Prescott v. PHH Mortgage Corporation et al

Filing 49

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/7/2017. Copy mailed to Pro Se Plaintiff. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

PATRICIA A. PRESCOTT,
Plaintiff,

v.

Civil Action No. 3:16cv288

PHH MORTGAGE CORPORATION,
et al.,
Defendants.

MEMORANDUM OPINION
This matter is before the Court on the PLAINTIFF'S MOTION
FOR SUMMARY JUDGEMENT
dismiss

filed

by

the

MOTION TO DISMISS
CORNER,
16)

[sic]

Defendants:

(ECF No.

9)

filed

PHH

and several motions to
MORTGAGE

25)

and

the

Professional

the

reasons

SPROUSES

PLAINTIFF'S COMPLAINT

(ECF No.

and the MOTION TO

Foreclosure

forth

below,

CORPORATION'S

DEFENDANT,

DISMISS

jointly by Defendants Shapiro,

(ECF No.

set

44)

("PHH Mot."),

LLC' S MOTION TO DISMISS

("Sprouses Mot."),

granted,

(ECF No.

Corporation

the

of

Defendants'

("PCF Mot.")
Brown,

& Alt

Virginia.

motions

the Plaintiff's motion will be denied as moot,

For

will

be

and this

action will be dismissed.

BACKGROUND
Patricia
June

6,

Prescott

2016.

Defendants,

but

(ECF
only

filed

No.

the

Complaint -in

4) .

The

Complaint

four

have

been

this

names

properly

a

action

on

number

of

served

in

this

case:

PHH

Mortgage

Foreclosure
Alt

Corporation

Corporation

of

Virginia

("Shapiro"),

and Sprouses

Defendants

(hereinafter

four

motions to dismiss.
facts

alleged

in

("PHH") ,

the

("PFC"),

Corner,

LLC

Professional

Shapiro,

Brown

&

("Sprouses") . 1 These

"Defendants")

have

all

filed

For purposes of determining the motions, the

the

Complaint

must

be

assumed true,

and the

Complaint must be read liberally in light of Prescott's status
as a pro se plaintiff.
( 2007)
be

("[A]

held

to

See Erickson v.

pro se complaint,
less

stringent

Pardus,

551 U.S.

89,

94

however inartfully pleaded, must
standards

than

formal

pleadings

drafted by lawyers.").
A. Relevant Facts

Prescott purchased the property in question in December of
2003,

secured by

a

Deed

of

Trust

and

Note

in

the

amount

of

$130,000.

(Compl.

the loan,

and Prescott made timely payments to them until 2009.

(Compl.

12) .

<JI

<JI

4). At some point PHH became the servicer on

In 2008,

loan modification.

Prescott applied for but was denied a

(Compl.

<JI

14).

1

In November of 2009,

Prescott

The other Defendants were LOGS Corporation, Gerald Alt, R. Alan
Anderson, Kristine Brown, John Burson, J. Cabell Metts III, and
Gerald Shapiro.· Summons was returned unexecuted as to Anderson,
and it was neither prepared nor issued as to the others. (ECF
Nos. 5, 8) . Because these Defendants were never successfully
served with process, they will be dismissed from this case.
Moreover, because the Complaint asserts no independent federal
claims against these Defendants apart from those dismissed by
this
Memorandum
Opinion,
the
dismissal
of
the
unserved
Defendants must be without prejudice.

2

and

PHH

entered

into

a

"vaguely

period loan modification program.
After
terms

of

the
a

trial

new

program

specified"
<JI~

(Compl.

concluded,

loan modification offer

six-month

trial-

13-15).

Prescott

received

the

in April of 2010,

but

rejected them because "the terms were not as previously agreed
to and did not place the Plaintiff's
original

than

the

that

she began making back payments,

amount owed,
current,

note."

(Compl.

[sic]

in a better position

15-16).

l)I<JI

Prescott

made inquiries

alleges

as to the

and submitted double-payments in an attempt to get

but that

PHH did not

"properly account

submitted after April, 2009." (Comp.

for any money

16).

!)I

Prescott specifically alleges that PHH did not account for
a series of payments made in May and June of 2010
of

$850,

contends

$425. 91,
that

$850,

PHH' s

and

failure

$425).

to

these

motion their claim of delinquency." Id.
she

continued to

accounting,

checks

her

because

amount

to

clear default."

despite

Compl.

at

<JI'll

they provided

(ECF No.

Between

29,

December

Prescott

payments

"put

the

beginning in December of 2010,

returning

21-22.

20).

an

PHH began

"[i] nsufficient

Attach.

2010

improper

and

20);

22-24).

Prescott

In the

filed

in

attachments
response to

to the

"Addendum"

the motions

3

see

February

three checks were returned to Prescott for that reason.
<JI<JI

in

She further claims that

submit monthly payments

but that,

~

(Compl.

credit

(four payments

2011,

(Compl.

(ECF No.

to dismiss,

also

29)

letters

from PHH to Prescott indicate that a fourth check dated March 1,
2011 was also returned (as it was approximately half of what PHH
alleged at the time was due).
of

2011,

Shapiro

(ECF No. 29, Attach. 24). In April

informed Prescott

intended to foreclose.

(Compl.

CJI

on behalf of

25)

PHH that

PHH

Although Prescott disputes

that PHH was the noteholder at this time, the documents that she
attached to her addendum confirm that PHH was the holder.

(ECF

No. 29, Attach. 27). Despite the foreclosure letter, foreclosure
did not occur on Prescott's property until after a second letter
received in 2013.

(Compl.

Between April
that

PHH

(which

fraudulently
rescission

that

2011

was

filed

satisfaction.
attachments

of

35-36).

CJICJI

and

still

notices

replaced

(Compl.

CJI

provided

June
being

of
a

of

2013,

Prescott

represented

assignment

previously

and

filed

by

a

claims

Shapiro}

document

of

certificate

of

27-33). 2 Notwithstanding this claim,
in

Prescott's

Addendum

(ECF

No.

the
29)

indicate that the Document of Rescission was filed in April of
2011 in order to correct a certificate of satisfaction that had
been executed in error (by Bank of America, which never held the
property and swore as much in the Document of Rescission) .

(ECF

No. 29, Attach. 30-31).
2

This portion of the Complaint is especially difficult to
decipher.
It
includes
rhetorical
questions,
conflicting
assertions, and is contradicted by the documents filed in the
Addendum. (Compl CJICJI 27-33).

4

Prescott
17,

2013

received a

(but

advertisement
Dispatch.

second foreclosure

allegedly

of

the

(Compl.

sent

July

35-36) .

29,

was

foreclosure

<Jr<.II

letter

placed

Prescott

dated
and

2013)'

filed

modification attempt" with PHH on "October 21,

in

the

a

July
an

Times-

final

"loan

2014, " 3 but the

foreclosure sale proceeded and she received an eviction letter.
~~

(Compl.

37,

acquired the
trustee.

43). Sprouses was the high bidder at auction and
property.

(Compl.

Prescott

(Compl.

c:!I

41).

PFC was

the

substitute

44).

~

alleges

that

the

sale

to

Sprouses

violated

the

terms of the Deed of Trust and the terms of the advertisement of
sale,
last

which

respectively

advertisement

November

14,

for

2013.

required
the

sale within

property
~c:!I

(Compl.

and

30

days

within

37-40).

The

15

basis

of

the

days
of

of
this

allegation appears to be that the Substitute Trustee's Deed was
not recorded within those timeframes.
she

contacted

the

substitute

Id.

trustee,

Prescott states that
PCF,

settlement was due to occur on November 29,

was

2013,

On
Court

December

for

13,

2013,

Chesterfield

and that she

45).

c:II

Prescott

County

that

. and secured

then "ceased attempts for a loan modification .
legal representation." (Compl.

told

in

3

an

appeared
action

in
that

the

Circuit

resulted

in

It is likely that this is a typo in the Complaint, and that the
date intended was "October 21, 2013."

5

Sprouses obtaining an irrunediate writ of possession,

albeit one

(according to Prescott) "based on fraudulent documents."
~

to

(Compl.

46). Prescott specifies that the writ was "authorized pursuant
a

trustee's

deed following

had not recorded the deed,

foreclosure,"

but

that

Sprouses

and otherwise "did not have a signed

and/or notarized valid copy of a trustee's deed on November 21,
2013,

when he swore to the

surrunons."

(Compl.

4 7) .

~

She also

asserts that Sprouses has continued to assert legal ownership of
the property into 2015, despite reselling the property, and thus
has "defrauded not only the Plaintiff, but every person willing
and able to purchase the property." (Compl.
The

property

transaction

was

was

re-sold

recorded

of

2014,

and

that
55).

2014.

(Compl.

~

Plaintiff's

equity

in

April

property,

but asserts that it "falsely represent [ed]" the true

that

she

deserved.

she had the

funds

time of foreclosure,
(Compl.

~

in

Complaint)

the

56);

Court
Attach.

to

consider
25-32).

(Compl.

~

the

Prescott maintains

58).

to satisfy her debt

completely at the

but was not given the opportunity to do so

however,

Prescott's Addendum

for

1,

received

that

check

February

4 9) .

Prescott

amount

a

on

in

~

are

this claim

(and many other allegations

refuted

the

(ECF No.
for

by

29),

purposes

Prescott

claims

6

documents

provided

in

which Prescott has asked the
of

these
"this

motions.
complaint

(Id.
is

at

1,

timely"

because

"the

debt

has

not

been

properly

adjudicated"

"because fraud is present and ongoing." (Compl.

<]I

and

58).

B. Procedural Posture

The Complaint

(ECF No.

contains numerous

4)

allegations,

which stem directly or indirectly from a foreclosure sale that
took place on November 14, 2013.

(Compl.

<]I

41) . Prescott asserts

that the foreclosure occurred after her attempts to satisfy her
debts

were

ignored,

and

that

the

foreclosure

itself

was

accomplished through fraud and in violation of a number of state
and federal statutes. In response, the Defendants have filed the
pending motions to dismiss,

seeking dismissal of the action on

several grounds, including that the Complaint fails to state any
claim

upon

Prescott's

which
claims

relief

can

(including

be
all

granted,
of

her

and

that

federal

many

claims)

of
are

time-barred. 4 Prescott has filed five documents in opposition to
the motions to dismiss

(ECF Nos. 29, 32, 33, 34, 43), but admits

that her federal claims "may not procedurally be timely."

(ECF

No. 33 at 6.).

4

PHH and Sprouses have also challenged the Court's subject
matter jurisdiction under the Rooker-Feldman doctrine pursuant
to Fed. R. Civ. P. 12 (b) (1), but that doctrine does not apply
here. Prescott has not sought review or reversal of the state
court judgments attached to the Defendants' motions, nor has she
complained of any injury sustained from them. Lance v. Dennis,
546 U.S.
459,
464
(2006).
The Defendants'
arguments thus
conflate Rooker-Feldman with the doctrine of preclusion. Id.
7

The Defendants have each requested a hearing for argument
on their motions to dismiss

(ECF Nos.

22,

28,

39); however,

the

briefs and responses that have been filed adequately present the
dispute,

and

reaching

a

further

decision.

argument
Thus,

its discretion under Fed.
merits

of

below,

the

the

not

aid

the Court denies
R.

Defendants'

motions

would

Civ.

Pro.

78,

those

Court

in

requests

in

and proceeds to the

motions.

For

the

granted

will

the

and

reasons

this

set

action

forth

will

be

claims

in

dismissed with prejudice.
DISCUSSION

By her
her

own

Complaint.

however,

is

U.S.C.

§

Prescott
~':[

(Compl.

based

1331;

Specifically,
claims

count,

28

only

asserts

59-80).

on

thirty-five

Jurisdiction

Prescott's

U.S.C. § 1367;

federal

see

also

in

claims.
Compl.

against

the

Defendants

under

See
at

28

':II 3.

(RESPA),

the Truth in Lending Act

(TILA),

of these claims

is

the

Fair

Debt

defective

12 U.S.C. § 2601 et. al., and
15 U.S.C.

§

1601 et.

for multiple reasons,

them are

time-barred by the

relevant

limitations

PHH Mot.

at 2;

at 1-2;

PSC Mot.

deficiency

Sprouses Mot.
appears

considered

in

Collection

15 U.S.C. § 1692 et. al., the Real Estate

Settlement Procedures Act

properly

case,

jurisdiction in this case is based on Prescott's

Practices Act (FDCPA),

that

this

on
a

the

motion

8

face

of

seeking

the

al.

Each

but all of
periods.

at 1-2.

Because

Complaint,

dismissal

See

under

it

is

Rule

12(b) (6).

See

Richmond,

Fredericksburg

& Potomac

R.

Co.

v.

Forst, 4 F.3d 244, 250 (4th Cir. 1993).
A. Fair Debt Collection Practices Act (FDCPA) Claims

Prescott's

claims

under

the

FDCPA derive

from

paragraphs

59, 61, 62, and 64 of the Complaint. The substance of this claim
is

that

PHH

accepting

to

payments)

statements

in

(Compl.

~~

of

dates

the

failed

validate

and

made

connection

her

false

with

the

debt
and

(by

not

otherwise

collection

misleading

of

her

asserted,

however,

foreclosure

the

conduct

in

question

all

sale in November of 2013,

and

the Prescott's Complaint was not filed until June 6,

15

debt.

59-64}. Even under the most charitable interpretation

occurred before the

No.

properly

2016

(ECF

4}. The statute of limitations under the FDCPA is one-year.
U.S.C.

§

1692k(d}.

Therefore,

Prescott's

FDCPA

claims

are

time-barred and will be dismissed.
B. Real Estate Settlement Procedures Act (RESPA) Claims

In paragraphs 59, 61, 64, and 67 of the Complaint, Prescott
can charitably be understood to be asserting claims under RESPA.
As best the Court can tell, the source of these claims appear to
be that PHH failed to respond to a qualified written request as
required

by

12

U.S.C.

§

2605(e)

respond to borrower inquiries"),
for

payments.

(Compl.

':Il

59-61).

("Duty

of

loan

servicer

to

and failed to properly account
Although

the

Complaint

also

appears to claim that PCF and Shapiro are responsible for these

9

violations, 5 they are not "lenders" or "servicers" and have not
been

alleged

to

be

by

exists against them.

Prescott;

therefore,

See 12 U . S . C .

§

no

2 60 5 (i ) (2 ) .

viable

claim

In any event ,

Prescott's RESPA claims are also time-barred.
Prescott

alleges

numerous times,
response.

that

she

on the phone,

{Compl.

<JI

"asked

[for

an

accounting]

and in writing" but received no

67) . The only specific written requests she

mentions, however, are a letter to Shapiro she alleges was dated
April

25,

Prescott

2011
has

and

not

a

letter

included

to

PHH

enough

dated

detail

December

in

her

9,

2010. 6

Complaint

to

determine if any of these communications were "qualified written
communications"
§

2605 (e) (1) (B),

barred.

year) .

under

RESPA

obligations,

RESPA

is

See

see

12

U.S.C.

but any action arising from them is now time-

The statute of limitations for a

U.S.C. § 2605
one

triggering

three
12

years

U.S. C.

expired

§

(and for
2 614.

approximately

RESPA claim under 12

all

Thus,

other RESPA claims,
any

three

potential

years

action

before

the

5

It is difficult to discern against whom Prescott is asserting
particular claims, because the Complaint does not specify to
whom it is refers when it uses the term "Defendant" or
"Defendants." The Complaint also uses personal pronouns ("he"
and "they," primarily) without corresponding antecedents.
6

Prescott also reports that she made a request in 2013, but does
not provide further detail regarding when, in what form, and to
whom the request was sent. (Compl. SI 64) . Prescott also admits
that she received a response to that request. Id.

10

Complaint.

Therefore,

Prescott's

RESPA

claims

are

also

time-

barred and will be dismissed.
C. Truth in Lending Act (TILA) Claims

Prescott also alleges that
TILA

"[b]y

account,"
claiming

failing

by

not

amount

to

notify

accepting
owed."

PHH violated "Regulation Z" of
the

Plaintiff

payments,

(Compl.

and

59) .

<JI

actions took place in 2010 and 2011.
Regulation

Z,

like

most

statute of limitations.
§

226 .1 (e);

of

TILA,

See 15 U.S. C.

12 CFR 1026 .1 (e) .

"[b]y

All

(Compl.
is

of

these
20-24,

governed
164 0 ( e) ;

Therefore,

suspense

falsing

of
<JI<JI

a

by

a

[sic]

alleged
60) . But
one-year

see also 12 CFR

Prescott's TILA claims

are also time-barred, and will be dismissed. 7
D. Remaining Claims in the Complaint

For the reasons set forth above,
Complaint will be dismissed.
this
TILA,

conclusion.
RESPA

and

See ECF No.
other

several
make

it

slices

of

the

dispositive

Notably,
33

mortgage

procedurally be timely [.] ") ;

at

Prescott has not disputed
6

see also

id at

specific issue of
violations
5

("The

time-barred,

[sic]

fraudulent

7

("The

servicing

pie may be
of

the federal claims in the

behavior.");

id.

may
fact

not
that

does

not

at

8-9

Prescott's specific TILA claims involve 12 CFR 1026. 34 and
12 CFR 1026. 41, regulations that did not go into effect until
January of 2014, well after the conduct alleged in this case.
(See
PHH Motion
9).
Prescott now admits
this
additional
deficiency in her claim. (ECF No. 33 at 8).

11

(asking the

Court

to

treat

the

alleged

federal

violations

as

evidence of the "larger case of fraud" since "the letter of the
law many not allow for conviction.''). Like the federal claims in
the Complaint, it appears that Prescott's Virginia statutory and
common-law claims also fail to state plausible claims upon which
relief can be granted for multiple reasons.

However,

the Court

need not rule on each individually because it has dismissed all
claims over which it had original
§

jurisdiction.

See 28 U.S.C.

1367 (c) .
Because

of

the

questions

federal

presented

in

the

Complaint, jurisdiction over the related state claims was proper
pursuant to the Court's supplemental jurisdiction. See 28 U.S.C.
§

1367. However,

federal

question,

having dismissed all those claims presenting a
only

state

discretion under 28 U.S.C.

§

claims

remain.

Pursuant

to

its

1367(c) (3), the Court elects not to

exercise its supplemental jurisdiction over any of those claims
because there is
Inc.

v.

HIF

Bio,

no basis to do
Inc.,

556

so.

U.S.

See also Carlsbad Tech.,

635,

636

(2009).

Thus,

the

remaining claims in the Complaint will also be dismissed and the
Defendants' motions will be granted.
claims

will

be

without

Dismissal of the state law

prejudice,

reasserting them in state court,
appear to be legally insufficient.

12

subject

even though the

to

Prescott

state claims

CONCLUSION
For

the

reasons

MOTION TO DISMISS
MOTION

TO

(ECF No.

DISMISS

all

state

federal

law

dismissed

JUDGEMENT [sic]

will

s

will
be

Complaint,

MORTGAGE

CORPORATION'S

SPROUSES CORNER,

COMPLAINT

(ECF No.

(ECF No.

be

dismissed

dismissed
the

PHH

DEFENDANT,

DISMISS

claims

claims
the

TO

above,

9),

PLAINTIFF'

and Shapiro's MOTION
and

stated

25)

PLAINTIFF'S

will

with

without

16)'

LLC'S

and

be granted,

prejudice.

prejudice.

MOTION

FOR

SUMMARY

It is so ORDERED.

Isl
Robert E. Payne
Senior United States District Judge

13

The

Having

(ECF No. 44) will be denied as moot.

Richmond, Virginia
Date:
February -'2_, 2017

PCF