(Jefferson County 17-C-201)
Alex Rahmi, pro se, appeals the May 17, 2018, order of the
Circuit Court of Jefferson County dismissing an action, in
which he sought an injunction to prevent the completion of
the foreclosure sale of his residential property located at
638 Marlow Road, Charles Town, West Virginia. Respondents
Pill & Pill, PLLC ("Pill & Pill"), Bank of
New York Mellon Trust Company, National Association (f/k/a
The Bank of New York Trust Company, N.A.) ("bank"),
and R & D Investments, LLC ("R & D"), by
counsel J. Mark Sutton, Christopher A. Dawson, and Abraham M.
Ashton, filed a summary response in support of the circuit
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
residential property, located at 638 Marlow Road, Charles
Town, West Virginia, was sold at a foreclosure sale in August
of 2017. Pill & Pill served as the trustee that sold the
property. The Bank was the holder of the deed of trust. R
& D purchased the property at the foreclosure sale.
Collectively, these entities will be referred to as
February 21, 2012, petitioner filed a bankruptcy action
pursuant to Chapter 11 of the United States Bankruptcy
Code. On February 28, 2014, the bankruptcy
trustee filed a motion pursuant to 11 U.S.C. § 1112(b)
to convert petitioner's Chapter 11 bankruptcy into a
Chapter 7 bankruptcy following petitioner's settlement of
a Canadian court action for approximately $170, 000 without
court approval and his failure to adequately disclose and
account for the settlement proceeds. By order entered May 16,
2014, the United States Bankruptcy Court of the Northern
District of West Virginia ("bankruptcy court")
granted the trustee's motion and converted
petitioner's bankruptcy into one under Chapter 7. The
bankruptcy trustee subsequently filed a motion for summary
judgment on the trustee's claim that petitioner should be
denied a discharge of his debts, and by order entered August
24, 2015, the bankruptcy court ruled that petitioner's
debts would not be discharged. In denying petitioner a
discharge, the bankruptcy court found that he intentionally
transferred and concealed the settlement proceeds from the
Canadian action. See In Re Rahmi, 535 B.R. 655, 661
(Bankr. N.D. W.Va. 2015).
September 2, 2015, the bank filed a motion to lift the
bankruptcy stay so that a foreclosure proceeding could
proceed against petitioner's residential property. By
order entered November 24, 2015, the bankruptcy court found
cause pursuant to 11 U.S.C. § 362(d)(1) for lifting the
In this case, [petitioner]'s failure to perform under the
contractual obligations of the loan is for an exceedingly
long period of time; that is to say, five years of
non-performance. Such a long and unmitigated failure to
perform under the contract is sufficient to constitute
independent cause to lift the stay; especially in the context
of a Chapter 7 case.
order, the bankruptcy court noted that the bank filed the
motion to lift the stay in "its capacity as successor to
JPMorgan Chase Bank, N.A., as Trustee for Residential Asset
Mortgage Products, Inc., [GMAC Mortgage] Loan Trust
August 15, 2017, Pill & Pill sold, and R & D
purchased, petitioner's property at a foreclosure sale.
On August 18, 2017, petitioner filed a complaint against Pill
& Pill in the Circuit Court of Jefferson County, seeking
an injunction to prevent the completion of the foreclosure
sale of his residential property "pending final
resolution by [the] [b]ankruptcy [c]ourt[.]" By order
entered August 23, 2017, the bankruptcy court denied
petitioner's Rule 60(b) motion for relief from the August
24, 2015, order denying him a discharge of his debts.
September 13, 2017, Pill & Pill filed an answer denying
the allegations set forth in petitioner's complaint in
the instant action. Petitioner filed amended complaints on
November 17, 2017, and April 11, 2018. In his second
amended complaint, petitioner sought compensation "for
injuries and damages caused by [GMAC Mortgage]." On
January 31, 2018, the circuit court granted motions to
intervene in the action filed by the bank and R & D.
Thereafter, on March 29, 2018, the bank filed a motion to
dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules
of Civil Procedure, arguing that petitioner's
"frivolous litigation" was preventing the
completion of the foreclosure sale to R & D, including
"the recording of a [t]rustee's [r]eport of [s]ale
and [t]rustee's [d]eed." Pill & Pill and R &
D joined in the bank's motion to dismiss petitioner's
order entered May 17, 2018, the circuit court dismissed the
instant action. The circuit court found petitioner's
allegations "virtually unintelligible," but could
be liberally construed as asserting a fraud claim against
GMAC Mortgage, which was not a defendant in the case. The
circuit court further found that petitioner failed to set
forth his allegations of fraud with particularity as required
by Rule 9(b) of the West Virginia Rules of Civil Procedure.
Therefore, the circuit court concluded that petitioner failed
to state a claim upon which relief can be
12(b)(6) of the Rules of Civil Procedure provides that a
defendant may file a motion to dismiss for "[a] failure
to state a claim upon which relief can be granted."
"Appellate review of a circuit court's order
granting a motion to dismiss a complaint is de
novo." Syl. Pt. 2, State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995). Rule 9(b) provides that "[i]n all
averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity." In
Syllabus Point 1, in part, of Hager v. Exxon Corp.,
161 W.Va. 278, 241 S.E.2d 920 (1978), we held that
"fraud or mistake must be alleged in the appropriate
pleading with particularity."
appeal, petitioner's arguments are difficult to follow.
Generally, petitioner contends that his allegations
sufficiently state a fraud claim against GMAC Mortgage.
Respondents argue that the circuit court properly dismissed
petitioner's action for a failure to state a claim upon
which relief can be granted. We agree with respondents'
position and concur with the circuit court's finding that
GMAC Mortgage is not a defendant in this case and, even if it
were, petitioner fails to set forth his allegations of fraud
with particularity. We find that, regardless of whether
petitioner is seeking an injunction, money damages, or both,
the claim upon which relief is sought is not sufficiently
stated given the heightened standard for pleading fraud as
required by Rule 9(b) and Syllabus Point 1 of Hager.
Id. at 278, 241 S.E.2d at 921. Therefore, based on
our review of the record, we conclude that the circuit court
did not err in granting respondents' motion to dismiss
foregoing reasons, we affirm the circuit court's May 17,
2018, order ...