UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2034
ANTHONY L. JONES; CHERYSE D. GLENN JONES,
Plaintiffs - Appellants,
v.
FULTON BANK, N.A.,
Defendant – Appellee,
and
SAMUEL I. WHITE, P.C.,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:13-cv-00126-JRS)
Submitted: March 28, 2014 Decided: April 9, 2014
Before SHEDD, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry W. McLaughlin, III, LAW OFFICE OF HENRY MCLAUGHLIN, P.C.,
Richmond, Virginia, for Appellants. Brendan D. O’Toole,
WILLIAMS MULLEN, Richmond, Virginia; William L. Stauffer, Jr.,
WILLIAMS MULLEN, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Anthony L. Jones and Cheryse D. Glenn-Jones (“the
Joneses”) appeal the district court’s order granting Fulton
Bank, National Association’s (“Defendant”) motion to dismiss
their action for damages and to quiet title based on Defendant’s
alleged breaches of the deed of trust securing their mortgage
loan. Finding no error, we affirm.
We review de novo the district court’s dismissal for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Sec’y of State for Defence v. Trimble Navigation,
Ltd., 484 F.3d 700, 705 (4th Cir. 2007). “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.
“A deed of trust is construed as a contract under
Virginia law.” Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 200
(Va. 2012). The elements of breach of contract in Virginia are:
“(1) a legally enforceable obligation of a defendant to a
plaintiff; (2) the defendant’s violation or breach of that
obligation; and (3) injury or damage to the plaintiff caused by
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the breach of obligation.” Filak v. George, 594 S.E.2d 610, 614
(Va. 2004).
The Joneses first argue that the district court erred
in dismissing their breach of contract claim based on
Defendant’s failure to send a proper thirty-day pre-acceleration
notice. While a deficient pre-acceleration notice constitutes a
breach of contract, see Bayview Loan Servicing, LLC v. Simmons,
654 S.E.2d 898, 901 (Va. 2008), a plaintiff must still plead
damages due to that breach. Filak, 594 S.E.2d at 614. The
district court’s dismissal of this claim hinged on its finding
that the Joneses did not sufficiently plead damages due to
Defendant’s alleged breach. On appeal, the Joneses focus their
argument on whether Defendant’s allegedly deficient pre-
acceleration notice constitutes a breach but they do not dispute
the district court’s finding on the damages element. Thus, we
affirm the district court’s dismissal of this breach of contract
claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (concluding that issues not raised in opening
brief are deemed abandoned).
The Joneses next argue that the district court erred
in dismissing their second breach of contract claim, in which
they claimed that Defendant breached the deed of trust by
improperly appointing Samuel I. White, P.C. (“White”) as
substitute trustee and instructing him to commence foreclosure
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proceedings. The district court found that the Joneses lacked
standing to dispute Defendant’s appointment of White as
substitute trustee. On appeal, the Joneses simply contend that
they have standing to challenge the appointment because the
foreclosure sale did not comply with the deed of trust. They do
not, however, argue that the district court erred in its
analysis of the causation and redressability elements of the
test for standing. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992) (stating elements of standing). We therefore
affirm the district court’s dismissal of this breach of contract
claim. See Edwards, 178 F.3d at 241 n.6.
Next, the Joneses dispute the district court’s
dismissal of their third claim, breach of the implied covenant
of good faith and fair dealing under the Uniform Commercial Code
(“UCC”), as adopted by Virginia, which they based on Defendant’s
alleged breaches of contract discussed supra. The Joneses’
claim fails as a matter of law for two reasons. First, the UCC
does not apply to transfers of real property. Greenwood
Assocs., Inc. v. Crestar Bank, 448 S.E.2d 399, 402 (Va. 1994).
Second, even if the deed of trust falls under the UCC as the
Joneses argue, their claim fails because it was pled as a
separate tort claim. See Charles E. Brauer Co. v. NationsBank
of Va. N.A., 466 S.E.2d 382, 385 (Va. 1996) (holding that “the
failure to act in good faith . . . does not amount to an
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independent tort. The breach of the implied duty under the UCC
gives rise only to a cause of action for breach of contract.”).
Finally, the Joneses contend that the district court
erred in finding that they were required to pay off the deed of
trust before bringing an action to quiet title. To assert a
claim for quiet title, the plaintiff must allege that he has
satisfied his legal obligations to the party in interest and,
thus, maintains a superior interest in the property. Tapia v.
U.S. Bank, N.A., 718 F. Supp.2d 689, 700 (E.D. Va. 2010), aff’d,
441 F. App’x 166 (4th Cir. 2010) (No. 10-1856). The Joneses
have not alleged that they have satisfied their obligations;
thus, their quiet title action must fail.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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