United States of America v. Brunner et al

Filing 14

MEMORANDUM OPINION AND ORDER GRANTING 8 Motion for Summary Judgment. The defendants are ordered to VACATE the property within twenty (20) days of the date of this Order or such later date agreed on by the parties, as outlined. (See Order for Specifics) Entered 10/7/13 and filed 10/8/13. (Signed by District Judge Raymond A. Jackson on 10/7/13). (ecav, )

IN THE UNITED STATES DISTRICT COUR-f

FOR THE EASTERN DISTRICT OF VIRGINlk

Norfolk Division

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UNITED STATES OF AMERICA,

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Plaintiff,

CIVIL ACTION NO. 2:13cv86

V.

GLENN H. BRUNNER, and
BRENDA T. BRUNNER
Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff United States' Motion for Summary Judgment on its

ejectment claim against Defendants Glenn and Brenda Brunner. Having carefully considered the
parties' pleadings, this matter is now ripe for disposition. For the reasons set forth herein,
Plaintiffs Motion for Summary Judgment is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY

PlaintiffUnited States seeks ejectment of Defendants Glenn and Brenda Brunner

("Defendants" or "the Brunners") from the 6.2 acre parcel ofland owned by the United States
and formerly leased to Defendants. The Brunners purchased the land in 1990 with a mortgage

loan provided by the Farmers Home Administration ofthe Department ofAgriculture, now the
Farm Services Agency (FSA). The Brunners defaulted on the loan and the property was
foreclosed and deeded to the United States on November 16, 2007. The Brunners were allowed

to remain on a 6.2 acre parcel of the land under the Homestead Protection Program, which allows
previous owners to lease their foreclosed farms from the FSA.

The initial lease was for a five year term starting May 1,2009 at $18,000 annual rent.

The Brunners did not pay rent for the first year when it became due on April 30,2010. They
were notified by the FSA on June 7,2010 that their lease was being terminated for failure to pay
rent. On October 12,2010, the Brunners filed an appeal with the Department ofAgriculture's

National Appeals Division (NAD) to challenge the method used to calculate the rental amount
and invalidate the lease for failure to include an option to purchase provision. The NAD found

the appeal of the rental amount untimely but decided that the lease was defective for failing to
offer the Brunners an option to purchase. The Brunners were offered an amended lease on

November 29, 2010, which they also successfully appealed since the lease included conflicting
terms. The Brunners were offered a second amended lease on June 4, 2011, which they signed.

On June 15,2011, the FSA sent the Brunners a demand that the rent owed be paid by July 15,

2011. On July 18, 2011, the FSA mailed aNotice ofLease Termination to the Brunners and

gave them thirty days to vacate the property. The Brunners appealed the lease termination to a
NAD Hearing Officer on October 26, 2011 and then again to aNAD Director on March 23,
2013. Both appeal decisions upheld the lease termination.
The Brunners assert that because the United States recorded a quick claim agricultural

use only ban on the property, they were unable to sell the land and were forced to file for
bankruptcy. The Brunners also state that the FSA first quoted a $700-$900 monthly rent range
and do not believe they should be required to pay $18,000 annually, especially since the FSA
failed to make repairs to their home, the house has no heating or cooling systems, the floors and
walls are rotting and caving in, and halfof the electrical outlets do not work.
The United States filed a complaint for ejectment and now moves for Summary Judgment

and waives oral argument. The United States wishes to reserve the right to seek judgment for the

defaulted payments. The Brunners have aseparate discrimination claim pending against the
Department of Agriculture.
II. LEGAL STANDARD

Under Rule 56 ofthe Federal Rules of Civil Procedure, "[t]he Court shall grant summary

judgment ifthe movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter oflaw." Fed R. Civ. P. 56(a); see also McKinney v.

Bd ofTrustees ofMd. Cmty. Coll., 955 F.2d 924,928 (4th Cir. 1992) ("[S]ummary judgments
should be granted in those cases where it is perfectly clear that no issue of fact is involved and

inquiry into the fact is not necessary to clarify the application of the law.") (citations omitted).
In deciding amotion for summary judgment, the court must view the facts, and inferences to be
drawn from the facts, in the light most favorable to the nonmoving party. Anderson v. Liberty

Lobby Inc., All U.S. 242,247-48 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587(1986).

Once a motion for summary judgment is properly made and supported, the opposing

party "must come forward with specific facts showing that there is agenuine issue for trial."
Matsushita, 475 U.S. at 586-87 (internal quotations omitted). Summary judgment will be

granted "against aparty who fails to make ashowing sufficient to establish the existence of an
essential element to that party's case, and on which that party will bear the burden ofproof at

trial." Celotex Corp. v. Catrett, All U.S. 317, 324 (1986). "Genuineness means that the
evidence must create fair doubt; wholly speculative assertions will not suffice." Ross v.

Commc'ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), abrogated on other grounds by,

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); see also Ash v. United Parcel Serv., Inc.,

800 F.2d 409,411-12 (4th Cir. 1986) (noting that the nonmoving party must offer more than
unsupported speculation to withstand amotion for summary judgment).
III. DISCUSSION

The United States seeks to eject the Brunners from its land pursuant to Virginia Code §

8.01-133, which empowers aparty with the right to possession to name any occupier ofthose

premises as adefendant in acivil action ofejectment. Providence Prop., Inc. v. United Virginia
Bank/Seaboard Nat'l, Trustee, 219 Va. 735, 748 (1979). See also Catholic Bishop ofNesgually
v. Gibbon, 158 U.S. 155,170 (1985) (holding that all leases for adefinite term have an express

or implied covenant that the lessee will vacate the leasehold at the expiration or termination of
the lease); Prudential Ins. Co. ofAmer. v. United States, 801 F.2d 1295,1299 (Fed. Cir. 1986)

(noting that there is an implied contractual duty to vacate the premises at the expiration ofthe
lease unless there is an express clause to the contrary). In order to eject adefendant, the plaintiff
has the burden of proving he has good title and the right to possession of the property.
Providence Prop., Inc., 219 Va. at 744.

The parties do not dispute the United States' title to the property. However, the United
States argues that it has aright to possess the property since its termination of the Brunners'
lease was lawful. Under the federal regulations for the Homestead Protection Program, the FSA

"may terminate the lease ifthe lessee does not cure any lease defaults within 30 days ofAgency
notification." 7C.F.R. §766.154(d). Defendants have never paid rent and have not
demonstrated an intent to cure their default.

The Brunners contest the United States' right to possess the property. First, the Brunners

contend that they should not be ejected for failure to pay rent because the FSA did not make

repairs as required under landlord-tenant law. However, the leases the parties signed expressly

provide that the property is leased in its "as is" condition, the lessee is responsible for
maintaining the property, and the lessee waives his or her right to make offsets from rent for

repairs or improvements unless prior written approval of lessor is given. (Dkt. 9-2, f5, 2). See
also 1 C.F.R. §766.154(b)(4) (explaining that Homestead Protection Program lessees agree to

"make lease payments on time and maintain the property"). The United States is not responsible
for damages or repairs to the leasehold and its failure to keep maintenance does not prohibit the
termination of the lease or bar an ejectment action.

Second, the Brunners argue that they should not be ejected for failure to pay rent because
the lease amount does not represent the true value oftheir home as required by federal

regulations ofthe Homestead Protection Program. Under the applicable regulation, when a lease
is executed under the Homestead Protection Program, "[t]heamount of rent will be based on

equivalent rents charged for similar residential properties in the area in which the dwelling is
located." See 7 C.F.R. § 766.154(b)(1). However, the Brunners' appeal of therent amount was

not timely because it was not made within thirty days ofthe notification ofthe rent calculation.

7C.F.R. § 11.6(b)(1). Even ifthe appeal ofthe rental amount was timely and could be reviewed,
the Brunners have not provided concrete proof that $18,000 annual rent is not equivalent to rent

charged for similar properties in the same area. This dispute over rental amount does not present
a sufficient challenge to the United States' termination of the lease or right to possess the
property.
IV. CONCLUSION

The Defendants have offered nonmeritorious justifications for their nonpaymentof rent,

including the dilapidated condition ofthe leasehold, multiple unlawful leases and inflated rental
amount. These justifications do not invalidate the termination of their lease orentitle them to

continue to possess land owned by the United States. The Defendants have not demonstrated
that there are genuine issues as to any material facts regarding the United States' title to the

property, right to possess the land or ejectment cause of action; thus, as amatter of law, the
United States has met its burden ofshowing that it has the statutory right to bring an ejectment
action against Defendants and that ithas right to possession ofthe property.
For the above reasons, the Motion for Summary Judgment is GRANTED. The

Defendants are ordered to VACATE the property within twenty (20) days ofthe date ofthis
Orderor such later date agreed on by the parties.

The Clerk is DIRECTED to send a copy of this Order to the parties.
IT IS SO ORDERED.

Raymond A. Jackson

UnitedStates District Judge
Norfolk, Virginia

October / ,2013