Forge LLC v. Pearson, 2019 Va. Cir. LEXIS 35 (Fairfax County Feb. 28, 2019)

Because a confessed judgment that was entered by the attorney-in-fact for a debtor and in favor of a creditor was void ab initio — as the court did not have jurisdiction to enter the confessed judgment for an amount that exceeded that provided for in the promissory note  — the debtor’s motion to vacate was not untimely filed after the 21-day time limit.

Wolf v. Federal National Mortgage Association, 830 F. Supp.2d 153, 162 (W.D.Va. 2011), affirmed in 2013 U.S. App. LEXIS 4300 (4th Cir. 2013).

The district court’s holding that borrower’s rescission claim had expired was contrary to the law of the circuit because the borrower did not need to file a lawsuit seeking rescission within the three-year time frame; instead, the borrower only had to notify her lender that she was exercising her right of rescission within the three-year limit. However, the borrower’s bare assertion that the fees charged were unreasonable stopped short of the line between possibility and plausibility of the right to relief. Because of that, her claim that the escrow payments were unreasonable, failed. Also, the fact that the arbitration cancellation provisions were different from the rescission provisions did not affect the clarity of the separate notice of the right to cancel, and accordingly, the court rejected the borrower’s argument that the arbitration cancellation provision undermined a notice of the right to cancel that was perfectly consistent with the TILA’s disclosure requirements. Additionally, without an enforceable contract right, the borrower lacked standing to attack the validity of the assignment of the note.

Fairfax County Redevelopment & Hous. Auth. v. Riekse, 281 Va. 441, 707 S.E.2d 826 (2011)

The authority granted and conveyed a parcel of real property to parties, subject to certain conditions. Among those conditions, the authority reserved a right of first refusal (ROFR) to repurchase the parcel. The deed further provided that the ROFR was a covenant running with the land. The purchasers bought the parcel at a foreclosure auction. They then conveyed the parcel to the buyer. The buyer executed a deed of trust to secure an indebtedness. On appeal, the court found that the purchasers were not trustees under a deed of trust. Rather, they were owners of a fee simple estate, though the fee was defeasible rather than absolute, and they had all necessary power to convey the whole estate of which they were themselves seised at the time of their conveyance. Consequently, the trial court did not err when it refused to declare the buyer’s deed void ab initio. In addition, the authority sought specific performance by the purchasers, who no longer held title to the parcel. Accordingly, the circuit court’s determination that it could not order the purchasers to perform because it was impossible for them to offer the parcel to the authority was correct.

Holland v. Chase Home Fin., LLC, 3:11-cv-0223, (E.D. Va. 2011).

Defendants, foreclosing mortgage lender and related parties, moved to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), the complaint of plaintiff consumer, asserting claims for negligence, fraud, intentional infliction of emotional distress, and abusive, deceptive, and unfair debt collection practices in violation of state law and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. She moved to amend her complaint and to remand the case pursuant to 28 U.S.C.S. § 1447(c). None of the defendants was shown to be a debt collector, and the consumer failed to state a claim.

Caballero v. Am. Mortg. Network, 1:11-cv-0622, (E.D. Va. 2011)