Summary
dismissing breach of contract action when mortgagor did not "allege that the failure to engage in a face-to-face meeting caused her any damages"
Summary of this case from Wells Fargo Bank, N.A. v. PetersOpinion
CIVIL NO. 2:20cv151
2020-06-16
Janie A. CREECH, Plaintiff, v. EVERBANK, et al., Defendants.
Henry W. McLaughlin, III, The Law Office of Henry McLaughlin, P. C., Richmond, VA, for Plaintiff. Allison Anastasia Melton, Andrew Brian Pittman, Troutman Sanders LLP, Virginia Beach, VA, for Defendant Everbank. Allison Anastasia Melton, Troutman Sanders LLP, Virginia Beach, VA, for Defendant Ocwen Loan Servicing, LLC.
Henry W. McLaughlin, III, The Law Office of Henry McLaughlin, P. C., Richmond, VA, for Plaintiff.
Allison Anastasia Melton, Andrew Brian Pittman, Troutman Sanders LLP, Virginia Beach, VA, for Defendant Everbank.
Allison Anastasia Melton, Troutman Sanders LLP, Virginia Beach, VA, for Defendant Ocwen Loan Servicing, LLC.
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Defendants' Motion to Dismiss, ECF No. 5, and Plaintiff Janie A. Creech's ("Creech") Motion to Remand, ECF No. 7.
I. Procedural History
On January 13, 2020, Creech filed a Complaint against Defendants Everbank, Ocwen Loan Servicing, LLC, and Equity Trustees, LLC ("Equity Trustees"). ECF No. 1-1. A timely Notice of Removal was filed on March 19, 2020. ECF No. 1. The Defendants filed the Motion to Dismiss, ECF No. 5, and an accompanying Memorandum in Support, ECF No. 6, on March 26, 2020. Creech filed an Opposition on April 9, 2020. ECF No. 9. The Defendants filed a Reply on April 15, 2020. ECF No. 10.
The Notice of Removal was filed by TIAA, FSB, d/b/a TIAA Bank, formerly known as Everbank, and PHH Mortgage Corporation, the successor by merger to Ocwen Loan Servicing, LLC. Notice of Removal at 1, ECF No. 1. Because the parties refer to these entities as "Everbank" and "Ocwen," respectively, the court will also do so in this Memorandum Final Order and will refer to these entities collectively as the "Defendants."
Defendant Equity Trustees did not join in the Notice of Removal. Typically, all defendants are required to consent to removal. However, because the court concludes that Equity Trustees was fraudulently joined, see infra Part III, Equity Trustees' consent to removal was not required. Crockett ex rel. Carter v. Gen. Motors Corp., No. CIV.A. 3:08CV469, 2008 WL 5234702, at *3 (E.D. Va. Dec. 15, 2008) (Payne, J.).
Creech filed the Motion to Remand on April 9, 2020. ECF No. 7. The Defendants filed an Opposition on May 7, 2020. ECF No. 13. Creech filed a late Reply on May 14, 2020. ECF No. 15. Creech then filed a Motion for Leave to file a late reply, ECF No. 16, and supporting Memorandum, ECF No. 17, on May 15, 2020. The court granted the Motion for Leave on June 2, 2020. ECF No. 18.
The facts are drawn from the allegations in the Plaintiff's Complaint, which are assumed to be true for purposes of these Motions, the Exhibits to the Complaint, and some documents attached to the Defendants' Motion to Dismiss. The court may consider the documents attached to the Motion to Dismiss because courts "may consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity." Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). These documents are "integral" to the issues raised in the Complaint and Creech does not dispute their authenticity.
On February 20, 2009, Creech obtained a mortgage loan in the amount of $122,100, which was evidenced by a promissory note (the "Note"). Compl., Ex. A. The lender was AmericaHomeKey, Inc. As security for repayment of the loan, Creech executed a Deed of Trust conveying the property to a trustee, Hometown Title, LLC. Compl., Ex. B. The Note contains the following: (1) a specific endorsement from AmericaHomeKey, Inc. to GMAC Bank; (2) a specific endorsement from GMAC Bank to GMAC Mortgage, LLC; (3) a specific endorsement from GMAC Mortgage, LLC to Ocwen; and (4) an endorsement in blank from Ocwen. See id.
Plaintiff's husband, Floyd V. Creech, was also originally a party to the Note and Deed of Trust, but he died on December 12, 2013. Compl. ¶ 9.
On July 3, 2012, Creech entered into a loan modification. ECF No. 6-3 (first loan modification agreement). Creech entered into a second loan modification on August 5, 2013. ECF No. 6-4 (second loan modification agreement). On April 14, 2016, Creech entered into a third loan modification, the effective date of which was May 1, 2016. ECF No. 6-5 (third loan modification agreement). These loan modifications reduced Creech's required monthly payments.
The Complaint does not refer to this third modification agreement, but Creech does not dispute that it occurred.
On November 21, 2016, Creech was informed that the loan had been sold to a new owner, Everbank. Compl., Ex. C. The correspondence also stated that Ocwen would continue to act as the loan servicer. Id.
On January 3, 2017, Ocwen sent Creech a "Home Affordable Modification Trial Plan Approval Notice" ("Trial Plan"). Compl., Ex. D. To accept the plan, Creech was required to sign and return an acceptance, and pay the first monthly trial payment. Creech alleges that she signed the Trial Plan signature page, returned it to Ocwen, and then timely made three monthly payments.
On July 27, 2017, Ocwen sent Creech correspondence stating that Creech's account was in fact not eligible for a modification because the Federal Housing Administration ("FHA"), the loan's insurer, allowed only one modification every twenty-four (24) months. Compl., Ex. F. This correspondence also advised Creech that she had been conditionally approved for other mortgage assistance options.
Creech only attached one page from the seven-page letter to her Complaint. The Defendants attach what they assert is the entre version of the letter to their Motion to Dismiss. Compare Compl., Ex. F (one page of correspondence), with ECF No. 6-7 (full correspondence). The court notes that Creech's letter is dated July 27, 2017, while the Defendants' letter is dated July 26, 2017. Nevertheless, the Defendants represent that this is a "complete copy of this correspondence," ECF No. 6 at 6; the letters appear to otherwise be identical; and Creech does not dispute the authenticity of the Defendants' document. Accordingly, the court will credit the Defendants' representation that the substance of their letter accurately reflects the correspondence sent to Creech.
Ocwen then returned the payments that Creech made under the Trial Plan. In a subsequent phone call, an Ocwen representative told Creech that Ocwen had "made a mistake in entering into the loan modification." Compl. ¶ 32.
On December 8, 2017, Ocwen executed an instrument appointing Equity Trustees as the substitute trustee under the Deed of Trust. Compl., Ex. G. Equity Trustees sent a notice to Creech that a foreclosure of the home was scheduled for January 30, 2018.
Creech then filed a lawsuit against Everbank, Ocwen, and Equity Trustees in the Circuit Court for the City of Portsmouth. ECF No. 6-8. As a result of that lawsuit, the foreclosure sale was cancelled. Creech nonsuited that Complaint on May 30, 2019. See ECF No. 6-10. Another foreclosure sale was then scheduled for January 14, 2020. One day before the scheduled sale, Creech filed the instant Complaint. The foreclosure did not occur.
The instant Complaint contains five (5) counts. Count One alleges that the Defendants breached the terms of the Trial Plan. Count Two alleges that the Defendants breached an FHA regulation requiring a face-to-face meeting before foreclosure. Count Three alleges that Equity Trustees was not lawfully appointed as a substitute trustee. Count Four alleges tortious interference with contract through the appointment of Equity Trustees as a substitute trustee. Count Five requests a declaratory judgment preventing Equity Trustees from foreclosing on the property.
III. Motion to Remand
The court must consider Creech's Motion to Remand before the Defendants' Motion to Dismiss. See Burrell v. Bayer Corp., 918 F.3d 372, 379-80 (4th Cir. 2019) ("If [a] case was not properly removed, because it was not within the original jurisdiction of the United States district courts, then the district court [is] without jurisdiction to rule on the merits and instead [is] required to remand the action to state court." (internal quotations omitted)).
The Defendants removed the case on the basis of diversity jurisdiction. Notice of Removal at 3, ECF No. 1. See 28 U.S.C. § 1441(a) ("[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."). Pursuant to 28 U.S.C. § 1332(a), district courts have "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States." Id. Thus, the Defendants must establish that there is complete diversity among the parties and that the amount in controversy exceeds $75,000. In removed cases it is the defendant's burden to prove that the case satisfies all of the jurisdictional requirements for removal. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
The court concludes that diversity jurisdiction exists. First, complete diversity exists among the parties. Creech is a citizen of Virginia, Ocwen is a citizen of New Jersey, Everbank is a citizen of Florida, and Equity Trustees is a citizen of Virginia. Notice of Removal at 6-7. Normally, a case with an in-state defendant is not removable, see 28 U.S.C. § 1441(b)(2), and a defendant with the same citizenship as the plaintiff destroys complete diversity. However, the court concludes that Equity Trustees' citizenship should be disregarded because it has been fraudulently joined as a party.
Under the fraudulent joinder doctrine, courts "can disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants." Weidman v. Exxon Mobil Corp., 776 F.3d 214, 218 (4th Cir. 2015) (internal quotations omitted). A party is fraudulently joined when "the plaintiff committed outright fraud in pleading jurisdictional facts, or ... ‘there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.’ " Id. (quoting Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999) ).
Here, there is no possibility that Creech could have established a cause of action against Equity Trustees. "[W]here complaints lack significant allegations against a substitute trustee and a foreclosure has not yet occurred, courts have found that the substitute trustee is a nominal party or has been fraudulently joined." O'Carroll v. JPMorgan Chase Bank, N.A., No. 3:19-CV-115-HEH, 2019 WL 2437462, at *3 (E.D. Va. June 11, 2019) (Hudson, J.); see Dail v. Bank of Am., N.A., No. 2:18-CV-640, 2019 WL 921452, at *4 (E.D. Va. Feb. 21, 2019) (Jackson, J.) ("[W]here the trustee is not mentioned in the allegations, and there are no allegations of a foreclosure sale, the trustee is fraudulently joined.").
That is the case here. The Complaint seeks to prevent Equity Trustees from completing the foreclosure, but the foreclosure had not yet occurred. Furthermore, the Complaint lacks other allegations against Equity Trustees, such as a claim for breach of fiduciary duty. Accordingly, Equity Trustees was fraudulently joined and will be disregarded for purposes of diversity jurisdiction. See id. (holding substitute trustee was fraudulently joined); O'Carroll, 2019 WL 2437462 at *3 (same). Thus, diversity jurisdiction exists among the remaining Defendants and Creech. In addition, the bar for removal of a case with an in-state defendant, see 28 U.S.C. § 1441(b)(2), does not apply because Equity Trustees has been fraudulently joined. See, e.g., Carter v. Hitachi Koki U.S.A., Ltd., 445 F. Supp. 2d 597, 601–02 (E.D. Va. 2006) (Kelley, J.) (denying motion to remand because in-state defendant was fraudulently joined).
Although normally courts dismiss fraudulently joined parties, see, e.g., O'Carroll v. JPMorgan Chase Bank, N.A., No. 3:19-CV-115-HEH, 2019 WL 2437462, at *4 (E.D. Va. June 11, 2019) (Hudson, J.), that is unnecessary here because Equity Trustees has already been dismissed from the case. See ECF No. 14 (Creech's notice of voluntary dismissal against Equity Trustees).
The Defendants also argue that diversity exists because Equity Trustees is a nominal party. See ECF No. 13 at 14. Because the court concludes that Equity Trustees was fraudulently joined, it need not address this argument.
Creech does not contest that Equity Trustees was fraudulently joined. However, she argues, "what rendered Equity Trustees a nominal party (the cancellation of the January 14, 2020 foreclosure) left an amount in controversy of less than $75,000, because the only amount now in controversy is $25,000." ECF No. 8 at 2. Therefore, she asserts, the amount in controversy is less than $75,000 and diversity jurisdiction does not exist.
This argument misses the mark in multiple ways. First, it is incorrect that Equity Trustees is fraudulently joined because the foreclosure was cancelled. Rather, as discussed above, it is fraudulently joined because when the Complaint was filed the foreclosure had not yet occurred and Creech did not assert other claims against it.
Second, later changes to the amount in controversy do not divest the court of jurisdiction if the Complaint satisfies the amount in controversy when it was filed. "The general federal rule has long been to decide what the amount in controversy is from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed ‘in good faith.’ " Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961) (emphasis added) (quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ). As the Fourth Circuit has held, "a court determines the existence of diversity jurisdiction at the time the action is filed, regardless of later changes in originally crucial facts such as the parties' citizenship or the amount in controversy." Porsche Cars N. Am., Inc. v. Porsche.net, 302 F.3d 248, 255–56 (4th Cir. 2002) (internal quotations omitted).
Accordingly, the relevant question is whether the originally filed Complaint, which was operative when the Defendants filed the Notice of Removal, satisfied the amount in controversy requirement. The court concludes it did. In the Complaint, Creech asserted a claim for $25,000 in compensatory damages. See Compl. at 13. The Complaint also seeks a declaratory judgment preventing foreclosure of the home. "If ... the complaint does not specify damages, a defendant need only prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional minimum." Kersey v. PHH Mortg. Corp., No. 3:09-CV-726, 2010 WL 3222262, at *4 (E.D. Va. Aug. 13, 2010) (Williams, J.) (internal quotations omitted).
Because the Complaint asserts a damages claim for $25,000, the question becomes whether the value of the declaratory relief sought in the Complaint exceeds $50,000. "In suits involving claims to real property, the value of the property determines the amount in controversy." Harrell v. Caliber Home Loans, Inc., 995 F. Supp. 2d 548, 550 (E.D. Va. 2014) (Smith, C.J.). Here, the Defendants offered uncontested evidence that the value of the home is $105,970. See ECF No. 1-5 (City of Portsmouth home assessment). Thus, the value of Creech's claim for injunctive relief is $105,970. See Sherman v. Litton Loan Servicing, L.P., 796 F. Supp. 2d 753, 766 (E.D. Va. 2011) (Davis, J.) (holding amount in controversy requirement was met because of "the manifest fact that the value of the Property exceeds $75,000"). This amount alone meets the amount in controversy requirement. Moreover, because claims may be aggregated to meet the amount in controversy requirement, see Griffin v. Red Run Lodge, Inc., 610 F.2d 1198, 1204 (4th Cir. 1979), the claims for compensatory damages and injunctive relief in the Complaint well exceed $75,000.
Creech's counter-argument—that the cancellation of the foreclosure decreased the amount in controversy below $75,000—is unpersuasive for the reasons set out above. Finally, Creech's citation to Kersey v. PHH Mortg. Corp., No. 3:09-CV-726, 2010 WL 3222262, at *1 (E.D. Va. Aug. 13, 2010) (Williams, J.), is unavailing. See ECF No. 8 at 3. In Kersey, "the Plaintiff's lawsuit simply ask[ed] the Court to determine whether the Defendant owed the Plaintiff the duty to have, or attempt to have, a face-to-face meeting with her prior to commencing foreclosure." 2010 WL 3222262 at *5. The court concluded that the value of that face-to-face meeting did not exceed $75,000. Id. In contrast, Creech asserts breach of contract claims and a tort claim, and she seeks a declaration that Equity Trustees be prevented from foreclosing on the property.
In sum, complete diversity exists among the parties, and the amount in controversy exceeds $75,000. Thus, the court has subject matter jurisdiction over this action. See 28 U.S.C. § 1332(a)(1).
IV. Motion to Dismiss
The Defendants move to dismiss the Complaint for failure to state a claim. The Complaint must be dismissed if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility means that a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). It is, therefore, not enough for a plaintiff to allege facts demonstrating a "sheer possibility" or "mere[ ] consist[ency]" with unlawful conduct. Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).
The court will address the sufficiency of each count in the Complaint in turn.
a. Count One
Count One of the Complaint alleges that Defendant Ocwen breached the terms of the Trial Plan. Creech alleges that she complied with the terms of the Trial Plan, including by making three monthly payments, and thus "was entitled to a permanent loan modification." Compl. ¶¶ 24-26. Because Ocwen ultimately returned the payments to her and did not offer her a permanent modification, she contends it breached the Trial Plan. Id. ¶¶ 28-30.
This count fails to state a claim. The terms of the Trial Plan made clear that further review was required before Creech might be eligible for a permanent loan modification. See Compl., Ex. D (Trial Plan). For example, the Trial Plan stated, "[i]f you successfully complete the Trial Period Plan, you will be eligible for review for a permanent modification" and "[i]n order to be considered for a modification you must first complete a trial period." Id. (emphasis added). As the Trial Plan makes clear, the Defendants never agreed that Creech would be entitled to a permanent loan modification if she met the requirements. Accordingly, there was no "mutual assent of the contracting parties to terms reasonably certain under the circumstances." W.J. Schafer Assocs., Inc. v. Cordant, Inc., 254 Va. 514, 519, 493 S.E.2d 512 (1997) (citation omitted).
At best, the Trial Plan was an agreement to negotiate in the future about a loan modification. However, "[i]t is well settled under Virginia law that agreements to negotiate at some point in the future are unenforceable." Beazer Homes Corp. v. VMIF/Anden Southbridge Venture, 235 F. Supp. 2d 485, 490 (E.D. Va. 2002) (Ellis, J.).
b. Count Two
Count Two alleges that the Defendants committed breach of contract by failing to comply with the FHA regulation contained in 24 C.F.R. § 203.604. As relevant here, this regulation states that "the mortgagee must have a face-to-face meeting with the mortgagor, or make a reasonable attempt to arrange such a meeting" before foreclosure. Id. The Complaint alleges that the Note and Deed of Trust incorporate this regulation, and therefore that the Defendants were required to have a face-to-face meeting with Creech before foreclosure.
The Defendants admit that a face-to-face meeting never occurred. ECF No. 6 at 13. Nevertheless, they argue that they substantially complied with the underlying requirements of a face-to-face meeting. See id. at 13-16. The court need not consider whether the Defendants substantially complied with this regulation, however, because Creech does not plead that the failure to have a face-to-face meeting caused her any damages.
The elements of breach of contract under Virginia law 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 the breach of obligation." Navar, Inc. v. Fed. Bus. Council, 291 Va. 338, 344, 784 S.E.2d 296 (2016) (internal quotations omitted). Creech does not attempt to allege that the failure to engage in a face-to-face meeting caused her any damages. See Compl. ¶¶ 42-54. Nor could she. As her Complaint makes clear, the Defendants engaged in discussions with her regarding options for avoiding foreclosure. For example, they sent her a Trial Plan and she was considered for a modification. Compl., Ex. D. The notice informing her that she was not in fact eligible for a modification at that time informed her of other possible alternatives to foreclosure. Compl., Ex. F; ECF No. 6-7.
Given these facts, Creech cannot allege that the failure to engage in a face-to-face meeting caused her any damages. See Kersey v. PHH Mortg. Corp., No. 3:09CV726, 2010 WL 3222262, at *5 (E.D. Va. Aug. 13, 2010) (Williams, J.) ("[N]othing before the Court suggests that a face-to-face meeting with the Defendant prior to its having commenced foreclosure would have ‘saved’ the Plaintiff's home from foreclosure."); accord Aazami v. Wells Fargo Bank, N.A., No. 3:17-CV-01564-BR, 2019 WL 281286, at *11 (D. Or. Jan. 22, 2019) (concluding that "Plaintiff has failed to establish that Defendants' alleged failure to comply with 24 C.F.R. § 203.604 caused Plaintiff to suffer damages" and collecting cases).
c. Count Three
Count Three alleges that Equity Trustees was appointed as a substitute trustee in violation of law. The Complaint alleges that "any appointment of a substitute trustee on a deed of trust recite [sic ] that such appointment be by or on behalf of a named holder of the note." Compl. ¶ 50.
This count fails to state a claim for several reasons. First, because Creech is not a party to the instrument appointing Equity Trustees as a substitute trustee, Compl., Ex. G, she lacks standing to challenge the appointment of the substitute trustee. See, e.g., Vaughan v. Wells Fargo Bank, N.A., No. 6:15-CV-00038, 2016 WL 2901752, at *3 (W.D. Va. May 18, 2016) (holding that "[p]laintiffs lack requisite standing to challenge the validity of substitution of trustee as they were not a party to the challenged documents"); Pena v. HSBC Bank, No. 1:14-cv-1018, 2014 WL 5684798, at *5 (E.D. Va. Nov. 4, 2014) (Cacheris, J.) ("Virginia courts routinely dismiss such challenges on the basis of lack of standing because the complainant was not a party to or intended beneficiary of the challenged document."). Even if she had standing, Count Three would still fail to state a claim. Creech argues that Everbank, as the owner of the Note, was required to appoint a substitute trustee. Compl. ¶¶ 50-53. For support she cites to Va. Code Ann. § 55-59(9), which states that "[t]he party secured by the deed of trust, or the holders of greater than 50 percent of the monetary obligations secured thereby, shall have the right and power to appoint one or more substitute trustees for any reason." Va. Code Ann. § 55.1-320 (formerly cited as Va. Code Ann. § 55-59(9) ).
Courts, however, have repeatedly rejected this argument. In Sheppard v. BAC Home Loans Servicing, LP, for example, the court noted that "courts have not read this [statute] to mean that only the secured party or noteholder itself may appoint a substitute trustee, and have instead upheld the right of loan servicing entities, acting as agents, to do so." No. 3:11-CV-00062, 2012 WL 204288, at *8 n.9 (W.D. Va. Jan. 24, 2012). Because Ocwen was acting as Everbank's agent, it was entitled to appoint the substitute trustee. See, e.g., id. (holding that loan servicer's appointment of substitute trustee was lawful); Larota-Florez v. Goldman Sachs Mortg. Co., 719 F. Supp. 2d 636, 641 (E.D. Va. 2010) (Hilton, J.) (same), aff'd, 441 F. App'x 202 (4th Cir. 2011).
In her Opposition, Creech argues that "if the lender acts through the servicer for appointment of a substitute trustee, the appointment instrument must say so." ECF No. 9 at 4. Creech cites no authority for this proposition. Moreover, Creech was aware that Ocwen was acting as the loan servicer for Everbank. For example, the correspondence sent to Creech informing her that her loan had been transferred to Everbank stated "[p]lease continue to make your mortgage loan payments to your current servicer, Ocwen." Compl., Ex. C. (emphasis added).
d. Count Four
Count Four asserts a claim for tortious interference with contract. According to the Complaint, Ocwen tortiously interfered with the Note by "purporting to remove Hometown and by instructing a stranger to the note to foreclose on the home." Compl. ¶ 58.
The elements of tortious interference with contract under Virginia law are "(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted." Masco Contractor Servs. E., Inc. v. Beals, 279 F. Supp. 2d 699, 709 (E.D. Va. 2003) (Smith, J.) (citing Chaves v. Johnson, 230 Va. 112, 120, 335 S.E.2d 97, 102 (1985) ).
This claim fails for multiple reasons. First, Creech does not assert that Ocwen's appointment of Equity Trustees caused Everbank to fail to comply with any of its contractual obligations. Because Creech does not allege that Ocwen "induc[ed] or caus[ed] a breach," id., Creech has failed to plead a requisite element. Furthermore, an agent cannot tortiously interfere with the contract of its principal. See Livia Properties, LLC v. Jones Lang LaSalle Americas, Inc., No. CIV.A. 5:14-00053, 2015 WL 4711585, at *7 (W.D. Va. Aug. 7, 2015) (collecting cases), aff'd 646 F. App'x 322 (4th Cir. 2016). Therefore, Creech cannot successfully allege that Ocwen, Everbank's agent, induced Everbank to breach its contract.
e. Count Five
Count Five seeks a declaratory judgment compelling Equity Trustees to cancel the previously scheduled foreclosure. Compl. ¶¶ 61-65. Count Five does not make any new allegations. Rather, it asserts that for the reasons set out in Counts One through Four, the court should declare that Equity Trustees cannot foreclose on the home. For the reasons set out above, see supra Part IV(a)-(d), these claims lack merit. Accordingly, Creech is not entitled to any declaratory relief.
V. Conclusion
For the foregoing reasons, Creech's Motion to Remand is DENIED and the Defendants' Motion to Dismiss is GRANTED . Accordingly, Creech's Complaint is DISMISSED WITH PREJUDICE . The Clerk is DIRECTED to forward a copy of this Memorandum Final Order to counsel of record for the parties in this case.