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Sabatino v. Pill

United States District Court, N.D. West Virginia

September 14, 2017

COLEEN D. SABATINO, Plaintiff,
v.
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 ORDER

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         I. Background

         The pro se[1] 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.

         The 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.

         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 payments. The plaintiff never made any of the three required test payments and, accordingly, WVHDF denied her application for a loan modification.

         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 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.

         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 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.

         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 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.

         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, 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.

         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 Roseboro[2] 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 restraining order.

         II. Applicable Law

         A. 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.” 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).

         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. 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 ...


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