Jennings et al v. RoundPoint Mortgage Servicing Corporation et al

Filing 88

MEMORANDUM FINAL ORDER. Equity Trustees' 80 Motion for Summary Judgment is GRANTED. The Clerk is DIRECTED to enter final judgment in this case. Signed by District Judge Rebecca Beach Smith on 3/15/19. (bpet, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

Norfolk Division

STERLING L. JENNINGS, et al.,

Plaintiffs,
V.

CIVIL ACTION NO. 2:17cv427

ROUNDPOINT MORTGAGE

SERVICING CORPORATION, et al.,
Defendants.
MEMORANDUM FINAL ORDER

This matter comes before the court on the Defendant Equity

Trustees, LLC's (^^Equity Trustees") Motion for Summary Judgment

("Motion")

and

accompanying

Memorandum

in

Support,

filed

on

January 18, 2019. EOF Nos. 80, 81. Plaintiffs Sterling L. Jennings

and Deirdre D. Jennings, who are represented by counsel, did not

file a response to Equity Trustees' Motion. For the reasons below.
Equity Trustees' Motion is GRANTED.
I. PROCEDURAL HISTORY

On August 11, 2017, Defendant RoundPoint Mortgage Servicing
Corporation ("RoundPoint Mortgage") removed this case from the

Circuit

Court

Complaint,

for

the

Plaintiffs

City

of

claim

Suffolk.

No. 1.

Defendant

that

ECF

Equity

In

their

Trustees

breached its Deed of Trust with Plaintiffs when Equity Trustees

completed

a

SISI 30-32, 56.

foreclosure
Plaintiffs

sale
also

of

Plaintiffs'

make

claims

property. Compl.

against

Defendant

RoundPoint Mortgage regarding their foreclosure sale. Id.

26,

38, 52. Plaintiffs claim they are entitled to rescission of the
foreclosure sale. Id. SI 53.

The parties engaged in discovery on Plaintiffs' claims, which
concluded

on

RoundPoint

August 14,

Mortgage

2018. ECF No. 22.

filed

a

Motion

for

On

August 31,

Summary

2018,

Judgment,

ECF

No. 42, which this court granted On November 13, 2018. ECF No. 70.
The Clerk entered judgment in favor of RoundPoint Mortgage based

on this court's summary judgment Order. ECF No. 72. On December 12,
2018, Plaintiffs filed a Notice of Appeal of this court's Order

granting summary judgment to RoundPoint Mortgage. ECF No. 74. On
January 18, 2019, Equity Trustees filed the instant Motion. ECF
No. 80. Plaintiffs did not file a response within the fourteen

(14) days provided by Local Civil Rule 7 of the Local Rules for
the

United

States

District

Court

for

the

Eastern

District

of

Virginia, or at any time thereafter. Equity Trustees' Motion is
now ripe for review.
II. JURISDICTION

As an initial matter, this court has jurisdiction to consider
Defendant Equity Trustees' Motion, even

though Plaintiffs have

filed a Notice of Appeal on the summary judgment entered in favor
of

Defendant

RoundPoint

Mortgage.

A

district

court

retains

jurisdiction over a case until such time as a final decision is

made, disposing of all issues and parties in the case, unless an

appropriate interlocutory appeal is filed. E.g., Keena v. Groupon,
Inc./

886

F.3d

360,

362-63

(4th

Cir.

2018)

(outlining

the

circumstances in which an appellate court may acquire jurisdiction
over a case); see 28 U.S.C. § 1291 (courts of appeals ^'shall have

jurisdiction of appeals from all final decisions of the district
courts of the United States . . .

Here,

this

.

court retains jurisdiction

because

Plaintiffs'

Notice of Appeal was premature. See Ruby v. Sec'y of the U.S. Navy,
365 F.2d 385, 389 (9th Cir. 1966) cert, denied, 386 U.S. 1011

(1967), cited with approval in Grigqs v. Provident Consumer Disc.
Co., 459 U.S. 56, 58 (1982) (appeal from an unappealable order

does not divest the district court of jurisdiction over the case).

Plaintiffs' Notice of Appeal was not taken from a final decision
in the case, as required under 28 U.S.C. § 1291. To be a '^final
decision" pursuant to 28 U.S.C. § 1291(a), the court's order must
"be final not only as to all the parties, but as to the whole
subject-matter

and

as

to

all

the

causes

of

action

involved."

Andrews v. United States, 252 U.S. 334, 340 (1963). This court's

November 13, 2018 Order granting summary judgment to RoundPoint
Mortgage did not address Plaintiffs' pending claims against Equity
Trustees, the other Defendant in this case, and thereby was not a
final decision in the case.

Moreover, Plaintiffs' Notice of Appeal also does not meet any
of

the

conditions

for

an

interlocutory

appeal.

Interlocutory

appeals, in which an appeal is permitted prior to the entry of a
final order in the case, are allowed only in narrow, enumerated
circumstances, such as when the court issues an order regarding an

injunction,

the

liabilities

of

appointment of a
parties

§ 1292(a)(1)-(3).

to

Here,

an

receiver,

admiralty

Plaintiffs'

or

the

case.

appeal

as

rights and

See
to

28

the

U.S.C.
summary

judgment in favor of RoundPoint Mortgage does not fit into one of

the

narrow

categories

appropriate,

and

the

where

court

an

will

interlocutory
proceed

to

appeal

consider

is

Equity

Trustees' Motion, which is now ripe for review.
III. UNCONTROVERTED FACTS

The following facts here are taken from Equity Trustees'
Memorandum in Support of its Motion. EOF No. 81. When a party fails
to

respond

to

a

motion

for

summary

judgment,

it

'"leave[s]

uncontroverted those facts established by the motion." Custer v.
Pan Am. Life Ins. Co., 12 F.Sd 410, 416 (4th Cir. 1993); see Fed.

R. Civ. P. 56(c)(1); E.D. Va. Local Civ. R. 56(B) ("In determining

a motion for summary judgment, the Court may assume that facts

identified by the moving party in its listing of material facts
are admitted, unless such a fact is controverted in the statements

of genuine issues filed in opposition to the motion."). In its
Memorandum

in

Support,

Equity

Trustees

set

forth

undisputed

material facts in this case, and cited to the record in support of
each

of

its

Plaintiffs

factual

have

contentions.

failed

ECF

No. 81

at 2-3.

Because

to respond to Equity Trustees' Motion,

Equity Trustees' factual assertions are accepted as uncontroverted
for the purposes of this Motion. See Custer, 12 F.3d at 416; Fed.
R. Civ. P. 56(c)(1); E.D. Va. Local Civ. R. 56(B).

On June 10, 2015, Plaintiffs obtained a loan from Movemement

Mortgage,

LLC,

which

Administration. ECF

was

insured

by

the

Federal

No. 81 at 2. Plaintiffs executed

a

Housing
Note

and

Deed of Trust securing the loan with the subject property, 408
Quaker Ridge Court, Suffolk, Virginia 23435. Id. Servicing of the
loan transferred to RoundPoint Mortgage on August 1, 2015, and the

rights

and

interest

in

the

Deed

of

Trust

were

assigned

to

RoundPoint Mortgage on March 1, 2017. Id. After August 30, 2016,
Plaintiffs stopped making monthly mortgage payments. Id.
On December 1, 2016, RoundPoint Mortgage sent Plaintiffs a

letter,

stating

''[t]he

Federal

Housing

Administration

(FHA)

requires mortgage servicers to attempt to schedule a face-to-face
meeting with Customers with past due accounts to discuss possible
repayment options." Id. The letter further stated;

If we do not hear from you, then we may send
a representative to the property address
listed above in an attempt to contact you.
Please contact us within 14 calendar days of
this

letter

meeting

or

to

to

schedule

notify

us

the

that

face-to-face

you

are

not

interested in participating in a face-to-face
meeting.

Id. Plaintiff Deirdre Jennings acknowledged receiving the letter,
and testified in her deposition that she placed a telephone call
to RoundPoint Mortgage in response to the letter. Id. at 3.
On or about December 22, 2016, a RoundPoint Mortgage agent

and/or employee traveled to Plaintiffs' property and met with
Plaintiffs.

Id.

In

a

letter

dated

January 4, 2017,

RoundPoint

Mortgage notified Plaintiffs that the loan was in default, and

failure to cure the default by February 10, 2017 could result in
RoundPoint Mortgage's initiation of foreclosure proceedings. Id.
By April 26, 2017, Plaintiffs failed to cure the default specified
in

the

January 4,

2017

notice.

Id.

RoundPoint

Mortgage

then

accelerated the amounts due under the Note and Deed of Trust and

appointed Equity Trustees to conduct a foreclosure sale of the
mortgaged property. Id. Equity Trustees conducted a foreclosure
sale of the property on May 2, 2017. Id.
IV. LEGAL STANDARD

Summary judgment pursuant to Federal Rule of Civil Procedure
56 is appropriate when the court, viewing the record as a whole
and in the light most favorable to the nonmoving party, finds there
is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-50 (1986). A court should grant summary

judgment if the nonmoving party, after adequate time for discovery,
has failed to establish the existence of an essential element of

that party's case, on which that party will bear the burden of
proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The nonmoving party's failure to respond to a motion for
summary judgment ^Moes not fulfill the burdens imposed on moving
parties by Rule 56." Custer, 12 F.3d at 416. Rather, the court
must still review the motion, regardless of the fact that it is
unopposed, and "determine from what it has before it whether the

moving party is entitled to summary judgment as a matter of law."
Id.

V. ANALYSIS

Plaintiffs claim that Equity Trustees breached its Deed of

Trust with

Plaintiffs

by advertising

the

foreclosure

sale

of

Plaintiffs' property when it was on notice that RoundPoint Mortgage
had failed to complete necessary preconditions of foreclosure.
Compl.

SI 30-32.

^'knowingly

and

Plaintiffs

further

willfully foreclosed

claim

on

that

the

Equity

Plaintiffs

Trustees

without

completing their due diligence to verify the status of the debt
owed." Id.

SI 56.

However, both

of these

claims

must fail as a

matter of law, because they are not supported by the uncontroverted
facts of this case.

A.

The uncontroverted facts^ show that Equity Trustees did not
breach

its

Deed

of

Trust

with

foreclosure

sale

of

Plaintiffs'

Plaintiffs

property.

by

advertising

Although

the

Plaintiffs

claim that this was a breach because Equity Trustees was on notice

of

RoundPoint

Mortgage's

failure

to

complete

necessary

preconditions of foreclosure, the uncontroverted facts show that

RoundPoint

Mortgage

foreclosure.
December 1,

fulfilled

RoundPoint
2016,

to

Mortgage
schedule

necessary
sent
a

preconditions

Plaintiffs

face-to-face

a

of

letter

meeting

on

with

Plaintiffs; RoundPoint Mortgage had a face-to-face meeting with
Plaintiffs

on

December 22,

2016;

and

RoundPoint

Mortgage

sent

Plaintiffs a letter on January 4, 2017, advising them that their
loan

was

in

February 10,

default,

2017,

and

could

failure

result

to

in

cure

the

RoundPoint

default

by

Mortgage's

initiation of foreclosure proceedings.
None of these facts establish a claim that Equity Trustees

had notice of any legal wrong suffered by Plaintiffs, and in fact
they affirmatively show that RoundPoint Mortgage complied with
several

preconditions

Administration

of

foreclosure.

The

Federal

Housing

C'FHA") requires that, for all federally-insured

mortgages, "[t]he

mortgagee must have

^ See supra Part III.
8

a face-to-face interview

with the mortgagor, or make a reasonable effort to establish such

a

meeting,

before

three full monthly installments

due on

the

mortgage are unpaid." 24 C.F.R. § 203.604. The FHA further requires

that ^^prior to initating any action required by law to foreclose
the mortgage, the mortgagee shall notify the mortgagor in a format

prescribed by the Secretary that the mortgagor is in default and
the mortgagee intends to foreclose unless the mortgagor cures the
default." 24 C.F.R. § 203.606.

RoundPoint Mortgage complied with the face-to-face meeting
requirement

letter

when

seeking

its

to

sent the

schedule

Plaintiffs its

a

face-to-face

December 1,

meeting,

and

2016

when

RoundPoint Mortgage and Plaintiffs had their face-to-face meeting
on December 22, 2016.2 RoundPoint Mortgage also complied with the
notice of default requirement when it sent Plaintiffs a letter on

January 4, 2017, advising them that their loan was in default, and
failure to cure the default by February 10, 2017, could result in
RoundPoint Mortgage's initiation of foreclosure proceedings. These
uncontroverted

Mortgage

facts

failed

to

do

not

support

complete

a

claim

necessary

that

RoundPoint

preconditions

of

2 The circumstances of the letter and subsequent meeting made
clear that these actions were taken to comply with 24 C.F.R.
§ 203.604. In its December 1, 2016 letter, RoundPoint Mortgage
advised Plaintiffs that ^^[t]he Federal Housing Administration
(FHA) requires mortgage servicers to attempt to schedule a
face-to-face meeting with Customers with past due accounts to
discuss possible repayment options." ECF No. 81 at 2.

foreclosure; and, consequently. Equity Trustees did not advertise
the foreclosure sale of Plaintiffs' property when it was on notice
that

RoundPoint

preconditions

of

Mortgage

had

foreclosure.

failed
Equity

to

complete

Trustees

is

necessary

entitled

to

summary judgment on this claim by Plaintiffs.^
B.

The uncontroverted facts^ also fail to support Plaintiffs'

claim that Equity Trustees knowingly and willfully foreclosed on

the Plaintiffs without completing their due diligence to verify
the

status

of

the

debt

owed.

The

uncontroverted

facts

are

that

after August 30, 2016, Plaintiffs stopped making monthly mortgage

payments; by April 26, 2017, Plaintiffs had failed to cure the
default in their loan from RoundPoint Mortgage; and on April 26,

2017, RoundPoint Mortgage accelerated the amounts due under the
Note and Deed of Trust.

These facts do not support a claim that Equity Trustees failed

to verify the status of Plaintiffs' debt prior to commencing
foreclosure proceedings. Pursuant to FHA regulation, a mortgagee

3 The court's ruling is consistent with its previous
determination that RoundPoint Mortgage did not violate FHA
regulations or other applicable law during the foreclosure sale of
Plaintiffs' property. See ECF No. 70. On November 13, 2018, the
court granted summary judgment to RoundPoint Mortgage, determining
as a matter of law that RoundPoint Mortgage completed the necessary
preconditions of foreclosure prior to initiating the foreclosure
sale of Plaintiffs' property. Id.
See supra Part III.
10

of an FHA-insured mortgage is permitted to foreclose on a mortgage

if at least three (3) full monthly payments remain due and payable,
assuming that the necessary preconditions of foreclosure, such as
a notice of default, have been satisfied. 24 C.F.R. § 203.606; see

supra Part V.A (discussing RoundPoint Mortgage's compliance with
the

notice

of default

requirement); ECF No. 70

(court's

Order

determining as a matter of law that RoundPoint Mortgage completed

the necessary preconditions of foreclosure prior to initiating the
foreclosure sale of Plaintiffs' property).^
The
Trustees

May 2,

uncontroverted
conducted

2017,

a

facts

show

foreclosure

Plaintiffs'

had

that,

sale

not

of

made

a

at

the

time

Plaintiffs'

mortgage

Equity

property

payment

to

RoundPoint Mortgage since August 30, 2016, far greater than the
minimum of three (3) months required by the FHA. Moreover, prior
to

the

foreclosure

sale,

RoundPoint

Mortgage

accelerated

the

amount due under Plaintiffs' note, making Plaintiffs' entire debt
to RoundPoint Mortgage due and payable.
Under

these

facts,

the

debt

that

the

Plaintiffs

owed

RoundPoint Mortgage was properly established and owing at the time
that Equity Trustees conducted a foreclosure sale on May 2, 2017.

Plaintiffs' claim that Equity Trustees failed to verify the status
of the debt Plaintiffs owed prior to conducting a foreclosure sale

See supra note 3.
11

is without merit under the uncontroverted facts. Assuming Equity
Trustees had a duty to Plaintiffs here, any verification

with

RoundPoint Mortgage would have shown the foreclosure sale to be

permissible. Therefore, even if Equity Trustees breached that duty
by not conducting any verification prior to the foreclosure sale.
Plaintiffs would not be entitled to any relief because the debt
was in fact owed by Plaintiffs; the foreclosure was not invalid

and/or subject to being rescinded. Simply put. Plaintiffs cannot
show that they were harmed by Equity Trustees' alleged failure to
verify and are thereby not entitled to the relief they seek. Equity
Trustees is entitled to summary judgment on this claim.
VI. CONCLUSION

Neither of Plaintiffs' claims against Equity Trustees are

supported by the uncontroverted facts of this case, and Plaintiffs
have not shown any reason why they are entitled to invalidation
and/or rescission

of the foreclosure sale. Accordingly, Equity

Trustees' Motion for Summary Judgment, ECF No. 80, is GRANTED. The
Clerk

is

DIRECTED

to

enter

final

judgment

in

this

case

in

accordance with this Memorandum Final Order, and the court's Order

of November 13, 2018. The Clerk is further DIRECTED to send a copy

of this Memorandum Final Order to counsel for the parties.

12

IT IS SO ORDERED

JsL
Rebecca Beach Smith

United States District Judge
REBECCA

BEACH

UNITED STATES

March

, 2019

13

SMITH

DISTRICT

JUDGE