot
conclude that Plaintiffs have raised a conceivable claim for
relief under Count I.
Accordingly, the Court will grant HSBC’s
motion as to Count I.
C. Count II
Count II, titled “Remove Cloud on Title,” seeks “an
order from this Court directing the land records clerk of the
county in which the property lies to strike/remove the
appointment of substitute trustee documents, the Assignments,
and Trustees’ Deed from the land records.”
(Am. Compl. ¶ 62.)
According to Plaintiffs, because HSBC had no authority to
foreclose, all of these records must be stricken.
(Id. at ¶¶
52-62.)
This claim is entirely derivative of the unsuccessful
arguments alleged above - i.e. HSBC had no authority to
foreclose - and thus, for this reason alone, it must be
dismissed.
Nevertheless, this claim also “fails because
Plaintiffs do not allege that they have satisfied the debt
encumbering the [p]roperty.”
Neil v. Wells Fargo Bank N/A, No.
1:13-CV-644, 2013 WL 4782030, at *2 (E.D. Va. Sept. 4, 2013).
Accordingly, the Court will grant HSBC’s motion as to Count II.
D. Count III
Plaintiffs’ third count alleges a claim for slander of
title.
(Am. Compl. ¶¶ 63-69.)
“To state a valid claim for
15
slander of title under Virginia law, a plaintiff must allege
facts showing ‘(1) the uttering and publication of the
slanderous words by the defendant, (2) the falsity of the words,
(3) malice, (4) and special damages.’”
Allison v. Shapiro &
Burson, LLP, No. 1:09CV00057, 2009 WL 4015410, at *7 (W.D. Va.
Nov. 19, 2009) (citations omitted).
This claim, like those above, is based on allegations
that HSBC did not have an enforceable claim or interest in the
Note and lacked standing to foreclose on the property.
Compl. ¶¶ 63-69.)
(Am.
Thus, according to Plaintiffs, the various
documents filed to effectuate the foreclosure (e.g., the
Trustees’ Deed) have “disparaged Plaintiff’s title to the
Property[.]”
(Id. at ¶ 64.)
As already discussed, Plaintiffs
have failed to state a claim that HSBC lacked authority to
foreclose on the property.
Accordingly, the documents at issue
cannot constitute slanderous statements.
See In re Kazmi, No.
13-10897-BFK, 2013 WL 4859320, at *6 (Bankr. E.D. Va. Sept. 6,
2013).
Moreover, Plaintiffs have failed to allege any set of
facts under which this Court could conclude that HSBC acted with
malice.
See Allison, 2009 WL 4015410, at *7 (granting motion to
dismiss as to plaintiffs’ slander of title claim where they did
not properly allege malice).
Accordingly, the Court will grant
HSBC’s motion and dismiss Count III.
16
E. Count IV
Lastly, similar to the allegations raised in Count One
of the original complaint where Plaintiffs asked for declaratory
relief, Plaintiffs now claim that HSBC breached a contract by
violating the terms of the Deed of Trust “as all conditions
precedent were not satisfied” before foreclosure commenced.
(Am. Compl. ¶ 71.)
Specifically, Plaintiffs claim that HSBC
violated the Deed of Trust by failing to “advise the borrower in
the notice of the right to cure (that the Lender did not
send/was not sent on behalf of the Lender) that [they] had the
right to file a court action and raise any defense . . . [and by
failing to provide] notice of the sale as required by the
contract and Virginia law.”
(Id. at ¶ 72.)
Thus, Plaintiffs
allege the “remedy of foreclosure did not accrue” and the
foreclosure sale was unlawful.
(Id.)
While failure to comply with contractual notice
provisions before foreclosure can constitute a cause of action
under Virginia law, see Harrison v. U.S. Bank Nat’l Ass’n, No.
3:12–cv–00224, 2012 WL 2366163, at *2 (E.D. Va. June 20, 2012),
Plaintiffs have failed to allege any facts sufficient to permit
this claim to proceed.
Here, Plaintiffs’ set forth nothing but
conclusory statements in support of their theory.
In one
sweeping generalization, and without identifying the alleged
contractual provisions at issue, Plaintiffs assert that HSBC did
17
not provide sufficient notice.
There are no facts to support
this generalization, and elsewhere the Amended Complaint alleges
that Plaintiffs repeatedly “receiv[ed] demands for payment and
threats of foreclosure from [HSBC].”
(Am. Compl. ¶ 12.)
As
such, the Court cannot conclude that Plaintiffs have set forth a
claim for relief that is plausible on its face.
Moreover, even
giving Plaintiffs the benefit of doubt, they have failed to
sufficiently allege that they were harmed by the purported
breach.
Plaintiffs do not claim that they would have been able
to pay the amount owed or taken action to halt the foreclosure.
Therefore, even if the notice was defective, Plaintiffs have not
alleged that they suffered any harm as a result.
See Jones v.
Fulton Bank, N.A., No. 3:13–CV–126, 2013 WL 3788428, at *4-5
(E.D. Va. July 18, 2013).
In sum, Plaintiffs’ claims fail because they have not
presented any facts tending to suggest that HSBC exceeded its
legal rights in connection with the mortgage at issue.
Indeed,
the vast majority of Plaintiffs’ arguments run directly contrary
to Virginia law as repeatedly set forth by this Court and other
courts in this circuit.
Plaintiffs cite no cases, and none have
been found, in which a court faced with similar facts and claims
has concluded that such claims are valid under Virginia law.
Consequently, the Amended Complaint must be dismissed in its
entirety with prejudice.
18
IV. Conclusion
For the reasons stated above, the Court will grant
HSBC’s motion to dismiss the amended complaint.
An appropriate order will follow.
November 4, 2014
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
19
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