Sabatino v. Pill et al
MEMORANDUM OPINION AND ORDER GRANTING 14 DEFENDANTS' MOTION TO DISMISS COMPLAINT AND DENYING AS MOOT 2 PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER. This case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/14/2017. (kd)(Copy pro se party/cmrrr) (Additional attachment(s) added on 9/14/2017: # 1 Certified Mail Return Receipt) (kd).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COLEEN D. SABATINO,
Civil Action No. 1:17CV72
RICHARD A. PILL, ESQ. and
WEST VIRGINIA HOUSING DEVELOPMENT
FUND, a public body corporate
and governmental instrumentality
of the State of West Virginia,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS COMPLAINT
AND DENYING AS MOOT PLAINTIFF’S MOTION
FOR A TEMPORARY RESTRAINING ORDER
The pro se1 plaintiff, Coleen D. Sabatino, filed a complaint
and motion for a temporary restraining order to prevent the
foreclosure sale of property situated at 2083 Pinecrest Drive,
Morgantown, Monongalia County, West Virginia.
Virginia Housing Development Fund (“WVHDF”) holds a lien on the
property, and defendant Richard A. Pill, Esq. (“Pill”) is the
trustee to whom the property has been assigned.
purchased the home in 2009 for $200,000.00, and she financed
$131,500.00 of the purchase price with a loan from United Bank,
which was secured by a deed of trust.
United Bank then assigned
“Pro se” describes a person who represents herself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
the promissory to WVHDF.
The plaintiff later obtained a home
equity loan from United Bank, also secured by a deed of trust,
which is subordinate to that of WVHDF.
The plaintiff defaulted on her loan obligation to WVHDF in
On April 7, 2015, WVHDF entered into a Special
Forbearance Agreement with the plaintiff, which suspended payments
from April to June 2015.
On July 30, 2015, WVHDF entered into a
second Special Forbearance Agreement with the plaintiff, which
suspended payments from July to September 2015.
On November 10,
2015, WVHDF entered into a third Special Forbearance Agreement with
the plaintiff, which suspended payments from November 2015 to
The plaintiff then requested further loss mitigation and
submitted a hardship affidavit in February 2016. On June 22, 2016,
WVHDF accepted the plaintiff’s loan modification request, but the
acceptance was contingent on the plaintiff making three test
The plaintiff never made any of the three required test
payments and, accordingly, WVHDF denied her application for a loan
In August 2016, the plaintiff notified WVHDF that she had
listed the property for sale with a realtor. On September 7, 2016,
WVHDF informed the plaintiff that she would have 60 days to sell
the property before WVHDF would commence foreclosure proceedings.
After the plaintiff listed the property for sale, she moved out of
the home and into a different residence in Preston County, West
The 60-day period before foreclosure proceedings would
commence expired on November 7, 2016, at which point the plaintiff
had not sold the property. However, WVHDF took no immediate action
to foreclose on the property, and the property remained listed for
On November 22, 2016, WVHDF provided the plaintiff with a
notice of its right to cure default and, the same day, the
plaintiff entered into a contract to sell the property.
contract indicated that the sale was to commence on or before
January 22, 2017.
The sale of the property did not occur.
On April 17, 2017,
WVHDF provided the plaintiff with notice that the property would be
sold at auction on May 10, 2017.
On May 8, 2017, the plaintiff’s
plaintiff’s property from the same buyers who had entered into the
earlier November 22, 2016 contract to purchase the property from
Also on May 8, 2017, the plaintiff filed her
complaint and motion for a temporary restraining order with this
This Court initially scheduled a hearing on the plaintiff’s
motion for a temporary restraining order.
The defendants then
filed a motion to continue the hearing, representing that the May
10, 2017 foreclosure sale of the property had been rescheduled for
June 21, 2017, pursuant to the defendants’ agreement with the
plaintiff to delay the sale.
That motion also indicated that the
plaintiff’s representation of the pending sale of the subject
property and that the agreed delay would allow the sale to be
The Court granted the defendants’ motion to continue
and stayed the case.
At the Court’s direction, the defendants timely filed a status
report, which indicated that the sale of the subject property did
not occur, that defendant WVHDF has received no payments on the
subject loan from the plaintiff since February 2015, and that the
foreclosure sale had been postponed a second time, until August 8,
The status report also asked the Court to set a briefing
schedule for dispositive motions.
Pursuant to the status report,
the Court lifted the stay of this civil action and established a
The defendants timely filed their motion to dismiss. In their
motion, the defendants argue that the complaint identifies no cause
of action and few non-conclusory allegations.
The Court issued a
Roseboro2 notice to the pro se plaintiff, and the plaintiff timely
filed her response to the defendants’ motion to dismiss.
defendants then filed a reply to the plaintiff’s response.
defendants also filed a response to the plaintiff’s motion for a
temporary restraining order.
After the full briefing of the
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975).
motions, counsel for the defendants informed the Court that the
September 20, 2017.
For the following reasons, the Court grants
plaintiff’s motion for a temporary restraining order.
Motion to Dismiss
In assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true.
Nemet Chevrolet, Ltd v.
Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir. 2009).
However, “legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement fail to
constitute well-pled facts for Rule 12(b)(6) purposes.”
(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
unreasonable conclusions, or arguments.”
Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).
It has often been said that the purpose of a motion under Rule
12(b)(6) is to test the formal sufficiency of the statement of the
claim for relief; it is not a procedure for resolving a contest
about the facts or the merits of the case.
5B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.
The Rule 12(b)(6) motion also must be distinguished from a
motion for summary judgment under Federal Rule of Civil Procedure
56, which goes to the merits of the claim and is designed to test
whether there is a genuine issue of material fact.
purposes of the motion to dismiss, the complaint is construed in
allegations constitute a statement of a claim under Federal Rule of
Civil Procedure 8(a).
Id. § 1357.
A complaint should be dismissed “if it does not allege ‘enough
facts to state a claim to relief that is plausible on is face.’”
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
plausibility is established once the factual content of a complaint
‘allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Nemet Chevrolet,
591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949).
factual allegations are not required, but the facts alleged must be
sufficient “to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
Motion for Temporary Restraining Order
The standard for granting injunctive relief in this circuit is
set forth in International Refugee Assistance Project v. Trump, 857
F.3d 554 (4th Cir. 2017), cert. granted, 137 S. Ct. 2081 (2017). “A
preliminary injunction is an ‘extraordinary remedy,’ which may be
awarded only upon a ‘clear showing’ that a plaintiff is entitled to
such relief.” Int’l Refugee Assistance Project, 857 F.3d at 607-08
Commission, 575 F.3d 342 (4th Cir. 2009) (citing Winter v. Natural
Resources Defense Counsel, Inc., 555 U.S. 7 (2008))).
Fourth Circuit standard of review, “[a] preliminary injunction must
be supported by four elements: (1) a likelihood of success on the
merits; (2) that the plaintiff likely will suffer irreparable harm
in the absence of preliminary relief; (3) that the balance of
equities tips in the plaintiff’s favor, and (4) that a preliminary
injunction is in the public interest.”
Id. at 608 (citing Real
Truth, 575 F.3d at 346).
Motion to Dismiss
Even construing the pro se complaint liberally and in the
light most favorable to the plaintiff, this Court finds that the
plaintiff has failed to state a claim for which relief can be
“expressly and completely adhered to the strictures, regulations
and directives of [WVHDF].”
ECF No. 1 at 3.
plaintiff does not identify what strictures or directives she
allegedly followed, or what she did to adhere to them.
And, as the
defendants note, the plaintiff did not complete her application for
loss mitigation, which required that three test payments be made
before the plan would be enacted. After the plaintiff defaulted on
mitigation plan, which was contingent on the plaintiff making the
three monthly test payments.
ECF No. 15, Ex. B.
But the loss
mitigation plan was never implemented because the plaintiff did not
make any of the three required payments.
Thus, the plaintiff
cannot support her claim that she adhered to the directives of
The complaint also fails to state any allegations giving rise
to a finding that WVHDF violated any provision of the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq.
plaintiff asserts that WVHDF violated 12 C.F.R. § 1024.38, a RESPA
regulation, because, in response to the plaintiff’s request for a
payment only by $60.00, from $882.04 to $822.04.
inapplicable because it provides only that a lender enact policies
regulation does not mandate that a loan servicer lower payments by
a certain minimum amount, or even that a loan servicer offer loss
mitigation options at all.
12 C.F.R. § 1024.41(a) (“Nothing in
§ 1024.41 imposes a duty on a servicer to provide any borrower with
any specific loss mitigation option.”).
Thus, the plaintiff has
not stated any claims giving rise to a RESPA violation.
Additionally, RESPA does not provide for injunctive relief.
In establishing RESPA, Congress “did not mention injunctive relief
as an available remedy for private citizens.”
Minter v. Wells
Fargo Bank, N.A., 593 F. Supp. 2d 788, 796 (D. Md. 2009).
2615 of RESPA specifically provides that “[n]othing in this chapter
shall affect the validity or enforceability of any sale or contract
mortgage, or lien made or arising in connection with a federally
related mortgage loan.”
12 U.S.C. § 2615; see also Everbank v.
Shrine, No. DBDCV 146014362S, 2015 WL 2344728, at *8 (Conn. Super.
Ct. Apr. 15, 2015) (“A violation of RESPA is, however, not a valid
defense to a foreclosure action.”).
Thus, the plaintiff’s claim
for injunctive relief under RESPA must also be dismissed for that
Furthermore, no plausible cause of action arises from the
plaintiff’s allegations that WVHDF counseled the plaintiff against
selling the home and prevented her from renting the home.
1 at 3.
The allegations do not support a cause of action because
WVHDF had no legal duty to permit the plaintiff to lease the home.
Additionally, the need for a trustee’s sale arises from the
plaintiff’s failure to make payments on her loan since February
2015, not from the fault of the defendants. The plaintiff admitted
in an affidavit that she had the opportunity to sell the home in
February 2017 for $232,000.00, but declined the offer, even though
the sale would have covered all liens on the property and left the
plaintiff with approximately $60,000.00.
ECF No. 18-1 at 2.
The plaintiff also has not identified any recoverable damages.
The plaintiff cannot state a claim under RESPA unless she pleads
that she “suffered actual damages” as a result of the defendants’
RESPA violation. Luciw v. Bank of Am., N.A., No. 5:10CV02779, 2011
WL 566833, at *4 (N.D. Cal. Feb. 15, 2011).
The plaintiff alleges
that her damages include interest, principal, late fees, insurance,
and taxes associated with her loan.
ECF No. 1 at 3-4.
the plaintiff has not paid any of those amounts since the loan went
into default status in February 2015. The plaintiff further claims
as damages routine homeowners expenses and the amount of her equity
in the home.
ECF No. 1 at 3-4.
Those damages are not recoverable
because it is speculative for the plaintiff to say when the home
would have been sold or for how much it would have been sold.
plaintiff also requests compensation for emotional injury, but such
damages are not cognizable under RESPA.
Ayres v. Ocwen Loan
Servicing, LLC, 129 F. Supp. 3d 249, 266 n.24 (D. Md. 2015) (citing
Offiah v. Bank of Am., N.A., No. DKC-13-2261, 2014 WL 4295020, at
*3-4 (D. Md. Aug. 29, 2014)).
Lastly, the plaintiff has not alleged any wrongdoing on the
part of defendant Pill, and, thus, the complaint against him must
be dismissed. The plaintiff’s only allegation as to defendant Pill
is that, as the trustee under the deed of trust, he published a
notice of the trustee’s sale in the newspaper “in violation of the
Defendant WVHDF to sell ‘The Property’ for fair market value.” ECF
No. 1 at 7.
However, such publication was not wrongful because
West Virginia Code § 38-1-4 requires that notice of a trustee’s
advertisement. Additionally, the plaintiff and WVHDF never entered
into a loss mitigation plan because the plan was contingent on the
plaintiff making three test payments, which she never did.
defendant Pill could not have been in violation of any loss
For those reasons, the defendants’ motion to dismiss the
complaint must be granted.
Motion for Temporary Restraining Order
Because the Court grants the defendants’ motion to dismiss the
complaint, the motion for a temporary restraining order must be
denied as moot.
Additionally, the Court finds that the motion
would nonetheless be denied on the merits pursuant to an analysis
Looking at the first of the four factors, the Court finds that
the plaintiff is unlikely to succeed on the merits.
cannot succeed on the merits for the same reasons discussed above
in granting the defendants’ motion to dismiss.
plaintiff has not alleged any facts giving rise to a cause of
No facts alleged in the complaint support a finding that
WVHDF violated any provision of RESPA.
Furthermore, WVHDF had no
legal duty to permit the plaintiff to lease the home, and the
plaintiff refused an offer to purchase the home even though the
sale would have covered all liens on the property.
Second, the Court finds that the plaintiff has failed to show
that she will likely suffer irreparable harm without preliminary
The plaintiff must show “that injury is certain, great,
actual and not theoretical.”
Harper v. Blagg, No. 2:13CV19796,
2014 WL 3750023, at *2 (S.D. W. Va. May 21, 2014) (quoting Tanner
v. Fed. Bureau of Prisons, 433 F. Supp. 2d 117, 125 (D.D.C. 2006)).
Furthermore, “[w]here the harm suffered by the moving party may be
compensated by an award of money damages at judgment, courts
generally have refused to find that harm irreparable.”
Network Sys., Inc. v. InterDigital Comm’s Corp., 17 F.3d 691, 694
(4th Cir. 1994).
Here, the plaintiff will not suffer irreparable
harm in the event of foreclosure because any resulting loss could
be compensated by an award of money damages at judgment if her
claim was successful.
Third, the Court finds the balance of equities tips in favor
of the defendants.
The balance of equities cannot tip in favor of
the plaintiff because she has not made any payments on her loan
since February 2015. Furthermore, the plaintiff does not reside at
the home at issue and, thus, is not at risk of losing her primary
residence in the event of foreclosure.
The balance of equities
must tip in favor of the defendants because WVHDF has the legal
right to foreclose, particularly after more than two years of not
receiving any mortgage payments from the plaintiff.
Lastly, the Court finds that the public interest is in favor
of the defendants.
As the defendant points out, it is in the
public interest to allow lenders to foreclose in the event of nonpayment for the purpose of keeping interest rates low for other
If the Court were to take away from mortgage lenders
the recourse of foreclosure, there would be no way to mitigate the
risk of loss to mortgage lenders.
It is not in the public interest
to incentivize borrowers to cease payments on mortgage loans and
then have a court enjoin the mortgage lender from foreclosing until
the borrower can sell the property.
For those reasons, the plaintiff’s motion for a temporary
restraining order would be denied on the merits even if the Court
were not already denying it as moot.
For the reasons set forth above, the defendants’ motion to
dismiss the complaint (ECF No. 14) is GRANTED and the plaintiff’s
motion for a temporary restraining order (ECF No. 2) is DENIED AS
Accordingly, it is ORDERED that this case be DISMISSED and
STRICKEN from the active docket of this Court.
The plaintiff may
appeal the final judgment of this Court to the United States Court
of Appeals for the Fourth Circuit by filing a notice of appeal with
the Clerk of this Court within thirty days after the date of the
entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
September 14, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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