Estrella et al v. Wells Fargo Bank, N.A. et al
Filing
14
OPINION AND ORDER that Defendants' Motion to Dismiss is GRANTED. Plaintiffs' request for leave to amend is denied as amendment would be futile. Signed by District Judge Mark S. Davis and filed on 12/28/2011. (rsim)
UNITED
STATES
DISTRICT
EASTERN DISTRICT
COURT
OF VIRGINIA
Norfolk Division
HIPOLITO
J.
ESTRELLA,
and
SALVACION
H.
ESTRELLA,
Plaintiffs,
v.
Civil Action No.2:Ilcv414
WELLS FARGO BANK,
N.A.,
and
THE
FEDERAL
HOME LOAN MORTGAGE
CORPORATION
and
SAMUEL
I.
WHITE,
P.C.,
Defendants.
OPINION AND
This
filed
the
by
matter
the
Federal
Samuel
I
Hipolito
of
notice
Home
Loan
White,
J.
allege
that
Bank,
Wells
foreclosing
to
on
a
Motion
N.A.
H.
Fargo
("Freddie
provide
adequate
Plaintiffs'
home.
Dismiss
Fargo"),
Mac"),
and
"Defendants").
Estrella
violated
to
("Wells
(collectively,
Salvacion
failing
on
Corporation
("White")
and
to
Court
Fargo
Mortgage
P.C.
by
the
Wells
Estrella
trust
prior
before
Defendants,
"Plaintiffs")
deed
is
ORDER
(collectively,
the
terms
of
a
pre-acceleration
In
support
of
their
12(b)(6)
record
Motion
conclusively
contractual
briefs
the
unnecessary,
record,
the
and
the
Civ.
Motion
R.
to
the
and
For
is
Fed.
the
that
arguments
process
argument.
that
R.
Civ.
following
a
of
the
is
adequately
not
P.
the
hearing
are
would
the
with
examination
determines
legal
argue
compliance
After
decisional
7(J).
Dismiss
full
Court
facts
significantly by oral
Loc.
Defendants
requirements.
as
presented,
Dismiss,
demonstrates
notice
and
to
be
78 (b) ;
reasons,
aided
E.D.
Va.
Defendants'
GRANTED.
I.FACTUAL AND PROCEDUAL HISTORY1
On
home
May
20,
2008,
mortgage
loan
("Prosperity").2
such
mortgage
prior
to
facts
are
assumed
true
mortgage
accepts
for
the
20,
the
facts
examine
by
(E.D.
958
documents
mortgage
before
error
Va.
762
attached
date
this
is
Court,
contained
Accordingly,
Plaintiffs
to
in
the
entered
the
20,
the
into
into
a
Company
5
6.
the
Bank
of
Simons
(4th
Compl.
Cir.
acknowledge
the
into
Court
is
also
exhibits
769
or
F.
Supp.
Montgomery
Cnty.
1985)).
Here,
that
A.
In
the
Complaint.
Pis.'
accepts
May
20,
with
Prosperity.
a mortgage
v.
2009).
Court
as
Am.,
v.
reveal
Ex.
motion
entered
Though
attached
and
Ltd.
(4th Cir.
Complaint,
Complaint
2008.
the
Plaintiffs
v.
required
Chevrolet,
255
(citing
31
the
deciding
250,
Little
Plaintiffs
Complaint
that
the
Plaintiffs
Court
of
Compl.
30,
to
Plaintiffs'
"documents
F.2d
May
F.3d
in
2011)
notice
Nemet
2010.
reference."
Officers,
from
slates
any
Mortgage
give
purpose
591
May
2d
Police
Inc.,
entered
Specifically,
Court.
on
to
to
debt.
drawn
erroneously
incorporated
954,
the
true
as
permitted
lender
are
borrowers,
The deed of trust associated with
the
before
Complaint
of
as
Prosperity
6.
the
here
Consumeraffairs.com,
the
f
required
recited
currently
with
Compl.
acceleration
1 The
2 The
Plaintiffs,
Mem.
2008,
the
their
the
proper
brief
typographical
in
as
Opp'n
the
1.
date
"notice
the
shall
date
the
be
specify
cured
must
execution,
notice
arrears,
requirements
Although
to
foreclose
the
summer
19,
2009,
in
Plaintiffs
notice,
Wells
the
bid
and
later
Compl.
fSl
26-27.
land
records,
detainer
summons
against
Court
the
of
That
of
court
Plaintiffs
City
entered
appealed
City of Chesapeake.
Compl.
3
not
The
appeal
record
in
the
does
unlawful
Virginia.
in
ruling
to
favor
the
as
Ex.
was
to
White
At
Fargo
high
filed
the
made
bidder
to
filed
in
an
unlawful
General
District
Compl.
of
19,
failed
Wells
the
notice
20-21.
deed
Mac
in
1
to
Such
instructed
1S[
rights
into
the
letter
trustee's
Plaintiffs
judgment
such
its
14.
17-19
Compl.
2010,
Freddie
Chesapeake,
a
20,
A
and
with
Compl.
5
notice
comply
such
its
Wells
fell
default
thereafter
July
assigned
Compl.
trust.
default
and
M
to
that
home.
on
a
from
after
note,
Compl.
of
Fargo
the
payments
send
deed
days
Sometime
such note.
purports
contend
conducted
public
22.
2009.
30
which
mortgage
of
of
the
sale,
the
f
to
foreclosure
Mac.
the
Fargo
Plaintiffs'
Freddie
A,
holder
on
highest
Ex.
than
by
mortgage
forth
adequate
Borrower,
assigned
as
less
Wells
July
set
to
not
Plaintiffs'
during
dated
date,
Compl.
rights
2009,
a
given
."
prompting
Plaintiffs
provide
.
asserts
During
B.
.
is
Prosperity
Fargo now
letter,
.
...
n
Freddie
Circuit
Court
28
&
Mac,
for
30.
and
the
fS[ 28 & 30.3
reflect
detainer
the
status
action.
of
the
state-court
Plaintiffs
of
the
the
City
initiated
of
United
Chesapeake.
States
Virginia,
corporation.
by
Wells
See
Fargo
notice
Plaintiffs
to
Plaintiffs'
seek:
from
Plaintiffs
foreclosure
an
not
sale.
II.
Rule
when
a
complaint
granted.
a
district
the
12 (b) (6)
Fed.
consistent
and
with
a
state
P.
12 (b) (6).
the
the
of
as
a
sent
with
the
Compl.
ff
breached
the
caused
caused
damage
to
Accordingly,
title,
including
(2)
declaratory
costs
letter
dealing,
34.
deed;
1452(f).
comply
Fargo
and
federal
§
trust.
fair
1
defendant
to
must
District
an
compensatory
judgment
associated
that
with
the
OF REVIEW
Civ.
R.
to
36-38.
STANDARD
permits
of
quiet
a
for
fails
court
complaint
(3)
responsible
M
and
trustee's
and
to
Court
case
U.S.C.
Wells
Compl.
Mac's
Compl.
deed
to
the
Eastern
12
distress,
order
Fargo;
removed
fails
that
faith
rating.
Freddie
are
allege
Circuit
acceleration
2009
the
emotional
(1)
Wells
the
of
the
status
1442;
in
good
suffer
striking
damages
of
Mac's
that
summer
further
for
§
asserts
credit
Plaintiffs
the
provision
covenant
in
Court
U.S.C.
the
Plaintiffs
implied
order
in
suit
then
Freddie
28
Complaint
contractual
18-20.
on
instant
Defendants
District
relying
Plaintiffs'
the
"assume
a
claim
the
existence
complaint's
of
In
to
upon
move
for
which
relief
assessing
truth
of
any
fact
all
allegations."
such
facts
that
dismissal
can
E.
a
can
motion,
alleged
be
Shore
be
in
proved,
Mkts.,
Inc.
v.
J.D.
2000) .
Assocs.
While
light
most
elements
for
district
favorable
of
further
a
a
cause
factual
Rule
be
claim
v.
Twombly,
Johnson,
plausibility
to
raise
a
assumption
(even
if
light
Pursuant
all
R.
in
the
a
Civ.
the
above
fact)."
showing
P.
to
Rule
12(d),
accord
the
550
above
requirement
Civ.
of
that
a
the
to
"a
be
level
555
is
is
v.
such
enough
on
are
the
true
(internal
applied
short
a
Corp.
satisfy
must
at
pleader
state
Atl.
complaint
standard
only
complaint
Giarratano
To
U.S.
v.
and
in
plain
entitled
to
8 (a) (2) .
materials
dismiss
12(d).
the
favor,
speculative
in
Twombly,
always,
2009).
allegations
allegations
facts
(4th Cir.
2008).
the
of
Ltd.
Bell
Cir.
"[f]actual
well-pled
face."
its
the
devoid
facts
(4th
R.
P.
on
in
conclusions,
"enough
302
relief
As
to
allege
(2007);
the
claim
motion
not
facts
Cir.
Chevrolet,
plaintiff's
570
298,
to
considering
converts
in
{4th
assertions
255
544,
8(a)'s
Fed.
Fed.
U.S.
that
relief."
facts
the
constitute
F.3d 250,
plausible
right
of
591
bare
to
180
"legal
Nemet
is
standard
Rule
fail
175,
construe
and
does
F.3d
statement
from
the
omitted).
of
action,
Inc.,
F.3d
plaintiff,
it
doubtful
citation
the
if
550
521
must
that
relief
213
purposes."
viewing
dismissed
to
court
to
of
12(b)(6)
After
P'ship,
enhancement
Consumeraffairs.com,
must
Ltd.
the
Court
outside
into
However,
a
is
the
motion
such
generally
pleadings
for
summary
prohibition
does
prohibited
unless
it
judgment.
not
apply
to
documents
Am.
are
Chiropractic
Cir.
2004)
618
(4th
was
[if]
v.
in
expressly
Trigon
(quoting
Cir.
evidence]
it
that
integral
to
and
the plaintiffs
do
v.
1.
The
governs
Lee
v.
parties
the
contract
(discussing
trust
and
Board
issue
of
of
whether
law.").
Under
acceleration]
foreclosure
parties."
121,
654
In
lender
a
Loan
898,
the
the
901
609,
[extrinsic
complaint
the
of
fact
of
800,
law,
state
803
[if]
complaint
and
that
a
of
LLC
deeds
of
Kestler
1995)
{"[T]he
governed
by
state
in
which
[pre-
in
advance
contract
v.
Va.
law);
Cir.
lender
See
(E.D.
concerning
is
law
Court.
943-44
manner
by
Virginia
this
940,
(4th
"the
Contract
contract
exists
matter
Servicing,
2d
questions
right
a
a Breach
Supp.
provided"
"remains
Bayview
violated
is
F.3d
authenticity.'").
the
of
F.3d
Virginia
sale
Simmons,
F.
questions
48
in
currently before
739
contract
notice
S.E.2d
dispute
questions
Trustees,
190
of Contract Claims
not
as
(4th
DISCUSSION
adjudication
mortgages
234
consider
the
See
212,
Inc.,
on
its
to Allege
Inc.,
Int'l
relied
complaint.
F.3d
dismiss
Fail
do
Citimortgaqe,
2010)
v.
Plaintiffs
367
to
challenge
Breach
the
may
explicitly
not
in
court
whether
III.
A.
LCI
("MA]
determining
on
Healthcare,
Phillips
1999))
relied
between
Simmons,
275
Va.
of
a
the
114,
(2008).
Supreme
mortgage
Court
of
contract
Virginia
determined
at
in
issue
that
that
case
a
when
the
lender
failed
to
provide
the
borrower
in
advance
654
S.E.2d
at
901-02.
acquired
the
the
the
Id.
facts
of
Simmons,
right
to
foreclose
acceleration
notice
that
to
Fargo
failed
Plaintiffs
argue
never
be
Id.
in
that,
acquired
comply
afforded
at
similar
the
days
to
on
the
contractual
because
30
never
foreclose
the
with
to
120-22,
Simmons
and
property
to
acceleration
sale.
accelerate
Plaintiffs'
letter
of
lender
Plaintiffs
Wells
on
the
right
Here,
notice
foreclosure
Thus,
contractual
property.
requirement
of
proper
the
pre-
contractual
to
cure
any
default.
It
is
undisputed
that
on
notice letter to Plaintiffs,
Plaintiffs
would
were
accelerate
outstanding
Deed
be
of
class
added) .
the
if
B;
have
sent
of
the
Defs.'
dispute
the
date
mailing
("The
of
note
that
been
when
by
do
letter
Mem.
as
Ex.
of
to
Fargo
sent
19,
19,
that
Wells
paid
the
at
1.
Paragraph
to
Borrower
Borrower
when
a
2009,
a
2009.
19,
first
2009,
and as
15
bar
date
point
out,
code.
nor
Pis.'
Mem.
.
the
Complaint
letter,
.
.
.").
notice
(emphasis
as
Defendants
mail
See
2009
by
19,
1
the
shall
A,
Plaintiffs'
July
mailed
of
.
Borrower's
July
such
.
Ex.
certified
of
.
Fargo
entire
15
to
Compl.
challenge
delivery
on
Wells
and
delivered
n.3.
July
letter was mailed
loan
notice
means."
bears
5
B,
"[a]ny
not
2009,
Plaintiffs
unless
actually
dated July
method
their
given
other
Plaintiffs
is
on
Compl.
states
or
letter
face
Ex.
to
mail
address
the
19,
via certified mail,4 indicating that
default
balance.
Trust
deemed
4 Such
in
July
Compl.
does
dispute
in
not
the
Opp'n
7
of
notice,
afforded
but
instead
Plaintiffs
argue
only
that
eleven
the
days
notice
to
letter
satisfy
the
improperly
outstanding
balance.
The
the
notice
letter
to
paragraph
brought
be
first
current
accelerate
August
18,
Mortgage
19,
the
B,
at
solely
that
Central
Time
excerpt,
as
you
.
states:
must
.
.
quoted
less
than
pay:
."
by
30
provision
Plaintiffs,
days
from
the
which
the
31,
added).
date
to
of
Plaintiffs
can
necessary
added).
Complaint
and
provision
possibility
July
appears
loan
2009,
the
cite
an
PM
such
payment
mailing,
of
of
2:00
Although
require
only
in
[contractual
subsequent
by
(emphasis
your
(emphasis
avoid
$2,596.54
Id.
from
a
states
become
Plaintiffs'
on
"To
on
pursue
1
statement,
focus
clearly
will
and
clear
letter
relevant
it
Note
Ex.
2009,
payments
2009,
opposition
in
date
July
such
acceleration
a
by
on
"[ujnless
Compl.
Notwithstanding
the
that
your
remedies]."
brief
sent
on
entire
excerpt
reads:
To
avoid
the possibility
$2,596.54
by July
of acceleration
31,
2009,
$3,843.98 by August 18,
in
Id.
CERTIFIED
(emphasis
clearly
amount
merely
default
to
added).
provision
is
funds,
Wells
The
indicates
an
remains August
option,
18,
2:00
2009,
Fargo
use
2:00
Home
of
that
the
but
that
2009.
8
you must pay:
PM Central
Time or
PM Central
Mortgage
the
word
earlier
the
Time,
....
"or"
payoff
deadline
in
such
date
for
and
curing
Accordingly,
it
is
clear
letter's
date
of
less
than
.
."
Compl.
alternative
that
at
Ex.
the
A,
1
of
"or"
of
the
amounts
Accordingly,
letter
[was]
well
later
on
19,
is
the
"a
to
attempt
as
the
the
was
the
date
not
Borrower
to
.
avoid
the
unambiguous
use
that
dates,
is
conclusively
with
the
30-day
2009,
provision
record
complied
with
given
alternative
the
and
2009,
Plaintiffs'
as
paragraph
July
18,
notice
letter,
excerpt,
comply
Since
August
selective
first
provision
date
in
notice
letter's
22.
the
payoff
record.
date
from the
paragraph
word
Plaintiffs'
requirement.
the
days
the
payment
notice
30
the
the
both
mailing,
opening
of
that
subsequent
contractual
.
notwithstanding
provides
belied
by
demonstrates
contractual
provision
issue.
2.
Plaintiffs Cannot Recover for Emotional Distress
Plaintiffs
notice
and
emotional
above,
could
the
notice
for
such
prevail
stated
distress
below,
on
Wells
Compl.
was
not
their
they
11
from
the
34.
Assuming
of
by
For
inadequate;
breach
still
Fargo's
foreclosure
damages.
resulting
Complaint.
that
subsequent
distress.
the
recover
assert
thus,
White
not
contractual
inadequate
caused
reasons
claim,
recover
breach
that
for
for
them
discussed
Plaintiffs
arguendo
contract
could
the
alleged
cannot
Plaintiffs
the
reasons
emotional
alleged
in
the
The
tort,
Supreme
damages
recoverable
Wight
(2011)
354,
for
in
Cnty.
Court
297
behind
Fourth
647,
conclusion,
Circuit's
speculative
and
contemplated
by
Id.
Rice
(quoting
(4th
Cir.
there
is
the
may
such
kind
particularly
Cas.
Co.,
likely
F.
when
of
O'Neal,
Supreme
"Asuch
be
they
203
such
rule
which
contract
emotional
1004,
1006-07
Contracts
v.
been
contract.'"
F.3d
283,
the
view
Va.
353
that
"a
2000)
is
of
was
a
Fire
Farm
(1981))
288
that
breach
State
(W.D.
§
too
disturbance
Moorehead
the
have
to
the
343,
are
provides
or
86
quoted
the
expressed
*the
83,
reasoning
damages
Ass'n,
of
Va.
the
Court
formed
not
Isle
224
presumed
some
are
S.E.2d
have
result.'"
(Second)
704
courts
to
2d
v.
Health
serious
Supp.
feelings
Explaining
that
where
that
Inc.
"^absent
contract.'"
148,
reasonably
few
recover
123
Restatement
A
140,
that,
to
of
Virginia
Community
exception
plaintiff
a
the
not
v.
injury
(1982)).
parties
2000)).
an
Va.
statement
could
held
breach
Serv.,
653
has
or
for
281
Sea-Land
S.E.2d
this
action
Nogiec,
(quoting
Virginia
humiliation
an
v.
of
&
(quoting
(emphasis
added).
Here,
exists
the
in
Plaintiffs
Virginia
defendant's
disturbance
must
be
to
rely
law
breach
the
reserved
and
.
.
on
assert
.
plaintiffs
for
the
was
was
trial.'"
view
this
that
"*the
issue
such
that
exception
serious
a
Pis.'
10
that
particularly
Mem.
in
of
whether
emotional
likely
Opp'n
8
result
(quoting
Moorehead,
123
F.
another
division
argument
in
Cole
4007672,
at
*3
Supp.
for
mortgages
of
v.
Va.
not
disturbance
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covenant
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of
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Inc.,
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2011)
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466
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Security
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purported
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a
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next
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v.
(2009)).
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v.
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230,
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238,
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claims
Va.
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LLC,
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entitled
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277
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including
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property."
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relief
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proceeding.'"
1129,
Horvath
2010
WL
538039,
v.
State
Farm
Douros
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insecurity,
Va.
In
at
Horvath,
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Property ha[d]
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WL
Cas.
N.Y.,
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Co.,
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508
questionable
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F.
conduct
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occurred.
(citing
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the
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