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PHH Mortgage Corp Retain Houser LLP and We’re Takin’ a Bite at Watchin’ This Dispute

The parties shall, no later than Thursday, May 26, 2022, file their Joint Status Report and show cause to the Court.

Published

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Mironov v. PHH Mortgage Corporation

(2:22-cv-00416)

District Court, W.D. Washington

 

FEB 6, 2022 | REPUBLISHED BY LIT: FEB 6, 2022

On April 6, 2022, the Court issued an order requiring the parties to file a Joint Status Report by May 4, 2022.

No such report has been filed and the parties have not sought or obtained an extension of time in which to make the required submission.

The parties shall, no later than Thursday, May 26, 2022, file their Joint Status Report and show cause to the Court why sanctions including dismissal should not be imposed for their failure to comply with the Order of April 6, 2022.

The Clerk is directed to place this Order to Show Cause on the Court’s calendar for May 27, 2022.

DATED this 10th day of May, 2022.

Robert S. Lasnik
United States District Judge

TO: Clerk of the Court
AND TO: All Parties

Please take notice that Defendant PHH Mortgage Corporation (“Defendant PHH”) hereby removes the case now pending in the King County Superior Court, assigned Case No. 22-2- 02913-7 SEA, to the United States District Court for the Western District of Washington, pursuant to 28 U.S.C. §§ 1332 and 1446.

Defendant PHH appears for the purpose of removal only and for no other purpose, and reserves all defenses and rights available to it. Defendant PHH does not waive any defenses, including improper venue.

In support of this Notice of Removal, Defendant PHH states as follows:

I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

On March 1, 2022, Plaintiff Ilya Mironov (the “Plaintiff”) filed a Complaint for Damages in King County Superior Court, Washington.

The Complaint names Defendant PHH as the sole defendant joined as a party.

Defendant PHH is not a citizen of Washington, nor is Defendant. PHH’s principal place of business is located in Washington State. Declaration of Nicholas A. Reynolds in Support of Notice of Removal (“Decl.”), Exhibit #1.

On or about March 1, 2022, Defendant PHH received a copy of the Complaint. Id. at ¶ 3.

Plaintiff’s Complaint alleges that Plaintiff is a resident of Washington State. The Complaint alleges claims for injuries and damages related to the real property located at 2385 Hughes Avenue SW, Seattle, King County, Washington (the “Property”), which is valued at $908,000.00 by the King County Assessor. Decl., Ex. # 2.

Plaintiff’s Complaint sets forth causes of action for breach of contract, breach of the duty of good faith and fair dealing, as well as violation of Washington’s consumer protection act statute. Decl., Ex. # 3.

II. BASIS FOR REMOVAL

The United States District Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332(a) because (1) there is complete diversity of citizenship between the Plaintiff and the Defendant; and (2) the amount in controversy exceeds $75,000.00.

A. Diversity Jurisdiction Exists Between the Parties.

This is a civil action over which this Court has original jurisdiction, based on diversity jurisdiction. Pursuant to 28 U.S.C. § 1332, a civil action brought in a state court may be removed by the defendant if the amount in controversy exceeds $75,000.00 and it is between citizens of different states.

The Plaintiff’s Complaint states that he is entitled to contractual benefits and extra- contractual remedies. Plaintiff has pled contractual and extra-contractual claims that place the value of the case at greater than $75,000.

Here, the amount in controversy exceeds $75,000.00 because the Plaintiff has explicitly made a claim for economic damages equal to or greater than $39,893.97 and has pled a cause of action seeking treble damages under RCW 19.86 et seq that place the case value above the amount in controversy threshold.

The requirement for diverse citizenship is also met. Plaintiff is a citizen and resident of Washington. Defendant PHH is a corporation organized under the laws of the state of New Jersey, with its principal place of business in New Jersey.

Therefore, under 28 U.S.C. § 1332(c)(1), Defendant PHH is a citizen of New Jersey for diversity purposes.

III. TIMING OF REMOVAL

Defendant PHH’s removal herein is timely. Pursuant to 28 U.S.C. § 1446(b), notice of removal is timely filed “within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 16 (1999).

The thirty-day time period in which the defendant must remove the case is determined through examination of the four corners of the applicable pleadings. Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005).

In such case, notice of removal may be filed within thirty days after receipt by the defendant, of a copy of an amended pleading, motion order, or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446 (b).

Here, the Affidavit of Process Server provided by the Plaintiff reflects that a copy of the Complaint, Order Setting Case Schedule and Case Information Cover Sheet were personally  served on an agent of Defendant PHH authorized to receive service of process on or about March 4 1, 2022. Accordingly, the removal of proceedings is timely.

IV. VENUE

Removal to the United States District Court for the Western District of Washington, is appropriate because the Superior Court of King County, Washington is within this Court’s District and Division. See 28 U.S.C. §1446(a). That said, Defendants reserve all defenses, including the right to challenge improper venue.

V. NOTIFICATION TO STATE COURT OF REMOVAL

Contemporaneously with the filing of this Notice of Removal, counsel for Defendant PHH is serving written notice on the Plaintiff and filing the same with the Clerk of the Superior Court of King County, Washington, as required by 28 U.S.C. § 1446(d). Decl. ¶ 4.

VI. STATE COURT FILINGS ATTACHED

Pursuant to 28 U.S.C. § 1446(a), true and accurate copies of all process, pleadings and orders received by Defendants and filed in the State Court Action are attached as Exhibit 1.

The removal of this action terminates all potential proceedings in King County Superior Court. See 28 U.S.C. § 1446(d).

 VII. CONCLUSION

Defendant PHH respectfully gives notice that the above-entitled action is removed from  the Superior Court of King County, Washington, to the United States District Court for the Western District of Washington.

1 Dated: April 1, 2022.

U.S. District Court
United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:22-cv-00416-RSL

Create an Alert for This Case on RECAP

Mironov v. PHH Mortgage Corporation
Assigned to: Judge Robert S. Lasnik

Case in other court:  King County Superior Court, 22-00002-02913-7-SEA

Cause: 28:1441 Petition for Removal- Contract Dispute

Date Filed: 04/01/2022
Jury Demand: None
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity
Plaintiff
Ilya Mironov represented by Reed Anthony Yurchak
LAW OFFICE OF REED YURCHAK
620 131st Ave NE
Bellevue, WA 98005
425-941-6659
Fax: 425-654-1205
Email: yurchaklaw@gmail.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
PHH Mortgage Corporation represented by Robert W Norman, Jr
HOUSER LLP (SEATTLE)
600 UNIVERSITY ST
SUITE 1708
SEATTLE, WA 98101
562-256-1675
Email: rnorman@houser-law.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDNicholas A. Reynolds
HOUSER LLP (SEATTLE)
600 UNIVERSITY ST
SUITE 1708
SEATTLE, WA 98101
206-596-7838
Email: nreynolds@houser-law.com
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
04/01/2022 1 NOTICE OF REMOVAL from King County Superior Court, case number 22-2-02913-7-SEA; (Receipt # AWAWDC-7498740) Attorney Nicholas A. Reynolds added to party Phh Mortgage Corporation, a New Jersey corporation(pty:dft), filed by Phh Mortgage Corporation, a New Jersey corporation. (Attachments: # 1 Complaint State Court Complaint)(Reynolds, Nicholas) (Entered: 04/01/2022)
04/01/2022 2 CIVIL COVER SHEET re 1 Notice of Removal, ; filed by Defendant Phh Mortgage Corporation, a New Jersey corporation. (Reynolds, Nicholas) (Entered: 04/01/2022)
04/01/2022 3 DECLARATION of of Nicholas A. Reynolds re 1 Notice of Removal, by Defendant Phh Mortgage Corporation, a New Jersey corporation (Attachments: # 1 Exhibit)(Reynolds, Nicholas) (Entered: 04/01/2022)
04/01/2022 4 VERIFICATION OF STATE COURT RECORDS re 1 Notice of Removal, by Defendant Phh Mortgage Corporation, a New Jersey corporation (Attachments: # 1 Exhibit State Court Records)(Reynolds, Nicholas) (Entered: 04/01/2022)
04/04/2022 5 LETTER from Clerk re receipt of case from King County Superior Court and advising of WAWD case number and judge assignment. (MJV) (Entered: 04/04/2022)
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Appellate Circuit

Judge Albert Diaz Insults Americans Who Pay His Salary With $35 Payout and $1.3M Attorney Fee Deduction

Judge Albert Diaz insults the American homeowners and Judge Stephanie Thacker endorses opinion along with lower court Judge Tim Cullen.

Published

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By

PIA MCADAMS,

Appellant,

v.

DEMETRIUS ROBINSON; TAMARA ROBINSON,

Plaintiffs – Appellees,

v.

NATIONSTAR MORTGAGE LLC,

Defendant – Appellee.

NATIONAL CONSUMER LAW CENTER; MOUNTAIN STATE JUSTICE, INC., CONSUMERS LEAGUE OF NEW JERSEY; CONNECTICUT FAIR HOUSING CENTER; NORTHWEST CONSUMER LAW CENTER,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Timothy J. Sullivan, Magistrate Judge. (8:14−cv−03667−TJS)

Argued: October 28, 2021 Decided: February 10, 2022
Amended: February 10, 2022

Before DIAZ and THACKER, Circuit Judges, and Thomas T. CULLEN, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Thacker and Judge Cullen joined.

ARGUED:

Michael T. Houchin, LAW OFFICES OF RONALD A. MARRON, APLC,
San Diego, California, for Appellant.

Jonathan K. Tycko, TYCKO & ZAVAREEI LLP, Washington, D.C.;

Erik Wayne Kemp, SEVERSON & WERSON, San Francisco, California, for Appellees.

ON BRIEF:

Ronald A. Marron, LAW OFFICES OF RONALD A. MARRON, APLC, San Diego, California;

Thomas J. Minton, GOLDMAN & MINTON, P.C., Baltimore, Maryland, for Appellant.

Dia Rasinariu, TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellee Tamara Robinson.

Jan T. Chilton, SEVERSON & WERSON, San Francisco, California, for Appellee Nationstar Mortgage LLC.

Scott C. Borison, BORISON FIRM LLC, Baltimore, Maryland;

Jennifer S. Wagner, MOUNTAIN STATE JUSTICE, Morgantown, West Virginia, for Amici Curiae.

 

FEB 11, 2022 | REPUBLISHED BY LIT: FEB 13, 2022

DIAZ, Circuit Judge:

This case arises from a class action alleging that Nationstar Mortgage LLC violated federal and state consumer-protection laws in servicing the class members’ mortgage loans.

Following protracted litigation, Nationstar, and the Robinsons negotiated a $3,000,000 settlement.

Pia McAdams, a class member, objected to the settlement, arguing that the class notice was insufficient; the settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad; and the attorneys’ fee award was improper.

A magistrate judge (acting on a referral by the district court) overruled McAdams’s objections.

On appeal, McAdams raises those same challenges and questions the magistrate judge’s jurisdiction.

We affirm.

I.

A.

Demetrius and Tamara Robinson filed a class action against Nationstar in the District of Maryland in 2014.

The Robinsons claimed Nationstar violated federal and state law by, among other things, failing to timely acknowledge receipt of class members’ loss mitigation applications,1 respond to the applications, and diligently obtain documents to process them.

The parties litigated the case for nearly six years. In 2020, the Robinsons and Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate

judge.

The magistrate judge (who had mediated the settlement), granted a motion for preliminary approval of the settlement and scheduled a fairness hearing before final approval.

The negotiated settlement created a relief fund of $3,000,000.

In order of priority, the parties proposed that the fund pay for

(1) administrative expenses up to $300,000,

(2) attorneys’ fees,

(3) a service award to the class representative—Demetrius Robinson,

and

(4) class claims.

Any remainder would go to a nonprofit that advocates for consumers.

The administrative expenses included the cost of providing class members with notice of the settlement.

The settlement proposed three types of notice—Email, Postcard, and Longform.

Both the Email and Postcard Notice informed class members of the amount of the settlement fund, how to submit a claim, how to opt out of the class, and where to find the Longform Notice.

The Longform Notice notified class members of the attorneys’ fee arrangement.

The notices didn’t estimate the recovery for each class member.

As for attorneys’ fees, Nationstar agreed (in a so-called “clear sailing” provision) not to oppose class counsel’s fee request so long as it didn’t exceed $1,300,000.

Class counsel submitted records accounting for over 3,000 billable hours.

Using the District of Maryland’s presumptively reasonable rates, the records supported $1,261,547.50 in fees.

Class counsel also submitted proof of $217,657.26 in unreimbursed expenses, for a total of $1,479,204.76 in costs and fees.

But counsel requested only a $1,300,000 award.

The value of a class member’s claim is determined by a points system.

Class members receive points for answering two questions—the first about Nationstar’s treatment of their mortgage account and the second about expenses the class member incurred.

The settlement funds remaining, after deducting administrative expenses, attorneys’ fees, and the class representative’s service award, are divided by the number of points claimed.

That number is then multiplied by a class member’s points to arrive at the settlement share for each claimant.

The proposed settlement also includes a release of claims.

It provides:

Upon entry of the Final Approval Order and Judgment, each Settlement Class Member . . . will be deemed to have completely released and forever discharged the Released Parties, and each of them, from all actions . . . that were or could have been asserted by the Class Representative or Class Members in connection with the submission of loss mitigation applications during the Class Period.

J.A. 186.

B.

McAdams, an absent class member2 who had sued Nationstar in California state court,3 objected to the settlement. She argued that the class notice was insufficient; the

settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad; and the attorneys’ fee award was improper.

The magistrate judge overruled McAdams’s objections.

The judge found that the distribution of the notice was sufficient because over 97% of the nearly 350,000 class members received notice.

He also found that class members “had information to make the necessary decisions and . . . the ability to even get more information if they so desired.”

J.A. 815.

In support of that finding, the judge noted the low number of objectors (2), the low opt-out rate (.04%), and the high claims rate (13.8%).4

Turning to the settlement terms, the magistrate judge found them fair, reasonable, and adequate.

The judge considered the three relevant criteria under Federal Rule of Civil Procedure 23(e)(2)(C) and addressed the five adequacy factors from In re Jiffy Lube Securities Litigation, 927 F.2d 155, 159 (4th Cir. 1991).

The judge found: (1) “plaintiffs ha[d] viable claims”; (2) “Nationstar had very strong defenses”; (3) litigating the case to trial “would have likely been lengthy and it would certainly be quite, quite expensive”; (4) “Nationstar can pay the 3 million dollars”; and (5) “[o]nly 137 class members have opted

out of the settlement, which is about 0.04 percent of the settlement class.”

See J.A. 810– 14.

The magistrate judge also addressed the breadth of the settlement’s release. He found the release was “not too broad” because a class settlement can release “claims based on the identical factual predicate[,] even if those claims” aren’t presented.

J.A. 816.

But he didn’t opine whether the release would bar class members’ pending claims in other jurisdictions, including McAdams’s California lawsuit.

Finally, the magistrate judge approved the proposed $1,300,000 attorneys’ fee request.

The fee, he said, was based on a presumptively reasonable rate, and using that rate, counsel had shown that their actual costs and fees exceeded their request.

The judge noted that concerns over Nationstar’s agreement not to object to the settlement were misplaced.

And he found “no collusion” between the parties because they negotiated the settlement “at arm’s length in the midst of contentious litigation.”

J.A. 812, 817.

This appeal followed.

II.

McAdams first attacks the magistrate judge’s jurisdiction to approve the class action settlement, alleging that she didn’t consent to have a magistrate judge hear her case.

There’s no dispute that the magistrate judge could approve the class action and enter judgment only by consent of the parties.

28 U.S.C. § 636(c).

McAdams asserts that “parties” for purposes of § 636(c) include absent class members, like her.

This is a question of first impression in this circuit.

But every other circuit to address the issue has concluded that absent class members aren’t parties.

Koby v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1076 (9th Cir. 2017); Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1316 (11th Cir. 2013); Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181 (3d Cir. 2012); Williams v. Gen. Elec. Cap. Auto Lease, Inc., 159 F.3d 266, 269 (7th Cir. 1998).

We now join them, holding that the magistrate judge had jurisdiction to approve the settlement.

A.

We review questions of law de novo, including questions of statutory interpretation.

In re Lumber Liquidators Chinese-Manufactured Flooring Prods. Mktg., Sales Pracs. & Prods. Liab. Litig., 952 F.3d 471, 483 (4th Cir. 2020).

Similarly, “[w]e review . . . a lower court’s determination of its subject-matter jurisdiction[] de novo.”

Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1007 (4th Cir. 2014) (en banc).

B.

“We begin, as always in deciding questions of statutory interpretation, with the text.”

Othi v. Holder, 734 F.3d 259, 265 (4th Cir. 2013).

28 U.S.C. § 636(c) authorizes magistrate judges to “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case . . . . [u]pon the consent of the parties.”

Congress didn’t define “parties” in § 636.

Nor has the Supreme Court said whether absent class members are parties in this context.

See Devlin v. Scardelletti, 536 U.S. 1, 9–10 (2002)

(“Nonnamed class members, however, may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.”).

“We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import.”

Williams v. Taylor, 529 U.S. 420, 431 (2000) (cleaned up).

When Congress adopted the relevant language in § 636, the ordinary meaning of “party” included those whose names are designated as a plaintiff or defendant and those who can control the proceedings.

See Day, 729 F.3d at 1317.

Absent class members aren’t named parties, and they can’t control proceedings.

See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985)

(“Unlike a defendant in a normal civil suit, an absent class-action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection.”).

So absent class members aren’t within the contemporary, common meaning of the term “parties” as used in § 636.

Nor do we believe Congress intended absent class members to be parties.

Interpreting “parties” to include absent class members would prevent magistrate judges from entering judgment against absent class members who haven’t given their explicit consent.

That reading “would virtually eliminate § 636(c) referrals to magistrate judges” by hindering the judgment’s preclusive effect.

Williams, 159 F.3d at 269.

Congress has limited the preclusive effect of judgments by restricting the definition of a party in other contexts.

See, e.g., 29 U.S.C. § 216(b)

(“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”).

But when it has done so, Congress has spoken clearly. Nothing in § 636 suggests Congress intended to limit the preclusive effect of judgments entered by magistrate judges.

McAdams doesn’t account for the adverse practical effects of administering class actions if her reading were to prevail.

The Ninth Circuit has observed that § 636 uses the term “parties” “multiple times in a way that cannot sensibly be read to include absent class members” because “[t]he identities of all absent class members will often not be known until later in the case.”

Koby, 846 F.3d at 1076; see, e.g., 28 U.S.C. § 636(c)(2)

(“[T]he clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction.”).

“Even if the identities of all absent class members are known,” it would be unduly burdensome on the clerk of court to compile all their contact information and prohibitively expensive “even for the most well-funded district courts.”

Koby, 846 F.3d at 1077.

This case exemplifies the need to have a practical system for administering class actions.

The class here consists of almost 350,000 members.

McAdams’s reading of “parties” for purposes of § 636 would require notifying each of them of the intent to proceed before a magistrate judge.

“We doubt Congress would have imposed these substantial budgetary and manpower burdens on clerks’ offices across the country without making that intent explicit.”

Id. at 1077.

And to what end? In this case, over 97% of class members received notice of the settlement. 13.8% submitted claims. Only .04% opted out. So over 80% of the class received notice but didn’t act on it.

Yet under McAdams’s reading of § 636, the magistrate judge would be powerless to act.

Because the contemporary, common meaning of “parties” excludes absent class members and the statute lacks signs showing any legislative intent to classify them as such, we conclude “parties” as used in § 636 doesn’t include absent class members.

Since Nationstar and the Robinsons consented to having the magistrate judge preside over the fairness hearing, McAdams’s jurisdictional claim fails.5

III.

A.

McAdams next asserts that the settlement notice was inadequate because it didn’t include the attorneys’ fees to be deducted from the settlement fund, estimate individual class members’ recovery, or explain the distribution method.

The parties dispute our standard of review.

We haven’t spoken on this question, and our sister circuits are split.

Two circuits review a district court’s finding on the adequacy of class action notice for abuse of discretion.

Pollard v. Remington Arms Co., 896 F.3d 900, 905–06 (8th Cir. 2018); Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 438 (2d Cir. 2007).

Three others review the issue de novo.

In re Online DVD-Rental

Antitrust Litig., 779 F.3d 934, 946 (9th Cir. 2015); DeJulius v. New England Health Care Emp. Pension Fund, 429 F.3d 935, 942 (10th Cir. 2005); Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).

But even assuming de novo review is proper, the class notice was adequate.

B.

McAdams’s challenge to the adequacy of the notice has both a constitutional and a procedural component.

To bind an absent class member, notice to the class must provide “minimal procedural due process protection.”

Phillips Petroleum Co., 472 U.S. at 811–12.

“The [absent class member] must receive notice plus an opportunity to be heard and participate in the litigation.”

Id. at 812.

That notice must be “reasonably calculated, under all the circumstances, to apprise [absent class members] of the pendency of the action and afford them an opportunity to present their objections.”

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).

On the procedural front, Federal Rule of Civil Procedure 23(e) governs notice to absent class members. It requires “direct notice in a reasonable manner to all class members who would be bound by the proposal.”

Fed. R. Civ. P. 23(e)(1)(B).

But it doesn’t specify what the notice must say. Rather, the notice need only “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.”

Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005) (cleaned up).

Put another way, “Rule 23(e) requires notice that describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.”

In re Online DVD-Rental Antitrust Litig., 779 F.3d at 946 (cleaned up).

Here, the magistrate judge approved three types of notice—Email, Postcard, and Longform.6

The settlement administrator emailed notice to class members for whom it had an email address.

It also mailed notice to class members for whom it had a physical address.

And it searched the National Change of Address database to update the addresses for those whose Postcard Notice was returned as undeliverable.

Both the Email and Postcard Notice informed class members that there was a $3,000,000 settlement fund, explained how to file a claim, and presented the option to opt- out.

They also listed a website and telephone number where class members could get the Longform Notice.

The Longform Notice explained the settlement in greater detail.

Among other things, it stated that class counsel intended to request up to $1,300,000 in attorneys’ fees and costs, that this amount would be deducted before any payout to the class, and that class members submitting valid claims would receive proportionate shares of the settlement fund.7

In other words, the Longform Notice included two of the three pieces of

information—the attorneys’ fees to be deducted from the settlement fund and the distribution method—which McAdams complains is missing.

Nor was the notice inadequate because it didn’t estimate the class members’ recovery.

In general, it would be difficult, if not impossible, for parties to reliably predict the number of valid claims when drafting notices.

Indeed, the Longform Notice acknowledges this difficulty:

“The amount of this payment will depend on how many Settlement Class Members file valid claims and how each Settlement Class Member answers questions in the Claim Form.”

J.A. 203.

And even if an estimated recovery is appropriate in some cases, McAdams makes no compelling argument for one here.

There’s nothing in the record suggesting the parties had a reliable method of estimating the percentage of class members who would file claims, let alone the average number of points they would claim.

Nor could the parties know that the magistrate judge would approve the proposed award of attorneys’ fees.

Without some evidence proving an average recovery calculation would be reliable, we think it inappropriate to impose such a requirement.

See, e.g, Does 1-2 v. Déjà Vu Servs., Inc., 925 F.3d 886, 901 (6th Cir. 2019)

(“Objectors cite no authority that requires a notice to state how much money each class member would receive, nor do they explain how the notice could have accurately stated the amount each [class member] was eligible to receive from the cash pool.”).

In sum, we find the methods of notice here fairly apprised class members of the proceedings as well as their options.

Class members had access to information about the total settlement, attorneys’ fees, and distribution method.

The notices also provided them with the means to find more information if they wanted it.

Thus, the notices were adequate.

IV.

McAdams next contests the magistrate judge’s finding that the settlement was fair, reasonable, and adequate. She asserts that the magistrate judge neglected to estimate the average recovery, and thus the settlement fund won’t adequately compensate the class members.

“We review a district court’s approval of a class-action settlement for an abuse of discretion.”

In re Lumber Liquidators, 952 F.3d at 483.

Rule 23 requires courts to find that class settlements are “fair, reasonable, and adequate” before approving them.

Fed. R Civ. P. 23(e)(2).

When reviewing the adequacy of a settlement, the court must consider

“(i) the costs, risks, and delay of trial and appeal;

(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;

(iii) the terms of any proposed award of attorneys’ fees, including timing of payment;

and

(iv) any agreement required to be identified.”

Id. at 23(e)(2)(C).

We have identified five other factors for assessing a settlement’s adequacy:

“(1) the relative strength of the plaintiffs’ case on the merits;

(2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial;

(3) the anticipated duration and expense of additional litigation;

(4) the solvency of the defendant[] and the likelihood of recovery on a litigated judgment;

and

(5) the degree of opposition to the settlement.”

In re Lumber Liquidators, 952 F.3d at 484 (citing In re Jiffy Lube, 927 F.2d at 159).

Here, the magistrate judge considered the three relevant Rule 23(e)(2) criteria.8

He found:

(i) “[t]here was a great risk [for the plaintiffs] to proceed to trial given the logistical difficulties and Nationstar’s defense”;

(ii) “[t]he point system alloc[a]tion in the settlement agreement ensure[d] that those with the greater loss will be compensated to a greater degree”;

and

(iii) “the proposed attorneys’ fees and costs in this case [were] fair and reasonable given the contentious nature of this case and the amount of time spent in litigation.”

J.A. 813–14.

The magistrate judge also weighed the five Jiffy Lube factors.

He found:

(1) “plaintiffs ha[d] viable claims”;

(2) “Nationstar had very strong defenses”;

(3) litigating the case to trial “would have likely been lengthy and it would certainly be quite, quite expensive”;

(4) “Nationstar can pay the 3 million dollars”;

and

(5) “[o]nly 137 class members have opted out of the settlement, which is about 0.04 percent of the settlement class.”

J.A. 810, 813–14.

McAdams doesn’t claim that the magistrate judge failed to address these factors; nor does she argue that he improperly weighed them.

Instead, she complains that the magistrate judge “failed to make a ‘rough estimate’ of what class members would have received had they prevailed at trial.”

Appellant’s Br. at 25.

But we have never required such an estimate.

Even the out-of-circuit cases McAdams cites don’t require an estimate in every case.

See Lusk v. Five Guys Enters. LLC, No. 17-cv-00762, 2019 WL 7048791,

at *7 (E.D. Cal. Dec. 23, 2019)

(explaining that a rough estimate of a plaintiff’s recovery is “meaningless” when one of its components lacks “factual and evidentiary foundation”).

And we’re not persuaded to impose this new requirement here.

In any event, while the magistrate judge didn’t estimate the potential recovery should the case proceed to trial, he found that most class members “probably only had nominal damages.”

J.A. 812.

That’s consistent with the resulting settlement.

At the fairness hearing, the judge said that 13.8% of the nearly 350,000 class members submitted claims.

He also noted that $1,300,000 in attorneys’ fees and costs would be deducted from the $3,000,000 fund.

Using only that information, one could roughly estimate that the average class member would recover $35, an amount that would adequately compensate a plaintiff with only nominal damages.

We’re satisfied that the magistrate judge correctly analyzed all the relevant Rule 23 criteria and thus didn’t abuse his discretion in finding the settlement agreement adequately compensated the plaintiffs.

V.

McAdams also argues that the settlement release is “ambiguous, overbroad, and beyond the permissible scope of release for class action settlements.” Appellant’s Br. at 17.

We disagree.

A court can approve a release of claims that share an “identical factual predicate” with claims alleged in a case.

Berry v. Schulman, 807 F.3d 600, 616 (4th Cir. 2015).

Claims have an “identical factual predicate” when they “depend[] upon the very same set of facts.”

TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 460 (2d Cir. 1982) (quoting Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 18 n.7 (2d Cir. 1981)).

We have twice held that a class action settlement can dispose of unalleged claims relying on an identical factual predicate.

In re MI Windows & Doors, Inc., Prod. Liab. Litig., 860 F.3d 218, 225 (4th Cir. 2017); Berry, 807 F.3d at 616.

Here, the release provides that “each Settlement Class Member . . . will be deemed to have . . . discharged the Released Parties . . . from all actions . . . in connection with the submission of loss mitigation applications during the Class Period.”

J.A. 186.

As the magistrate judge recognized, this is “a broad release.”

J.A. 816.

It encompasses a large swath of claims that might have been brought.

But nothing on the face of the release purports to apply to cases with a different factual predicate. Rather, the release is tied to cases arising out of a set action and time frame.

Our inquiry ends there.

Neither we nor the magistrate judge can decide the outer limit of the release’s scope. To do so would be advisory.

See Pelt v. Utah, 539 F.3d 1271, 1285 (10th Cir. 2008)

(“It is well settled that a court adjudicating a class action cannot predetermine the res judicata effects of its own judgment; that can only be determined in a subsequent suit.”).

Whether the release covers claims not alleged in the class action complaint is for a court enforcing the release to decide.

In fact, that’s exactly what happened with McAdams’s California claims.

In that case, McAdams alleges that Nationstar violated California law by falsely telling her that it was processing her loan modification application while it continued to foreclose on her home.

McAdams, 2021 WL 4462909, at *1.

The California court considered the release’s scope and found that her claims weren’t barred. Id. at *4–6.

The magistrate judge didn’t abuse his discretion in approving the release.

VI.

Finally, McAdams contends that the magistrate judge abused his discretion by approving the $1,300,000 attorneys’ fee request.

She raises three challenges to this ruling:

(1) the magistrate judge didn’t comply with Rule 23(h)(3)’s requirement that he “find the facts and state [his] legal conclusions”;

(2) the attorneys’ fee award constitutes an unacceptably large portion of the overall award;

and

(3) the “clear sailing” provision is impermissible.

All three challenges fail.

“We [] review an award of attorney’s fees for an abuse of discretion.”

In re Lumber Liquidators, 952 F.3d at 483. Thus, our “review is sharply circumscribed, and [the] fee award must not be overturned unless it is clearly wrong.”

Berry, 807 F.3d at 617 (cleaned up).

A.

McAdams’s first argument is frivolous.

True, the magistrate judge had to “find the facts and state [his] legal conclusions.”

Fed R. Civ. P. 23(h)(3).

But he did so. He stated at the fairness hearing:

“Both sides are represented by skilled counsel[,] and I have concluded that the proposed attorneys’ fees and costs in this case are fair and reasonable given the contentious nature of this case and the amount of time spent in litigation.”

J.A. 813.

The judge elaborated:

I don’t accept and I reject Ms. McAdams’ suggestion that the settlement was somehow collusive with respect to plaintiffs’ attorney fees.

The parties negotiated the settlement at arm’s length in the midst of contentious litigation.

Ms. McAdams complained that because defendants do not object to the attorneys’ fees request, the Court is deprived of the necessary adversary process to determine a reasonable award, the whole clear sailing provision.

But Ms. McAdams herself only presents general arguments about the fee award. She doesn’t cite to any work that counsel performed that was unwarranted or unnecessary or duplicative or provide evidence that the rates charged by counsel are unreasonable.

An award of 1.3 million dollars for attorneys’ fees and expenses is reasonable in this case.

Class counsels’ fee award is based on the presumptively reasonable rate set forth in our court’s local rules.

Class counsel has supported their request of [sic] billing records and other competent evidence to support their request. Lawyers routinely complain that these rates are too low, especially the rates that pertain to more experienced attorneys.

Counsel seeks 86 percent of their reasonable fee under the lodestar method. This is a significant reduction.

The Court has reviewed class counsels’ motion for attorneys’ fees and finds that the fees claimed are reasonable.

J.A. 817–18.

Because the magistrate judge “referred to Plaintiffs attorneys’ substantially uncontradicted evidence and arguments that the requested fees are justified by their work on the case,” he complied with Rule 23(h)(3).

CLRB Hanson Indus., LLC v. Weiss & Assocs., PC, 465 F. App’x 617, 619 (9th Cir. 2012).

B.

McAdams’s second argument, that the attorneys’ fees constitute an unacceptably large portion of the overall settlement, fares no better.

There are two main methods for calculating the reasonableness of attorneys’ fees—the lodestar method and the percentage- of-recovery method.

The lodestar method calculates reasonable fees “by multiplying the number of reasonable hours expended times a reasonable rate.”

McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (cleaned up).

“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable.”

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).

The percentage-of-recovery method considers the portion of the total settlement fund that will go to attorneys’ fees. In re Lumber Liquidators, 952 F.3d at 481.

A district court may choose the method it deems appropriate based on its judgment and the facts of the case.

See Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756, 760 (S.D. W. Va. 2009)

(“The Fourth Circuit has neither announced a preferred method for determining the reasonableness of attorneys’ fees in common fund class actions nor identified factors for district courts to apply when using the percentage method.”).

Here, the magistrate judge chose the lodestar method for assessing the fee request.

Using the presumptively reasonable rates set forth in the District of Maryland’s Local Rules, class counsel documented earned fees of $1,261,547.50. See D. Md. Local R. App. B(3).

They also proved $217,657.26 in unreimbursed expenses, for $1,479,204.76 in costs and fees.

But counsel requested only $1,300,000.

As the magistrate judge correctly recognized, we presume that figure is reasonable because it’s less than the lodestar figure.

McAdams doesn’t challenge counsel’s billing practices. Instead, she contends the fee award isn’t reasonable under the percentage-of-recovery method.

Counsel’s fees totaled $1,300,000, 43% of the common fund. We acknowledge that this percentage approaches the upper limit of a permissible recovery.

But it isn’t unheard of.

See In re SmithKline Beckman Corp. Sec. Litig., 751 F. Supp. 525, 533 (E.D. Pa. 1990)

(“Courts have allowed attorney compensation ranging from 19 to 45% of the settlement fund created.”).

Because the fee award isn’t so far afield of a standard recovery, we can’t, without more, find that the percentage-of-recovery calculation outweighs the strong presumption that the award is reasonable.

C.

Nor does McAdams’s third argument, that the fee award is unreasonable due to the “clear sailing” provision, hold water.

“[Clear sailing] agreements are troubling because they demonstrate that class counsel negotiated some aspect of their fee arrangement with the defendant, when counsel’s ethical obligation is to the class.”

Newberg on Class Actions § 13:9 (5th ed.).

But they are “not per se unreasonable.”

Bezdek v. Vibram USA, Inc., 809 F.3d 78, 84 (1st Cir. 2015).

“Rather, courts are directed to give extra scrutiny to such agreements.”

Id.; accord In re Southwest Airlines Voucher Litig., 799 F.3d 701, 712–13 (7th Cir. 2015); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 949 (9th Cir. 2011).

That’s precisely what the magistrate judge did here.

He rejected the “suggestion that the settlement was somehow collusive” and found that the parties negotiated the settlement “at arm’s length in the midst of contentious litigation” that spanned six years and included “a Motion to Dismiss, two Motions for Summary Judgment, a contested Motion for Class Certification, numerous discovery motions, [and] numerous depositions.”

J.A. 807, 817.

And he noted that class counsel “supported their request [with] billing records and other competent evidence.”

J.A. 817.

McAdams doesn’t challenge these findings.

Offering only generalized objections to clear sailing provisions, she doesn’t point to a single example in the over 150 pages of billing records indicating class counsel breached their ethical obligations.

We reject McAdams’s challenge to the fee award.

VII.

For the reasons given, the magistrate judge’s judgment is

AFFIRMED.

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corruption

Akerman’s Lawyer Travers Clark On A Saturday Foreclosure Filin’ Bonus

Morrison, a homeowner represented by the local legal aid society, loses his case when dismissed WITH PREJUDICE.

Published

on

By

Morrison v. Carrington Mortgage Services LLC

(3:22-cv-00013)

District Court, E.D. Virginia

xxx

FEB 5, 2022 | REPUBLISHED BY LIT: FEB 6, 2022

LIV COMMENTARY (APRIL 6, 2022)

CENTRAL VIRGINIA LEGAL AID SOCIETY, INC. have achieved little for Morrison, if anything. The case is over before it has started. A dismissal WITH PREJUDICE is effectively a loss to the homeowner, who cannot bring these claims again to federal court.

STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(ii)

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), Plaintiff James Morrison, Jr. stipulates that this action shall be dismissed with prejudice as to Defendants Carrington Mortgage Services LLC, Wilmington Savings Fund Society, FSB as Trustee of ACM Stanwich Alamosa 2020 Trust and Professional Foreclosure Corporation of Virginia and that each party to this Stipulation shall bear their own costs and attorney fees incurred in this action. Pursuant to Kokkonen v. Guardian LifeInsurance Co. of America, 511 U.S. 375 (1994), this Stipulation of Dismissal explicitly reserves in this Court jurisdiction to enforce the terms of the Parties’ Settlement Agreement.
As evidenced by the endorsements herein, Defendants consent to the dismissal provided for herein.
DATED this 13th day of March, 2022.

Respectfully submitted,

/s/ Jessica W. Thompson

Jessica W. Thompson (VSB # 75514)

CENTRAL VIRGINIA LEGAL AID SOCIETY, INC.
101 W. Broad Street, Suite 101
Richmond, VA 23220
Telephone: (804) 200-6037
Facsimile: (804) 864-8794 Email: jessica@cvlas.org Counsel for Plaintiff

SEEN AND AGREED:

/s/ J. Travers Clark
James Travers Clark (VSB # 94706)
AKERMAN LLP
750 Ninth Street, N.W., Suite 750
Washington, D.C. 20001
Telephone: (202) 393-6222
Facsimile: (202) 393-5959 Email: trav.clark@akerman.com
Counsel for Carrington Mortgage Services LLC and Wilmington Savings Fund Society, FSB
as Trustee of ACM Stanwich Alamosa 2020 Trust
/s/ Malcolm B. Savage, III
Malcolm Savage, Esq. (VSB # 91050)
LOGS Legal Group, LLP
10021 Balls Ford Road, Suite 200
Manassas, VA 20109
Telephone: 703-449-20109 Email: msavage@logs.com
Counsel for Professional Foreclosure Corporation of Virginia

 

Defense Counsel for James Morrison, Jr.

LIV would have transcribed this removal notice, but for it being modified to an image PDF version by the Virginia Federal Court.

Just Call Me Trav

The internal memo from @uscourts has gone viral

U.S. District Court
Eastern District of Virginia – (Richmond)
CIVIL DOCKET FOR CASE #: 3:22-cv-00013-DJN

Morrison v. Carrington Mortgage Services LLC et al
Assigned to: District Judge David J. Novak
Cause: 28:1441 Notice of Removal -Violation of Real Estate Settlement Procedure Act
Date Filed: 01/05/2022
Date Terminated: 03/16/2022
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Federal Question
Plaintiff
James Morrison, Jr. represented by Jessica Wagner Thompson
Central Virginia Legal Aid Society
Southside Office
229 N Sycamore Street
Petersburg, VA 23803
804-518-2124
Fax: 804-861-4311
Email: jessica@cvlas.org
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Carrington Mortgage Services LLC represented by James Clark
750 Ninth Street, NW
Ste 750
Washington, DC 20001
202-393-6222
Email: trav.clark@akerman.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Wilmington Savings Fund Society, FSB as Trustee of ACM Stanwich Alamosa 2020 Trust represented by James Clark
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
Professional Foreclosure Corporation of Virginia represented by Malcolm Brooks Savage , III
Shapiro & Brown, LLP
501 Independence Parkway
Suite 203
Chesapeake, VA 23320
(703) 449-5800
Fax: (703) 449-5850
Email: msavage@logs.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
01/06/2022 2 Civil Cover Sheet re 1 Notice of Removal, by Carrington Mortgage Services LLC. (Clark, James) (Entered: 01/06/2022)
01/18/2022 3 ANSWER to Complaint by Carrington Mortgage Services LLC, Wilmington Savings Fund Society, FSB as Trustee of ACM Stanwich Alamosa 2020 Trust.(Clark, James) (Entered: 01/18/2022)
01/24/2022 4 ORDER Setting Pretrial Conference – Initial Pretrial Conference set for 2/17/2022 at 02:00 PM in Richmond Telephonically before District Judge David J. Novak. Signed by Patrick F. Dillard with permission of District Judge David J. Novak on 1/24/2022. (cgar) (Entered: 01/24/2022)
03/09/2022 5 NOTICE of Appearance by Malcolm Brooks Savage, III on behalf of Professional Foreclosure Corporation of Virginia (Savage, Malcolm) (Entered: 03/09/2022)
03/13/2022 6 STIPULATION of Dismissal by James Morrison, Jr. (Thompson, Jessica) (Entered: 03/13/2022)
03/16/2022 7 ORDER pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the Court hereby DISMISSES WITH PREJUDICE all claims by Plaintiff against Defendants.

Each party shall bear their own costs and attorney fees incurred in this action.

The Court retains jurisdiction to enforce the terms of the Parties’ Settlement Agreement pursuant to Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994).

This case is now CLOSED.

Signed by District Judge David J. Novak on 3/16/22. (adun, )

(Entered: 03/16/2022)

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bankers

Henry the Third Returns to the Battlefield to Protect the Roman Castle

Published

on

By

Roman v. U.S. Bank National Association as Trustee for GSAA Home Equity Trust 2006-12, Asset-Backed Certificates Series 2006-12

(3:21-cv-00813)

District Court, E.D. Virginia

DEC 29, 2021 | REPUBLISHED BY LIT: JAN 3, 2022

Update Feb 26, 2022

Case remanded by another intentionally scanned opinion which cannot be transcribed.

THERESA B. ROMAN, Plaintiff,

v.

U.S. BANK NATIONAL ASSOCIATION, as TRUSTEE for GSAA HOME EQUITY TRUST 2006-12, ASSET-BACKED CERTIFICATES, SERIES 2006-12, Defendant.

Civil Action No. 3:18cvl57-HEH.
United States District Court, E.D. Virginia, Richmond Division.
May 18, 2018.
Theresa B. Roman, Plaintiff, represented by Henry W. McLaughlin, III, The Law Office of Henry McLaughlin, P. C.

U.S. Bank National Association, as Trustee for GSAA Home Equity Trust 2006-12, Asset-Backed Certificates, Series 2006-12, Defendant, represented by John Alexander Nader, McGlinchey Stafford PLLC.

REPUBLISHED BY LIT: JAN 3, 2022

MEMORANDUM OPINION

HENRY E. HUDSON, District Judge.

This matter is before the Court on Plaintiff Theresa B. Roman’s (“Plaintiff”) Motion for Leave to File an Amended Complaint and Seeking Leave to File Late Opposition to Motion to Dismiss on the Pleadings;

Alternatively, Motion for Leave to Dismiss Without Prejudice(ECF No. 7), filed on April 20, 2018.

On May 7, 2018, this Court issued an Order (ECF No. 11) denying Plaintiff leave to file an amended complaint and granting Plaintiff’s alternative motion to dismiss without prejudice.

The Court’s reasoning underlying that Order is articulated below.

I. BACKGROUND

On April 28, 2006, Plaintiff’s mother Venice E. Briggs (“Briggs”) entered into a loan agreement with Madison Funding Inc. that was eventually assigned to Defendant U.S. Bank National Association (“Defendant”). (Compl. ¶¶ 4,6, ECF No. 1-3.)

The loan was secured by a deed of trust—signed by both Briggs and Plaintiff—that became a lien on the property located at 5405 Wellington Ridge Road, Richmond, Virginia 23231 (“Property”). (Id. ¶ 4.)

In August 2006, Venice Briggs died, and Plaintiff became the sole owner of the Property and the personal representative of Briggs’s estate. (Id. ¶¶ 9, 14.)

In September 2006,Plaintiff “re-executed the deed of trust to correct a technical error in the description of the residence.” (Id. ¶ 9.)

Paragraph 22 of the re-executed deed (“Deed”)contains a provision that allows for an acceleration of the loan in the event of a default. (Id. at Ex. A.)

This provision requires the Lender to send the Borrower notice prior to acceleration that provides the Borrower with information related to curing the default. (Id.)

According to paragraph 15 of the Deed, “notice to any one Borrower shall constitute notice to all Borrowers.” (Id.) The Deed also includes a page titled “Exhibit A,” which contains a handwritten message that states: “said Venice Briggs departed from this life on or around August 31, 2006.” (Id.)

However, Venice Briggs remains listed as a Borrower in the Deed. (Id.)

On July 12, 2017, Defendant sent a notice to the Property that was addressed to Venice Briggs and provided the information required by paragraph 22. (Id. ¶ 17.)

Subsequently, a foreclosure of the Property was scheduled for January 18, 2018, which Plaintiff contends is “void, alternatively voidable.” (Id. ¶ 29.)

II. STANDARD OF REVIEW

Rule 15 of the Federal Rules of Civil Procedure provides that parties should “freely” be given leave to amend their pleadings “when justice so requires.” Fed. R. Civ. P. 15(a)(2).

As the Fourth Circuit has explained,”[a] motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile.” Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298(4th Cir. 2008)(citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)).

Amendment is futile when a proposed amended complaint fails to state a claim. U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008). Whether a complaint fails to state a claim, and thus whether amendment would be futile, is analyzed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Thus, the “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell All. Corp. v. Twombly, 550 U.S. 544, 555(2007) (citation omitted), to one that is “plausible on its face,” id. at 570, rather than merely “conceivable.” Id.

In considering a Rule 12(b)(6) motion, a Plaintiff’s well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. 

T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citation omitted).

Legal conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

III. DISCUSSION

Plaintiff’s Complaint asserts two counts.

Count One alleges that Defendant breached the Deed by addressing the notice to Briggs, even though Defendant was made aware of Briggs’s death in 2006.

Count Two alleges that Trustee Services, which was not included as a party to this action, owed Plaintiff a fiduciary duty not to foreclose on the Property.

Plaintiff’s proposed Amended Complaint (ECF No. 7-1) only asserts one count for breach of the Deed and adds Trustee Services as a nominal party.

The claim for breach of the Deed in both Plaintiff’s Complaint and her proposed Amended Complaint rely on the same allegations.

In Virginia, “[t]he elements of a breach of contract action are

(1) a legally enforceable obligation of a defendant to a plaintiff;

(2)the defendant’s violation or breach of that obligation;

and

(3)injury or damage to the plaintiff caused by the breach of obligation.” 

William H. Gordon Assocs., Inc. v. Heritage Fellowship, United Church of Christ, 784 S.E.2d 265, 274 (Va. 2016).

“When the language of a deed is ‘clear, unambiguous, and explicit,’ a court interpreting it ‘should look no further than the four comers of the instmment under review.'”

Utsch v. Utsch, 581 S.E.2d 507, 509 (Va. 2003) (quoting Pyramid Dev. v. D&J Assocs., 553 S.E.2d 725, 728 (Va. 2001)).

Plaintiff’s proposed Amended Complaint is futile. Plaintiff does not contend that the substance of the notice provided by Defendant was deficient.

Instead, her sole allegation is that addressing the notice to her deceased mother breached the Deed. The Deed required notice to be given to the Borrower and stated “[n]otice to any one Borrower shall constitute notice to all Borrowers.”

Plaintiff’s mother remained listed as a Borrower on the Deed after Plaintiff re-executed it and was listed as a Borrower when Defendant sent the notice.

Accordingly, addressing the notice to Briggs was not improper based upon the plain language of the Deed.

Additionally, Plaintiff does not allege in either her Complaint or her proposed Amended Complaint that she would have been able to cure the default had the notice been addressed to her.

Notwithstanding dicta in Squire v. Va. Hous. Dev. Auth., 758 S.E.2d 55 (Va. 2014),[1] Virginia law requires a plaintiff bringing a breach of contract action to plead damages.

In this case, Plaintiff did not identify the damage she allegedly suffered due to the breach and thus did not state a claim upon which relief could be granted.

For these reasons. Plaintiff’s Motion for Leave to File an Amended Complaint and Seeking Leave to File Late Opposition to Motion to Dismiss on the Pleadings was denied.

Alternatively, Plaintiff moved for leave to dismiss the action without prejudice. After due consideration, the Court determined that a dismissal without prejudice was an appropriate resolution to this matter and granted Plaintiff’s alternative motion.

IV. CONCLUSION

Based upon the foregoing reasons. Plaintiff’s Motion for Leave to File an Amended Complaint and Seeking Leave to File Late Opposition to Motion to Dismiss on the Pleadings was denied, and Plaintiff’s altemative Motion for Leave to Dismiss Without Prejudice was granted.

Consequently, Defendant’s Motion for Judgment on the Pleadings and to Dismiss Complaint pursuant to Rule 12(c) was denied as moot, and the case was dismissed without prejudice.

The Clerk is DIRECTED to send a copy of this Memorandum Opinion to all counsel of record.

[1] The majority in Squire cites Bayview Loan Servicing, LLC v. Simmons, 654 S.E.2d 898 (Va. 2008), as a case where the Virginia Supreme Court “affirmed an award of damages against a lender in a post-foreclosure situation” in spite of the fact that “[t]he borrower did not allege what she would have done to prevent the foreclosure sale had she received notice.”

Squire, 758 S.E.2d at 61 n.2.

Importantly though, Bayview did not examine the issue of pleading damages in an action for breach of a deed of trust.

Instead, the sole assignment of error in Bayview involved interpreting Va. Code Ann. § 55-59.1(A) to determine whether a notice provided by the lender could be understood to have “effectively exercised the right of acceleration.”

Bayview, 654 S.E.2d at 900.

Moreover,the issue of damages was not present in Squire as the plaintiff in that case “had money with which to reinstate the loan and offered to pay it.”

Squire, 758 S.E.2d at 68 (Mims, J., concurring).

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