Sibert v. Wells Fargo Bank, N.A., Civil Action No. 3:14CV737–HEH
| Decision Date | 04 May 2016 |
| Docket Number | Civil Action No. 3:14CV737–HEH |
| Parties | Richard D. Sibert, Plaintiff, v. Wells Fargo Bank, N.A., Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Richard Thomas Harry, Jr., Harry Law Office, Louisa, VA, John Daniel Hafemann, Military Justice Attorneys, Beaufort, SC, for Plaintiff.
Hunter Wilmer Sims, Jr., Kaufman & Canoles PC, Norfolk, VA, Terry Catherine Frank, Kaufman & Canoles PC, Richmond, VA, for Defendant.
(Cross Motions for Summary Judgment)
This matter arises from the alleged wrongful foreclosure of Plaintiff Richard D. Sibert's ("Sibert" or "Plaintiff") residential property by Wells Fargo Bank, N.A. ("Wells Fargo"). Sibert, a Sergeant in the United States Army, alleges that the foreclosure violated the Servicemembers' Civil Relief Act ("SCRA" or "Act"), which prohibits foreclosure on a servicemember's property during a period of military service without a court order. 50 U.S.C. Appx. § 533(c) (hereinafter, "SCRA § 533(c)")1 .
The parties filed cross-motions for summary judgment, through which Wells Fargo raised the issues of judicial estoppel and standing. The Court heard oral argument on the issue of judicial estoppel on June 23, 2015. Having determined that judicial estoppel does not bar Plaintiff's SCRA claim, the issue became whether Plaintiff, in his individual capacity, had standing to maintain the action due to his 2011 voluntary Chapter 7 bankruptcy case. The Court stayed the matter pending the reopening of Plaintiff's bankruptcy case to allow Sibert's trustee in bankruptcy the opportunity to pursue or abandon the present cause of action. (ECF No. 68.) The trustee having been substituted as the proper party in interest, the Court confirmed the existence of standing and lifted the stay by Memorandum Order entered on March 4, 2016 (ECF No. 75).
The matter is again before the Court on the parties' cross-motions for summary judgment (ECF Nos. 21, 28). The Court will dispense with oral argument as to remaining issues raised in the parties' motions, as they have been adequately briefed, and oral argument would not aid in the decisional process. See E.D. Va. Loc. Civ. R. 7 (J). For the reasons stated herein, the Court will grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion for Summary Judgment.
In reviewing cross-motions for summary judgment, the Court will consider each motion separately on its own merits to determine if either party deserves judgment as a matter of law. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003)(citations omitted). In considering each motion, the Court will exercise great care to resolve any factual disputes and "competing, rational inferences" in the light most favorable to the opposing party. Id. (internal quotation marks and citation omitted).
At the outset, the Court notes that both Plaintiff's Brief in Support of his Motion for Summary Judgment and his Brief in Opposition to Wells Fargo's Motion for Summary Judgment fail to include specifically captioned sections listing all material facts as to which he contends are undisputed or genuinely in dispute, respectively, as required by E.D. Va. Loc. Civ. R. 56 (B)2 and consistent with Fed. R. Civ. P. 56(c)(1). Under the Local Rules, the Court may accept those facts identified by the movant as undisputed to be admitted, as well as assume admitted those facts not disputed by reference to record evidence. E.D. Va. Loc. Civ. R. 56 (B). Despite Plaintiff's failure to set forth such designations, this Court has made a reasonable effort to search the record in an attempt to identify those facts that are genuinely in dispute and those that are undisputed. Where appropriate, however, the Court reserves the right to consider Wells Fargo's statement of the facts as undisputed, as permitted by the Local Rules and Fed. R. Civ. P. 56(e).
The Court has concluded that the following narrative represents the undisputed facts for the purpose of resolving the cross-motions for summary judgment:
Sibert entered the United States Navy on July 9, 2004. On May 15, 2008, while on active duty, Sibert obtained a loan in the amount of $174,650.00, secured by a Note and Deed of Trust, and purchased a residential property at 3706 Northwood Court, Virginia Beach, Virginia 23452. (ECF No. 21–1; ECF No. 21–2; ECF No. 29–1 at 1–2, 44; ECF No. 29–2; ECF No. 29–3.) Sibert was honorably discharged from the Navy on July 8, 2008. (ECF No. 21–2.)
In March 2009, eight months after Plaintiff's discharge, Wells Fargo instructed its trustee to commence foreclosure proceedings on Sibert's home. (ECF No. 21–3.) In April 2009, Sibert re-entered the service by joining the United States Army, and presently remains on active duty. (ECF No. 21 at 2.) A foreclosure sale was held on May 13, 2009, at which Sibert's home was sold. (ECF No. 21–4.) On June 4, 2009, Sibert executed a "Move–Out Agreement," entitling him to $2,000.00 to assist with relocation efforts. He also executed a W–9 Form in order to receive the relocation funds. The 3706 Northwood Court property was thereafter conveyed to two individuals by deed, dated September 11, 2009. (ECF No. 29–6.) Subsequently, on October 27, 2009, Sibert executed a "Servicemembers Civil Relief Act Addendum to Move–Out Agreement." (ECF No. 29–1 at 43.)
On January 25, 2011, Sibert filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Virginia, Case No. 11–70302. (ECF No. 29–7.) Sibert's bankruptcy petition and schedules do not list any claims or potential claims against Wells Fargo as an asset or otherwise. (ECF No. 29–8.) On May 9, 2011, Sibert received a complete discharge pursuant to 11 U.S.C. § 727. (Id. )
Plaintiff filed suit on October 29, 2014. (Compl., ECF No. 1.) He filed a Motion for Summary Judgment on March 4, 2015 with a Memorandum in Support thereof. (ECF No. 21.) Wells Fargo filed a Memorandum in Opposition to Plaintiff's Motion for Summary Judgment on March 17, 2015 (ECF No. 24), and then filed its Motion for Summary Judgment with a Memorandum in Support thereof on April 2, 2015 (ECF Nos. 28, 29). Plaintiff responded to Wells Fargo's Motion for Summary Judgment on April 6, 2015 (ECF Nos. 30, 31), and Wells Fargo replied on April 9, 2015 (ECF No. 32).3
The standard of review for cross motions for summary judgment is well-settled in the Fourth Circuit.
On cross-motions for summary judgment, a district court should "rule upon each party's motion separately and determine whether summary judgment is appropriate as to each under the [Federal Rule of Civil Procedure] 56 standard." Monumental Paving & Excavating, Inc. v. Pa. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir.1999). Summary judgment is appropriate only if the record shows "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c).
Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156 (4th Cir.2010) (alteration in original).
The relevant inquiry in the summary judgment analysis is "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505. A material fact is one that might affect the outcome of a party's case. Id. at 248, 106 S.Ct. 2505 ; JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). A "genuine" issue concerning a "material" fact only arises when the evidence, viewed in the light most favorable to the nonmoving party, is sufficient to allow a reasonable trier of fact to return a verdict in that party's favor. Id.
Furthermore, to defeat an otherwise properly supported motion for summary judgment, the nonmoving party must rely on more than conclusory allegations, "mere speculation or the building of one inference upon another," or the "mere existence of a scintilla of evidence" concerning a material fact. Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir.1997) (citations omitted); Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Accordingly, to deny a motion for summary judgment, "[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a question of fact must be adequate." Thompson v. Everett, Inc. v. Nat'l Cable Adver., LP, 57 F.3d 1317, 1323 (4th Cir.1995). "Thus, if the evidence is merely colorable or not significantly probative, it may not be adequate to oppose entry of summary judgment." Id. (quotation marks and citation omitted).
The overarching issue to be resolved by this Court is whether or not Plaintiff's home mortgage loan qualifies under SCRA § 533(a), such that Wells Fargo was prohibited by SCRA § 533(c) from foreclosing on Plaintiff's home without a court order. Plaintiff contends that the SCRA applies to his loan. Wells Fargo disagrees, arguing that the SCRA does not apply to his loan, and alternatively, that even if SCRA § 533(a) does apply, Plaintiff voluntarily waived his rights under the SCRA.4
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