Summary of this case from Reid v. For the reasons that follow, the Court will grant both motions and dismiss Plaintiff's Complaint with prejudice. Francince Modderno brings this suit pro se on behalf of herself and the estate of Claude V. Bache collectively, "Plaintiffs" against Defendants, seeking damages and equitable relief in connection with a non-judicial foreclosure sale of real property located in Loudoun County, Virginia.
The following facts are taken from Plaintiff's Complaint and the original documents referenced by that Complaint. For the purposes of this motion, the facts are presumed true. Plaintiff Bache died testate on or about June 29, Ocwen Mot. Plaintiff Modderno was appointed as executrix of his estate on August 20, , pursuant to an Order entered by the Loudoun County Circuit Court. The Note, which Plaintiffs signed, included specific language regarding the possibility of transfer.
To secure repayment of this debt, Plaintiffs executed a deed of trust on October 20, , encumbering the real property known as Needles Court, Leesburg, Virginia the "Property".
This security instrument was then recorded in the public land records of Loudoun County, Virginia the "Deed of Trust". It also included the following language: "The Note or partial interest in the Note together with this Security Instrument can be sold one or more times without prior notice to the Borrower" and that any such transactions "shall bind. After the Note and Deed of Trust were executed, First Savings, the original lender, transferred its interest in the loan to Residential Funding Corporation.
This instrument was recorded in the Loudoun County land records on June 30, the "Assignment". She chose not to include the estate of Plaintiff Bache at that time, although he was deceased and she had already been appointed as executrix of his estate. On September 29, , the named defendants removed the Lawsuit to this Court. On December 20, , after briefing, Plaintiff's claims were dismissed for failure to state a claim upon which relief can be granted.
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This instrument was thereafter recorded in the Loudoun County land records. Surety then sent Plaintiffs a notice that included a copy of a lost note affidavit signed by Jeffrey Dunn on behalf of Ocwen on April 29, Plaintiffs describe the notice they received as a "notice letter of foreclosure. The Complaint fails to provide any additional details, however, including who scheduled the foreclosure sale and the date of the alleged sale.
See id. In addition, Plaintiffs' Complaint alleges that they recently received an account history from Ocwen covering the period from July 13, to July 11, The account history shows that Ocwen paid Loudoun County real estate taxes for the Property on behalf of Plaintiffs. Plaintiffs claim that they qualified for tax relief "for five out of the last six years. No additional details are given. Defendant Ocwen filed a notice of removal on January 20, Following the waiver of oral argument by both Defendants, this matter is now ripe for disposition. Martin , F. The Supreme Court has stated that in order "[t]o survive a motion to dismiss, a [c]omplaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.
Iqbal , U. Twombly , U. While legal conclusions can provide the framework for a complaint, all claims must be supported by factual allegations. Based upon these allegations, the court must determine whether the plaintiff's pleadings plausibly give rise to an entitlement to relief. Legal conclusions couched as factual allegations are not sufficient, Twombly , U.
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REAL ESTATE TAX AUCTION: Loudoun County, VA
The plaintiff, however, does not have to show a likelihood of success; rather, the complaint must merely allege - directly or indirectly - each element of a "viable legal theory. At the motion to dismiss stage, the court must construe the complaint in the light most favorable to the plaintiff, read the complaint as a whole, and take the facts asserted therein as true.
Generally, a district court does not consider extrinsic materials when evaluating a complaint under Rule 12 b 6. It may, however, consider "documents incorporated into the complaint by reference. Manchin , F. In addition, the court may consider documents attached to the defendant's motion to dismiss if those documents are central to the plaintiff's claim or are "sufficiently referred to in the complaint," so long as the plaintiff does not challenge their authenticity.
Witthohn v. App'x , 4th Cir.
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The Court construes the pro se Complaint in this case more liberally than those drafted by an attorney. See Haines v. Kerner , U. Further, the Court is aware that "[h]owever inartfully pleaded by a pro se plaintiff, allegations are sufficient to call for an opportunity to offer supporting evidence unless it is beyond doubt that the plaintiff can prove no set of facts entitling him to relief.
Echols , No. Beto , U. Nevertheless, while pro se litigants cannot "be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them. City of Hampton , F. Thus, even in cases involving pro se litigants, the Court "cannot be expected to construct full blown claims from sentence fragments.
Further, the Court may not construct a plaintiff's legal arguments for him or her. See , e. Endicott , F. Ocwen asserts that Plaintiffs' claims that her mortgage lender and its agents are not entitled to enforce the Note and Deed of Trust through foreclosure are barred by res judicata. Under this doctrine, a final judgment on the merits in a prior suit precludes another suit between the same parties or their privies on the same cause of action.
Nash Cnty. Biltmore Co.
For res judicata to bar an action, the moving party must establish: 1 the prior judgment was final and on the merits; 2 the parties are identical, or in privity, in both actions; and 3 the claims in the subsequent action are based upon the same cause of action as in the prior matter. Pittston Co.
United States , F. Res judicata bars claims brought in a previous suit and any claims that could have been brought. Pueschel v. Here, all three elements of res judicata are satisfied. As a result, Plaintiffs fail to state a claim upon which relief can be granted. First, there was a final judgment on the merits in Plaintiff's prior lawsuit, which was filed in The Lawsuit questioned whether RFC was the holder of the Note entitled to foreclose, as well as the validity of the Note endorsements. It was dismissed with prejudice by this Court for failure to state a claim on December 20, Second, the parties to this lawsuit are in privity with the parties from the Lawsuit.
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