Davis v. Samuel I. White, PC et al

Filing 75

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 4/21/14. Copy sent: Yes(tdai, )

1

IN THE UNITED

STATES

EASTERN DISTRICT

DISTRICT

CLERK, U.S. DISTRICT COURT
RICHMOND VA

Plaintiff,
Civil Action No.

SAMUEL I. WHITE,
et al.,

3:13cv780

P.C.,

Defendants.

MEMORANDUM OPINION

The

matter

is

before

the

INJUNCTIVE RELIEF

(Docket No.

MOTION

TO

COMPLAINT

White,

P.C,

Bank,

DISMISS

5)

F.S.B.

and

Federal

MOTION

AND

(Docket

(6)

COMPLAINT
AND

TO

No.

(Docket

NOTICE

OF

FOR

37

MOTION

(Docket

PER RULE
FOR

No.

SANCTIONS

50)

filed

TO

FAILURE

20)

TO

D.

25),
R.

FOR

Davis;

(2)

Samuel

J.

GUILLOT,

DEFENDANT AMY

CIV.

P.

MOTION

12(b)(1)

TO

EXPEDITED

RESPOND

FEDERAL

AGAINST

48)

RONALD

Michael

D.

I.

filed by OneWest

RONALD

FED.

FOR

MOTION

TO

DISMISS

DISCOVERY

MOTION

FOR

filed by Michael D. Davis;

(Docket No.

by

16)

WHITE'S

MOTION

AGAINST

37

(1)

filed by

(Docket No.

ERIC

(3)

(Docket No.

SANCTIONS

ASSOCIATION AS
Davis,

45);

DEFENDANTS'

INJUNCTIVE RELIEF
MOTION

and

13)

Mortgage,

PURSUANT

29),

No.

No.

(Docket No.

National

DISMISS

on:

filed by Michael

JR.'S MOTION TO DISMISS COMPLAINT
MILLER'S

Court

(Docket

MOTION TO DISMISS

[Li/

OF VIRGINIA

DAVIS,

v.

E

F APR 2 I2014

COURT

Richmond Virginia

MICHAEL D.

I

NATIONAL

(4)

MORTGAGE

filed by Michael
GUILLOT

Davis,

AS

D.

PER

RULE

MOTION

FOR

SANCTIONS AGAINST SAMUEL I.

51)

filed

by

Michael

D.

WHITE,

PC AS

Davis,

MOTION

ONEWEST BANK AS PER RULE 37

(Docket No.

Davis,

AGAINST

MOTION

(Docket No.

FOR

59)

SANCTIONS

filed by Michael

AGAINST

AMY

MILLER

Michael

D.

Davis,

SANCTIONS

AS

PER

and

AGAINST

AMY

filed by Michael D.

Davis;

D.

RULE

FOR
58)

ERIC

(Docket
WITHDRAW

PER

and (5)

AGAINST

AS

PER

RULE

37

MOTION FOR SANCTIONS

TO

AS

SANCTIONS

WHITE

Davis,

(Docket No.

filed by Michael D.

37

MOTION

MILLER

PER RULE 37

RULE

No.

37

49)

THE

filed

MOTION

(Docket

by
FOR

No.

62)

MOTION TO CORRECT (Docket No.

56) filed by Michael D. Davis.

As a preliminary matter,
with

the

defendants'

motions

the Court will begin its
to

dismiss,

because

the

analysis
plaintiff

fails to state any actionable claims and many claims are barred
on jurisdictional grounds.
a

As a result,

the Court need not reach

decision on the other matters.

BACKGROUND

The

dispute

before

the

Court

dates

back

to

2007

when

Michael D. Davis obtained a construction loan from IndyMac Bank,

FSB ("IndyMac") to construct a home in Columbia,

Virginia.1 In

1 The Complaint expressly refers to the opinion in Davis
OneWest Bank,
F.S.B., No. 3:09cv699, 2010 WL 538760 (E.D.
Feb.
12, 2012)
(Hudson,
J.). The Court will consider it

v.
Va.
and

another previous opinion referred to in the Complaint,
Fed.
Nat'l Mortg. Ass'n v. Davis,
No.
3:12cv781,
2013 WL 4061644
(E.D. Va. Aug. 9, 2013) (Payne, J.) to set forth the background
of the case because the Complaint sorely lacks factual context.
See Stoney Glen, LLC v. S. Bank & Trust Co., 944 F. Supp. 2d

July 2008,
of

the Office of Thrift Supervision closed IndyMac.

IndyMac's

FSB,

assets

and then all

transferred

to

OneWest Bank,
Va.

Feb.

12,

At

were

OneWest

F.S.B.,

some

IndyMac

Bank,

No.

of

F.S.B.

3:09cv699,

point,

Court

title

removed
Judge
of the

claim

Davis

for

among

the

made

Federal

Bank,

Bank were
Davis

2010 WL 538760,

late

In 2009,

Goochland

other

action

Hudson,

payments

at

*1

v.

(E.D.

to

this

the Court

against
the

any
Note

of
or

on

the

loan

and

Davis filed an action in the

County

claims.

against

The

Court.

OneWest

("Fannie Mae")

defendants

In

an

dismissed each of

foregoing reasons,

invalidate

Federal

("OneWest").

Federal National Mortgage Association

quiet

IndyMac

2010) .

OneWest demanded payment.
Circuit

to

deposits

of the

transferred

All

the

the

seeking to

in

opinion

and

that

case

authored

claims:

by

"For all

the Complaint neither states a viable

the

Defendants

Deed

of

Trust."

nor

a

legal

OneWest

basis

to

2010

WL

Bank,

538760, at *4. Davis did not appeal that adverse decision.

460, 464 (E.D. Va. 2013) ("Ordinarily, a court may not consider
any
documents
that
are
outside
of
the
complaint,
or
not
expressly incorporated therein, without converting the motion
into one for summary judgment. However, there are a number of

exceptions to this rule.
official public records,
claim,

and documents

Specifically, a court
documents central to

sufficiently referred to

^ay consider
a plaintiff's

in the complaint,

so long as the authenticity of these documents is not disputed'
....") (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609,
618 (4th Cir. 1999); see also Witthohn v. Fed. Ins. Co., 164 F.
App'x 395, 396 (4th Cir. 2006)
(holding that a district court
may take judicial notice of state court records while deciding a
motion to dismiss).

Instead,

Davis

filed

a

second action

in

the

of Goochland County on February 25,

2010,

"Request

Production

for

Complaint,

25, 2010)

Order

to

Compel

Davis v. OneWest,

FSB,

Court

which was styled as a

CL10-24

of

Documents."

(Va. Cir.

Ct.

Feb.

(Goochland County) . As he had in the first action that

was removed to federal court,
was

No.

Circuit

invalid

addition,

and

that

Davis

representatives.

OneWest

vaguely

The

Davis again asserted that the note
was

not

alluded

Circuit

entitled

to

Court

to

enforce

misconduct

for

by

Goochland

it.

In

OneWest's

County

heard

oral argument and issued an order dismissing the claims on June
10,

2010.

Davis v. OneWest,

FSB,

22,

2010)

(Goochland County).

No.

The

CL10-24

(Va.

Cir.

court denied Davis'

Ct.

June

motion to

amend his complaint.
On

July

2012,

the

sale,

and

Fannie

property.

(Compl.

Ex.

initiated

an

foreclosure

General

30,

unlawful

District Court

Nat'l Mortg.

Ass'n v.

*1 (E.D. Va. Aug.
before

this

9,

Court

E.)

Columbia
Mae

On

detainer

property

obtained

October

action

5,

2013)

after

No.

3:12cv781,

sold

title

at

a

to

the

Fannie

2012,

against

for Goochland County,
Davis,

the

was

Mae

Davis

Virginia.

in

the

See Fed.

2013 WL 4061644,

at

(Payne, J.). That action briefly came
Davis

filed

a

Notice

of

Removal

and

filed numerous counterclaims alleging violations of the Truth in
Lending

Act

and

numerous

state

law

claims.

However,

the

Court

found that it did not have subject matter jurisdiction over the

Davis'
*1,

claims and granted Fannie Mae's motion to

remand.

Id. at

*10.

Subsequently,

on

November

25,

2013,

the

General

District

Court for Goochland County awarded Fannie Mae possession of the
property
2014.

and

ordered

the

Davises

to

vacate

it

by

January

31,

Davis filed this action alleging thirteen

On the same day,

claims against the defendants.

Davis avers in his Complaint that

eleven of the thirteen claims "identical to those argued upon in

3:12cv781.

. . . [T]hey were left in their original position as

to remove any misconception that these are new issues which need
to be re-argued."

(Compl.

SI 18.) The two new claims allege:

(1)

that Amy E. Miller,

who represented OneWest and FannieMae in the

previous

engaged

lawsuits,

"federal

question"

(Compl. n

47-62,

in

involving

"attorney misconduct"
"bad

faith

legal

and

(2)

a

practices."

151-74.)
DISCUSSION

1.

Standard of Review

Fed.

R.

Civ.

P.

8 provides that "a pleading that states a

claim for relief must contain ... a short and plain statement
of

the

Fed.

claim showing

R. Civ.

that

the

pleader

is

entitled to

P. 8(a) (2). A court must dismiss a complaint if it

fails to state a claim upon which relief may be granted.
Civ.

P.

relief."

12 (b) (6) .

Fed. R.

To

overcome

plaintiff's
claim

that

a

Rule

complaint

12(b) (6)

"must

is

plausible

F.3d 218,

provide

on

Motor Co. , 551

222

Corp.

v. Twombly,

plausibility
allows

Iqbal,

when

the

defendant

550 U.S.

the

court

is

556

liable

U.S.

a

for
678

or

2009)

(2007)).

v.

Am.

allegation."

Id.

at

conclusions

678.

assertions

As

the

inference

facts

that

of

"couched

wrongdoing

the

complaint

grounds

8(a) (1).

within

588 F.3d 186,

pleading must

the

"A

its

violation;

usurpation

for

also
the

federal

subject
it

of

is

state

Arthur R. Miller

the

v.

550

at

U.S.

alleged

as

Circuit

has

necessitate

to

cross

a

in

a

factual

explained,

some

the

factual

line

between

possibility and plausibility of entitlement to relief."

A

that

Ashcroft

Twombly,

the

Fourth

of

within

v. Giacomelli,

a

Honda

content

alleged."

(citing

state

"A claim has facial

factual

misconduct

that

to

the

(quoting Bell Atl.

reasonable

assumes

legal

enhancement

facts

Robinson

pleads

(2009)

dismiss,

a court need not consider unsupported legal

conclusions

"naked

the

the

court

complaint are true,

face."

555

to

enough

(4th Cir.

544,

draw

662,

556) . Although

its

plaintiff

to

motion

193

(4th Cir.

contain "a

court's

court's

matter

2009).

short

jurisdiction

judicial

& Edward H.

and plain

jurisdiction."

entertaining

nothing

less

a

Cooper et

13

Fed.

case

is

than

power."

Francis

no

an

statement

R.

Civ.

that

mere

is

P.
not

technical

unconstitutional

Charles

al. , Federal

A.

Wright,

Practice

&

Procedure,

Jurisdiction

adjudicate in federal
the

federal

court

§

3522

possesses

complaint,

the

Court

however

ed. ) . The

party

court has the burden of

Kokkonen v. Guardian Life Ins.

Finally,

(3d

jurisdiction
Co.,

511 U.S.

remains

inartfully

over
375,

the

377

that

must

be

matter.

(1994).

pro

"a
held

to

se
less

stringent standards than formal pleadings drafted by lawyers
. ." Estelle v. Gamble,
2.

429 U.S.

97,

to

establishing that

mindful

pleaded,

seeking

. .

106 (1976).

Claim Preclusion

As

time

our

an

action

sister

individual

to

it

judgment

"has

delay

be

the

in

one

has

958 F.
last.

of

the

noted,

attempted

foreclosure."

Acquisition Corp.,
will

district

Supp.

But,

to

this

use

is

not

multiple

Canterbury

v.

the

first

causes

J. P.

Morgan

2d 637, 647 (W.D. Va. 2013).

when

actions,

a

court

then

has

"courts

issued

have

of

a

Nor

final

applied

res

judicata to bar parallel and subsequent litigation." Id.
The

doctrine

litigation
previous

F.3d

on

of

the matters

adjudication.

316,

318

(4th

conceptual
preclusion.

Id.

precludes

Yachts,

2002).
claim

LLC

The

v.

resolved

Mollicam,

doctrine

preclusion

subsequent
in

a

Inc.,

287

encompasses

two

and

(2)

issue

"Claim preclusion generally refers to the effect

a prior judgment in

very same claim,

(1)

judicata

actually and necessary

Orca

Cir.

branches:

of

res

foreclosing successive litigation of

the

whether or not relitigation of the claim raises

the

same

issues

532 U.S.

742,

generally

as

748

earlier

(2001).

refers

foreclosing

the

to

New

Hampshire

On the other hand,

the

successive

suit."

effect

of

litigation

of

Maine,

"[i]ssue preclusion

a

an

v.

prior

issue

judgment

of

fact

in

or

law

actually litigated and resolved in a valid court determination."
Id.

at

748-79.

Claim preclusion may bar

never

been

litigated

Miller & Edward H.
Jurisdiction

explained,

§

claim

the

(2d

ed.).

preclusion
from the

judgment

actually

decided."

18

of

matters

Alan

that

Wright,

have

Arthur

R.

Cooper et al., Federal Practice & Procedure,

4406

litigation arises
then

or

"litigation

bars

adjudicated

As

the

provides

same

cause

litigation

in

the

that,
of

not

earlier

Fourth

Circuit

"if

case,

later

the

first,
matter

as

of

but

the

every

action
only

has

also

of

every

claim that might have been presented." In re Varat Enter.,

Inc.,

81

Dep't

F.3d 1310,

1315

of Mental Health,
Taylor v.

(4th Cir.

640 F.

Sturgell,
preclusion

^merger'

and

consistently

Supp.

553

"[c]laim

1996);

U.S.

2d 729, 738
880,

describes

*bar'").

accorded

v.

Bullington,

United

"[F]ederal

preclusive

States,

330 U.S.

892

the

state courts." Allen v. McCurry,
Montana

183,

440
186

Martin-Bangura v.

(2008)

rules

effect
449

U.S.

(1947)).
8

(E.D. Va. 2009);

n.5

courts

Va.

(noting that

formerly

known

generally

to

U.S.

90,

147,

153

issues
95

see

have

as
also

decided

(1980)

(1979);

by

(citing
Angel

v.

Claim

final

preclusion

judgment

on

applies

if

three

merits

of

the

the

elements

suit,

(2)

causes of action in both the earlier and the

an

identity

of

parties

Newcom Holdings Party,

(E.D.

Va.

2005)

F.2d 1054,

1057

First,

or

Ltd.

(citing

their

(4th Cir.

privies

v.

an

"(1)

in

the

(3)

two

suits."

Supp.

369 F.

United

a

identity of

later suits and

v. Imbros Corp.,

Meekins

exist:

2d 700

Transp.

Union,

946

1991)).

the Court considers whether the same cause of action

underlies the previous lawsuits between the parties.

Circuit

has

adopted

whether

such

an

a

"transactional

identity

of

causes

approach"

of

action

The

to

Fourth

determine

exists.

"[T]he

appropriate inquiry is whether the new claim arises out of the
same transaction or series of transactions

by the prior
(4th

Cir.

judgment."

1990)

(internal

Harnett v.

Billman,

Complaint

makes

involved

the

Columbia

clear,

same

asks

Id.

this

note

and

Moreover,

dismissed
deed

of

Aldridge,

quotation

each

note,

property in question."
already

v.

800 F.2d 1308,

property.

explicitly

Keith

the

(Comp.

Davis'
trust.

1313

previous
same

deed

Indeed,

Court

to

in

marks

original

900 F.2d 736,
omitted)

action
of

filed

his

However,

2010

Davis brought the exact same claims

As

by

and

the

title

the

Davis

Complaint,
the

740

(quoting

1986)).

trust,

attempts

Bank,

the claim resolved

(4th Cir.

"adjudicate

at SI 11.)

OneWest

as

same

Davis
to

the

this Court has

to

invalidate

the

WL

538760,

*4.

at

against the exact

same parties
case

and

in

this

these

claims

makes

a

valid

P.C.

3:12cv781.

case

obvious

transaction:

No.

as

is

that,

that

each

in short,

the

of

No.

3:12cv781,

The

the

theory

actions

Davis

behind

arose

asserted

Davis'

from

case

the

same

Davis believes that OneWest does not have

note,

substitute trustee,

In

in

counterclaims.

claim to

to enforce

The only difference between that

could not

appoint

and therefore,

Samuel

OneWest

is

I.

not

White,

entitled

the note.

No.

3:12cv781,

this

counterclaims

could

provide

jurisdiction.

See

4061644.

not

generally

Thereupon,

the

Court

a

Fed.

Court

determined

basis

Nat'l

for

Davis'

subject

Mortg.

remanded

that

Ass'n,

the

matter

2013

action

to

WL
the

Goochland County General District Court.

Id. at *10. The General

District

final

merits

Court

in

subsequently

favor

Nat'l Mortg.
25,

2013)

did

present

of

Ass'n v.

(Goochland
his

District Court,
title."

OneWest,

Ex.

preclusive

Feb.

Kalos
23,

3.,

In

and

No.

County).

Support

at

4-5.)
In

Posner,

2011);

Davis,

a

did

CV12-405

The
to

Davis

record
the

judgment
not

(Gen.

the

appeal.

Dist.

indicates

Goochland

on

Fed.

Ct.

that

County

Nov.
Davis

General

but that the court lacked jurisdiction to "try[]

effect.
v.

Mae

counterclaims

(Memo.

see

Fannie

issued

re

of

Motion

Therefore,
Varat

Bethea

v.

Wells

10

Dismiss,

FNMA

and

neither judgment possesses

Enter.,

No.l:10cv73,

to

2011
Fargo

Inc.,
WL

81

761240,

Home

F.3d
*5

Mortg.,

at

1315;

(E.D.

Va.

Inc.,

No.

3:08cv680,
Fed.

R.

2009 WL 2001438,

Civ.

P.

41

*2-3

(E.D.

(a dismissal

for

Va.

July

lack of

10,

2009);

See

jurisdiction does

not operate as an adjudication on the merits).

However,

Davis'

still

precluded,

Bank,

F.S.B.,

claims

because

No.

against

both were

3:09cv699,

and

OneWest
parties

that

and
to

Fannie

Davis

judgment

201

Supp.

F.3d

2d 439,

521

525

442

n.2

(D.

Md. 2007)

(4th

Cir.

as

Davis

v.

as

U.S.A.,

see

2010

WL

an

Inc.,

(citing Andrews v.

2000));

are

OneWest

operates

"adjudication on the merits." Frank v. Home Depot,

481 F.

Mae

Daw,

538760,

at

n.

Moreover,

P.C.

and

insofar

its attorneys,

Ronald J.

lacked authority to

conduct

are

the

barred,

with the

because

firm's

alleges

client.

the

firm
As

Guillot,

its

Samuel

Jr.

foreclosure

and

the

that

attorneys

be

^so

identified

litigation that he
respect

to

the

in

has

subject

2005)

Jones

matter

Retirement

1997)).

v.

Plan,

foreclosure sale

is

to

note

the

a

SEC,

involved.'"
407

115

Because Samuel I. White,

enforce

with

in

claims
privity

stated,

w[t]o

the non-party

party

to

former

represents precisely the same legal right

Bancorporation

(citing

interest

those

are

be in privity with a party to a former litigation,
must

White,

and Eric White,

sale,

Fourth Circuit

I.

F.3d

F.3d

Martin

v.

Am.

651

(4th

Cir.

1180

(4th

Cir.

643,

1173,

P.C.'s authority to conduct the

inextricably bound with OneWest's
and

appoint
11

in

a

substitute

authority

trustee,

its

interests
lawsuit.

were
See

Claim

"adequately

represented"

during

the

first

an

action

id.

I

alleges

that

Fannie

Mae

could

not

file

for unlawful detainer without a claim to ownership.2 However,
this

Court,

against

Davis

the

note

Davis

merit.
his

in

did

complaint.

instruments

and
not

of

appeal
I

the

Claim

lacked

decision

rests

that

upon

factual

or

the

Davis'

or

legal

to

attempt

amend

validity

unsuccessfully

in

claims

of
Davis

the
v.

it is barred.

II

I. White,

validity

unsuccessfully

of

alleges

that

OneWest

lacked

the

filed

Davis

that
an

Davis claims that OneWest could not

P.C.

the

in

I alleges

wrongfully

held

enforce the note and appoint a substitute trustee.

Samuel

2 Count

trust

that

Based on these allegations,

direct

Bank,

challenged

Therefore,

Similarly
authority to

he

OneWest

deed

Claim

that

OneWest Bank.

v.

to

foreclose.

instruments
v.

OneWest

Fannie Mae

unlawful

Claim II

that
Bank.

he

action

challenged

Therefore,

and Samuel

detainer

rests upon

I.
in

White,
the

it

is

P.C.

Goochland

County General District Court. More accurately, the allegations
suggest
that
the
Goochland
County
General
District
Court
wrongfully exercised subject matter jurisdiction over the action
before
satisfying
predicate
requirements.
Although
such
allegations appear to implicate the Rooker-Feldman doctrine,
Davis managed to file this action in federal court just before
the General District Court awarded possession to Fannie Mae.
Because the doctrine requires the federal action to be filed
after the state-court judgment, the doctrine does not apply.
Davani v. Va. Dep't of Transp.,
2006)
(quoting Exxon Mobil Corp.
544 U.S. 280, 284 (2005)).
12

434 F.3d 712,
718 (4th Cir.
v. Saudi Basic Indus. Corp.,

barred.
I.

Claim II could also be interpreted to allege that Samuel

White,

P.C.

However,

lacked authority to conduct the foreclosure sale.

that

invalidity

argument

of

the

is

also

premised

instruments

that

unsuccessfully in Davis v. OneWest Bank.
the

previous

note,

and

action

therefore,

the foreclosure,

Claims
holder

of

action,

IV
the

substitute

present

validated

Davis

alleged

challenged

Because the decision in

OneWest's

I.

the

White,

right

P.C.'s

to

enforce

right

to

the

conduct

this claim is barred.

through
note,

trustee

the

Samuel

on

and

or

same

VII

allege

that

therefore

enforce

arguments

the

as

not

OneWest
entitled

note.

those

Claims

was
to

IV

advanced

in

not

the

appoint
through

the

a

VII

first

and they are therefore barred.

Claim VII also alleges that IndyMac induced him to sign the
note and "arbitrarily set his interest rate" above what he could
afford.

Moreover,

encouraged
advanced

"[un]balanced"

these

Claim VII

allegations

appears

to

allege

negotiations.
during

the

that

Davis

first

Fannie

could

action.

Mae

have

Therefore,

is barred.

Claim

XI

challenges

IndyMac to OneWest.
endorsed

Claim VII

from

the

validity

of

the

assignment

from

Davis alleges that the note was not properly

IndyMac

to

OneWest.

allegations in the first action.

Davis

Therefore,

13

made

these

precise

Claim XI is barred.

Similarly,

Claim

XII

challenges

alleges that OneWest

is not

allegations

in

advanced

and therefore,
3.

the

of

title"

and

holder of the note.

the

Again,

the

first

the

"chain

action

encompass

this

claim

Claim XII is barred.

Plaintiff Fails

to State a

Cause

of Action

Even if the above claims were not precluded,

the Complaint

lacks sufficient facts to state a single "plausible" claim.

The

Court will begin with the alleged federal questions.
A.

Claims VIII,

Claims

notice

to

VIII

IX, X: Violations of Truth in Lending Act

and

OneWest

IX

in

ignored the notice,

allege

that

2010

February

Davis

and

sent

that

thereby violating 15 U.S.C.

the Truth in Lending Act

provides that

a

rescission

OneWest
§ 1635.

simply

However,

"the obligor shall have

the right to rescind the transaction until midnight of the third
business
the

day

following

delivery

under

this

of

the

section

1635(a).

therefore,

Davis

he

sent

consummation

information
together

material disclosures
§

the

and

with

of

rescission

a

statement

required under this
received

his

the

the

forms

past

loan

the

or

required

containing

subchapter."

construction

rescission well

transaction

the

15 U.S.C.
in

2007;

statutory time

limit provided in section 1635(a).
If

forms,
1635(a),

Davis

and

did

the

then

not

receive

material

his

right

the

information,

disclosures
of

rescission
14

as

the

required

would

extend

rescission

by

section

for

three

years
15

678

after

U.S.C.

the

§

on

1635(f);

F.3d

271,

exercises

the

alleging

date

see

276-77

right

which

disclosure

Cir.

errors

however,

the

v.

when

and

(noting

he

or

seeking
Davis'

Complaint

does

was

Residential

2012)

rescind

years) . If that were the case,

timely;

transaction

Gilbert

(4th

to

the

consummated.
Funding,

that

she

a

borrower

sends

rescission

LLC,

a

letter

within

three

rescission might have been

not

allege

that

Davis

did

not receive the required documents and disclosures.

Moreover,

tender,

a

Mortg.

Davis

prerequisite

Corp.,

Section

"fails

2011

1635(b)

WL

transaction to

Mortg.

Network v.

interest

is

voided

payments made by
(3)

the

borrow

to
the

486

the

the
quo

of

ante.'"

820

three-steps:
borrower

tender

the

cancellation

and IX

July

is

v.

22,

involved
Id.

not

HSBC

2011).
in

the

(quoting Am.

(4th Cir.

(1)

to

the
liable

2007)).

security
for

any

the creditor has twenty days to refund any

loan contract." Shelton,

Claims VIII

Va.

ability

Brown

parties

connection with the
proceeds

of

Fourth Circuit follows the "majority view
notification

present

(E.D.

F.3d 815,

the borrower in

must

a

rescission."

*3

^status

through
and

(2)

TILA

restore

Shelton,

proceeds

further payments;

a

allege

3101780,

"seeks

credit

Rescission

to

to

does

not

486 F.3d at 821.

the

loan.

loan;

and

Id.

The

. . . that unilateral

automatically

void

For all these reasons,

lack sufficient factual allegations to

a plausible claim under the Truth in Lending Act.
15

the

state

Claim X asks the Court

to

"provide an

official answer"

on

the validity of the "312 Interpretation" of the Truth in Lending
Act

versus

the

declaratory
proceeds

Interpretation."

to

In

on

judgment

borrower

initiate

Declaratory
may

"123

Judgment

declare

the

whether

the

the

section

Act,

a

rights

1635(b)

"court

and

effect,

of

must

United

legal

seeks

a

tender

the

Under

process.

the

other

Davis

the

States

relations

interested party seeking such declaration." 28 U.S.C.

.
of

any

§ 2201(a).

" [D] eclaratory judgments are designed to declare rights so that

parties
Hipage

can
Co.

Va. 2008)
Co. ,

386

conform their
v.

Access2Go,

conduct to
Inc.,

(citing Volvo Const.
F.3d

581,

593-94

589

F.

Equip.

(4th

avoid

Cir.

future

Supp.

N. Am.,
2004)).

2d

litigation."

602,

615

Inc. v.

CLM Equip.

Thus,

declaratory

judgments "are untimely if the questionable conduct has
occurred or

damages

N.A.,

Supp. 2d 689,

718

F.

have

already accrued."

(E.D.

Tapia

v.

already

U.S.

Bank,

695 (E.D. Va. 2010).

Davis asks the Court to "correct" the OneWest attorneys and
alleges

law.
the

various

Therefore,

injuries

2d

at

by

their

interpretation

it is clear on the face of Davis'

"questionable

Supp.

caused

conduct

695.

His

has

already occurred."

request

for

declaratory

of

the

Complaint that
Tapia,

718

judgment

F.
is

untimely and such judgment would not assist the parties to this
action

"conform

their

conduct

16

to

avoid

future

litigation."

Because

declaratory

Claim X

is dismissed.

B.

judgment

this

stage

is

inappropriate,

The Remaining Claims

Although

Davis

has

"federal questions,"

as to

at

the federal

labelled

Claims

his

allegations

XI,

fail to

XII,

and

claims

doubtful.

laws that the defendants purportedly violated

Because

assert
the

state

law

Complaint

violations

does

not

and

allege

At best,
even

a

the

that

valid

§

1331,

the

Court

may

decline

to

exercise

is

claim

that would give this Court original jurisdiction pursuant to
U.S.C.

as

provide any detail

or federal rights of which Davis has been deprived.
remaining

XIII

28

jurisdiction

over parties joined under Rule 20 if the original claim is based
on

diversity

inconsistent
1332.

28

and
with

U.S.C.

if
the

§

exercising
jurisdictional

1367(c).

The

the

Truth

dismissed.

However,

discretion

to

in

Lending

address

the

be

section

not

do

of

clearly

subject matter jurisdiction

Act

section 1367(c)

would

requirements

pleadings

establish that the Court would have

absent

jurisdiction

claims,

which

have

been

does provide the Court with

remaining

claims,

and

so

the

Court

will proceed to the remaining claims.
(i)

As

noted

Claims I and II

above,

Claims

unlawfully enforced the note;
I.

White,

P.C.

to

conduct

the

I

and

II

allege

that

OneWest

OneWest unlawfully directed Samuel
foreclosure

17

sale;

and

Fannie

Mae

and

Samuel

unlawful

County.

I.

White,

detainer

However,

in

the

P.C.
the

wrongfully

General

Complaint

filed

District

alleges

no

an

Court

facts

action

for

in

for

Goochland

support

of

the conclusory assertion that OneWest was not the holder of the
note.

Under Claim II,

the Complaint

fails to

sufficiently plead

an ulterior purpose or "an act in the use of process not proper
in the regular prosecution of the proceedings as needed to state
a claim for abuse of process." Donohoe Const.
Vernon Assocs. , 235 Va.

531,

539

Co.,

(1988) . Instead,

Inc. v. Mount
Davis attached

two documents to the Complaint without explanation as to how the

documents

might

support

a

"reasonable

inference"

violated Virginia Code section 8.3A-203.
& C).

Moreover,

his

that

(Compl. at SI 36,

"show-me-the-note" claims

OneWest

Exs. B

run "contrary to

Virginia's non-judicial foreclosure laws." Brown v. HSBC Mortg.
Corp.,

No. I:10cvl427,

2011 U.S.

Dist.

LEXIS 80943,

*5

July 22, 2011). As explained by this Court,
a noteholder is not ^required to come to a
court of law and prove its authority or
standing to foreclose on a secured property'
so too a nominal beneficiary or a substitute
trustee . . . should not be required to
prove in court that it has the noteholder's
authority. To conclude otherwise would allow
borrowers to compel judicial intervention in
any foreclosure proceeding where a deed of
trust

has

changed

hands

trustee has been appointed.

or

a

substitute

(E.D. Va.

Pham v.

Bank of

N.Y.,

(citing

Horvath

v.

Cir.

2011)).

As
about

to

In
for

Claim I,
law

addition,
Samuel

Fannie

by

filing

I

1:4

P.C.

the

facts

that

would

that

allow

inference"

that

Guillot

641

fails

(E.D.

F.3d

Va.

617,

2012)

623

(4th

filed

provide any details

Samuel

action

for

Ronald

an

White,

unlawful

Guillot,
in

court

P.C.

detainer.

an

attorney

violation

"unlawfully

However,

the

I.

affidavit

Davis

the

to

and

that

filed

stating

810

is dismissed.

withholds" the Columbia property.

any

N.A.,

Mae

alleges

White,

Rule

N.Y.,

2d 804,

the Complaint

Claim
I.

of

Supp.

Claim II

that

violated

Virginia

Bank

Therefore,

the

allegedly

856 F.

detains

of

and

Davis fails to allege

to

make

affidavit

a

"reasonable

without

the

good

faith required by law.
Because

these

"naked

assertions"

enhancement" required by Twombly and

lack

Iqbal,

the

"factual

the Court dismisses

Claim I.

(ii)

Claim
OneWest

Claim III

III

and

appears

Fannie

intentionally

a

letter

Mae

In

that

aspects

emotional
support,

following

purportedly outside the

allege

in

inflicted

defrauded the Court.

him

to

the

of

Miller,
the

distress

Davis alleges

foreclosure

scope of

who

represented

previous
on

Davis

and

that Miller sent

sale,

her representation,

which

was

and refers

broadly to his Opposition to Motion to Dismiss from No.
19

actions,

3:12-cv-

00781.

(Compl.

Ex.

H.)

He

also

refers

behalf of Miller by Morris & Morris,

In

Virginia,

conduct
and

is

Russo

are

v.

plead

reckless;

connected;

and,

Va.

23,

215 Va.

338,

342

(1974)).

to

was

outrageous

catalogue
pleads

Miller's

alleged

averring

that

that

actions

of

or

injury.

the

to

his

an

reasons,

he

infliction

23,

28

for

Davis

does

between

judgment,

the

reasons

stated

v.

allege that

does

and

conduct

he

linking
distress,

aggravating"

action."
his

Davis

Further,

tormented

specific to

is

Womack

emotional

eviction

which

severe."

purportedly

be

Miller's

is

nor

"insulting

impending

emotionally

not

distress.

would

outrageous

(citing

Davis does not request damages.

requests declaratory
circumstances

distress

purported

was

wrongdoer's

is

and

intolerable,

individual

connection

In addition,

the
(1991)

Complaint does not plead any facts
injury

conduct

causation

conduct

average

fears

of

submitted on

"the

conduct

substantiate his

chain

Miller's

"the

propagated

a

or

26

and

brief

that

the

wrongful

241

cursorily

and

must

alleged

causally

conduct

attempt

the

or

a

P.C.

White,

Eldridge,

the

plaintiff

intentional

intolerable;

distress

a

to

by

the

But

the

own alleged
and

his

Instead,

own
he

inappropriate under the
above.

For

all

these

fails to state a plausible claim for the intentional
of

(1991)

emotional

distress.

See

Russo

v.

(noting that conclusory allegations

20

White,

241

Va.

The Complaint certainly does not include sufficient factual
allegations
somehow
action

to

defrauded
that

fraudulent.
to

Davis

not

support

after

a

took

the

in

with

constitutes

state that
538760,

a

that

122,
v.

at

to

the

*4

under

Rollins

(D.C. Cir.
&

481

Howell

F.

2012)
Co.,

Supp.

2d

41(b)
v.

were

at

in

does

that

does
letter

that

442.
21

the

Davis,

Counts I,
grants

"unless

J.,

1178,

as

a

as

2010 WL

state

Rule
an

any

12(b)(6)

adjudication

dismissal

Servs.,

Inc.,

concurring);

the

not

II, and III are

the

1180

states

and does

to

was

statement

opinion

fails

^operates

And,

this

dismissed

Wackenhut

F.2d

3:10-cv-699,

prejudice.

court

(Kavanaugh,
872

No.

Plaintiff

dismissal

Rule

was

filed on by Miller.

However,

without

district

that

otherwise.'"

132

Frank,

dismiss,

letter

Complaint

Nothing

alleges

. . . Accordingly,
a

that

the

to a brief

claims
was

infer

any

that Miller wrote

However,

Davis.

identify

reasonable

to

Miller

in Claim III.

("Accordingly,

"When

merits"

Bell

to

Davis

Davis'

the dismissal

dismissed.").

states

could

H

that

clearly

a letter

Exhibit

misrepresentation.

actionable claims.

on

not

sale.

refers

prejudice.

clearly

motion

to

allegation

she states that Davis v. OneWest,

dismissed

quite

Court

accusations

also

does

refers

from Miller

Complaint

Therein,

the

record.

substantiates Davis'

The

that

He

foreclosure

the

letter

conclusory

Court.

The Complaint

appear

include

she

the

the

(4th

703

F.3d

see Shoup

Cir.

Supreme

order

1989);

Court

has

explained,

"an adjudication on

dismissal
Corp.,
Rule

with prejudice.

531

U.S.

12(b) (6)

497,

that

prejudice operates as
reasons,

Semtek

505

does

the merits"

(2001).

not

Claims

of

V,

VI,

V, VI,

and VII

contract

arguments

that

under

with or without

For

all

these

and VII

recast

was

Davis'

"show-me-the-note"

Davis does not clearly plead the

were

that OneWest

OneWest

improperly

trustee

impartially.
enhancement"

Claim

pursuant

is

dismissal

breached,

not

the

but

instead

holder of

the

repeats

note and

not entitled to enforce it. Claim V adds an assertion

substitute

193.

it

a

Lockheed Martin

a dismissal with prejudice.

Claims IV,

IV,

the

therefore,

that

v.

Therefore,

state whether

claims as breaches of contract.

his

Inc.

Claim III will be dismissed.
(iii)

terms

Int'l

is synonymous with a

to

and

However,
to

VI

appointed

these

that

he

reiterates

the

Truth

in

Samuel

does

"naked

Samuel
I.

not

Lending

White,

As

P.C.

P.C.

any

Francis,

allegation

Act.

White,

provide

assertions."

Davis'

I.

that

noted

acted

"factual

588

he

as

F.3d

at

rescinded

above,

Davis'

Truth in Lending Act claims are not timely and are inadequately
pleaded.

Claim

VII

adds

an

argument

that

IndyMac

fraudulently

induced him to sign the note.

As explained above,
me-the-note
foreclosure

theory
laws.

as

Pham,

courts have "widely rejected" the showcontrary
856

F.

to

Supp.
22

Virginia's
2d at

810

non-judicial

(citing Gallant

v. Deutsche Bank Nat'l Trust Co.,
Va.

2011)).

matter of
claims

Therefore,

law.

in

As

a

Davis

is

to

amount

to

the

Court

result,

Supp.

entitled to

(iv)

Davis'

721

IV through VII

"show-me-the-note"

legal conclusions
cannot

relief

2d 714,

(W.D.

IV through VII are dismissed as a

To the extent that Claims

addition

allegations

Claims

766 F.

draw

a

and those

present

claims,

the

and lack particularity.

reasonable
claims

will

inference

that

be dismissed.

Claims XI and XII

Claim XI

avers that the assignment of the note from IndyMac

to OneWest was not properly notarized and generally alleges that

Miller

allowed

ineffective

her

client

assignment.

misinterpreted

the

to

enforce

Claim

U.C.C.

and

XII

a

note

avers

Virginia

Code

despite

that
title

an

Miller

8.3A,

and

allowed her client to enforce the note unlawfully.

First,

the

to the extent that Davis requests "nominal damages,"

allegations

standard

set

unadorned,

Iqbal,

forth

the

556

Miller's

contained

at

(Compl.

favorable

to

process.

678.

Davis

at SIf 140-43,

Davis,

Claims

the defendants

Davis

8,

interpretations

opinions.

contend that

Rule

do

not

which

meet

"demands

the
more

defendant-unlawfully-harmed-me

U.S.

legal

in

therein

contended

as

XI

alleges

and

that

then

144-50.)
and XII

he

he

23

under

than

an

accusation."

"disagreed" with

sets

forth

his

own

Taken in the light most
might

be

interpreted

abused the non-judicial

much

pleading

Claim

II.

to

foreclosure

However,

he

does not clearly plead an

the process,
elements.

have

ulterior motive or

Donohoe,

roundly

235

Va.

rejected

as

foreclosure

Pham,

539.

his

plainly

laws.

at

contrary
856

As

explained

above,

"show-me-the-note"

F.

to

Supp.

v. Deutsche Bank Nat'l Trust Co.,

theory

Virginia's
2d

766 F.

at

810

Supp.

courts

of

non-judicial

(citing Gallant

2d 714,

721

(W.D.

2011)).

Second,
seeks

the

Complaint

declaratory

explained,

is

improper use of

and Virginia law requires plaintiffs to plead both

impropriety

Va.

an

Supp.

[and]

2d

at

constitute

entitlement
XI

damages

695.

to

that

Davis

instances.

primarily

As

already

questionable
already

the

sufficient

between

are

conduct

accrued."

allegations
and

"factual

possibility

Francis,

588

has

Tapia,

contained

"naked

F.3d

718

...

plausibility
at

193.

F.

therein

assertions

enhancement

and

already

of
to

of

Therefore,

dismissed.

Claim XIII

Claim XIII

baldly

both

conclusions

relief."

and XII

the

have

legal

line

(v)

enforced

in

"the

Finally,

without

the

Claims

because

mere

wrongdoing"

cross

judgment

clear

declaratory judgment at this stage of the proceedings

inappropriate

occurred

makes

avers

note

asserts

and

that

that the defendants
foreclosed

the

on

defendants

his

jointly and severally
home

lied

to

in

bad

him

faith.

and

various courts that these parties have appeared before.
24

to

He

the

He does

not identify any common law,

the

defendants

owed

and

the

contains

claim

assertions.

him;

Because

"heft"

to

push

Court

dismisses

the
no

the

the

Davis

additional

claim

from

Claim

also

or statutory duty that

claim makes

to

lack

Nemet

F.3d

requests

other allegations;
supplement

sufficient

"conceivable

XIII.
591

no

facts

allegations

Consumeraf fairs. com, Inc. ,

Moreover,

contractual,

to

256

declaratory

factual

plausible,"

Chevrolet,

250,

his

(4th

the

Ltd.
Cir.

judgment

v.

2009).

under

this

claim, which is inappropriate for the reasons stated above.
CONCLUSION

For

(Docket

the

No.

foregoing

13)

DISMISS

filed by

(Docket

Federal

reasons,

National

No.

Samuel

I.

filed

by

16)

Mortgage,

DISMISS COMPLAINT
DISMISS

PURSUANT TO

No.

29),

No.

ERIC

WHITE'S

R.

P.C,

OneWest

J.

DISMISS COMPLAINT

the

Bank,

GUILLOT,

JR.'S

MOTION
F.S.B.
MOTION

TO
and
TO

DEFENDANT AMY MILLER'S MOTION

45) will be granted.

and

FED.

25),

TO

White,

RONALD

(Docket No.

TO

the MOTION

MOTION

For the foregoing reasons,
MOTION
Davis,

FOR INJUNCTIVE RELIEF
the

DEFENDANTS'

(Docket

No.

SANCTIONS

MOTION
FAILURE

20)

AGAINST

FOR
TO

filed

CIV.

P.

TO

(Docket No.

RESPOND

FEDERAL

(6)

(Docket

COMPLAINT

DISMISS

AND

(Docket

it is unnecessary to address the

EXPEDITED

by

12(b)(1)

TO

Michael
NATIONAL

25

5)

filed by Michael

DISCOVERY

MOTION

D.

FOR

Davis,

MORTGAGE

AND

NOTICE

INJUNCTIVE

the

OF

RELIEF

MOTION

ASSOCIATION

D.

AS

FOR
PER

RULE

37

(Docket

No.

48)

FOR SANCTIONS AGAINST

50)

I.

Michael

AS

WHITE,

D.

PER

MOTION

No.

RONALD GUILLOT

filed by Michael

SAMUEL

RULE
FOR

59)

37

AS

the

PER

by

AGAINST

AMY
D.

Davis,

AGAINST

AS
the
AMY

as

filed by Michael

ERIC

37

(Docket

WHITE

Davis,

RULE

MILLER

D.

RULE

37

No.

filed by Michael
AS

the

PER

the

MOTION

(Docket

51)

AS

37

(Docket
WITHDRAW

PER

RULE

D.

filed

They,

the

(Docket

49)

filed

THE

therefore,

BANK

SANCTIONS

No.

37

37

by

FOR

MOTION

(Docket

and the MOTION TO CORRECT

Davis.

No.

Davis,

RULE

MOTION

TO

MOTION

filed by Michael D. Davis,

56)

58)

D.

PER

PER

Davis,

FOR SANCTIONS AGAINST ONEWEST

AGAINST

Michael

MILLER

Michael

No.

AS

D.

the MOTION FOR SANCTIONS AGAINST

RULE

MOTION

(Docket

SANCTIONS

filed

SANCTIONS

D. Davis,

PC

Davis,

filed by Michael

No.

by
FOR
62)

(Docket No.

will be

denied

moot.

It

is

SO ORDERED.

/s/

4it

Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date: April 21, 2014

26