United States District Court, N.D. West Virginia
COLEEN D. SABATINO, Plaintiff,
RICHARD A. PILL, ESQ. and WEST VIRGINIA HOUSING DEVELOPMENT FUND, a public body corporate and governmental instrumentality of the State of West Virginia, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS COMPLAINT AND DENYING AS MOOT
PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se 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. Defendant West 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. The plaintiff
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 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.
plaintiff defaulted on her loan obligation to WVHDF in
February 2015. 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 January 2016.
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 payments. The plaintiff never made any of
the three required test payments and, accordingly, WVHDF
denied her application for a loan modification.
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 Virginia. 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 sale. 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.
The contract indicated that the sale was to commence on or
before January 22, 2017.
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 realtor informed WVHDF that there was another
offer on the plaintiff's property from the same buyers
who had entered into the earlier November 22, 2016 contract
to purchase the property from the plaintiff. Also on May 8,
2017, the plaintiff filed her complaint and motion for a
temporary restraining order with this Court.
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 agreement to delay
the foreclosure sale was based on the plaintiff's
representation of the pending sale of the subject property
and that the agreed delay would allow the sale to be
completed. The Court granted the defendants' motion to
continue and stayed the case.
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, 2017. 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 briefing schedule.
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 Roseboro notice to the pro se
plaintiff, and the plaintiff timely filed her response to the
defendants' motion to dismiss. The defendants then filed
a reply to the plaintiff's response. The defendants also
filed a response to the plaintiff's motion for a
temporary restraining order. After the full briefing of the
motions, counsel for the defendants informed the Court that
the foreclosure sale has again been postponed, this time
until September 20, 2017. For the following reasons, the
Court grants the defendants' motion to dismiss and denies
as moot the plaintiff's motion for a temporary
Motion to Dismiss
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.” Id. (citing Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
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. 1998). 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.
Id. For purposes of the motion to dismiss, the
complaint is construed in the light most favorable to the
party making ...