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Tam Pham v. Deutsche Bank Nat'l Trust Company, 14-1246 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 14-1246 Visitors: 17
Filed: Sep. 25, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1246 TAM ANH PHAM; SUN YOUNG PHAM, Plaintiffs – Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee; AURORA LOAN SERVICES LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED; ALG TRUSTEE LLC; DRAPER & GOLDBERG, P.L.L.C. Defendants – Appellees and AMY SANBORN OWEN, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:13-
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                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-1246


TAM ANH PHAM; SUN YOUNG PHAM,

                Plaintiffs – Appellants,

          v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee; AURORA LOAN
SERVICES LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INCORPORATED; ALG TRUSTEE LLC; DRAPER & GOLDBERG, P.L.L.C.

                Defendants – Appellees

          and

AMY SANBORN OWEN,

                Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:13-cv-01053-LO-IDD)


Submitted:   September 23, 2014          Decided:   September 25, 2014


Before WILKINSON, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tam Anh Pham; Sun Young Pham, Appellants Pro Se.      John Daniel
Victor   Ferman,   Amy   Sanborn   Owen,   Kristin   Anne   Zech,
BRIGLIAHUNDLEY,  PC,   Fairfax,  Virginia;   Dean  L.   Robinson,
ATLANTIC LAW GROUP, LLC, Leesburg, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Tam Anh Pham and Sun Young Pham appeal the district

court’s     order    dismissing         their     amended    civil    complaint

challenging the foreclosure sale of their real property.                       We

have     reviewed    the    record      and     find   no   reversible    error.

Accordingly, we affirm.

            We review de novo a district court’s order dismissing

a complaint for failure to state a claim, assuming that all

well-pleaded, nonconclusory factual allegations in the complaint

are true.       Aziz v. Alcolac, Inc., 
658 F.3d 388
, 391 (4th Cir.

2011).     In considering a Fed. R. Civ. P. 12(b)(6) motion, this

court    generally    follows     the    “Four    Corners   Rule,”   whereby    a

“court[] may consider the complaint itself and any documents

that are attached to it.”            CACI Int’l, Inc. v. St. Paul Fire &

Marine Ins. Co., 
566 F.3d 150
, 154 (4th Cir. 2009).

            First, the dismissal was proper based on the Phams’

failure to comply with the district court’s order.                   A district

court may dismiss an action based on a plaintiff’s failure to

comply with any order.          Fed. R. Civ. P. 41(b).        Where a litigant

has ignored an express warning that noncompliance with a court

order    will   result     in   dismissal,       the   district   court   should

dismiss the case.          See Ballard v. Carlson, 
882 F.2d 93
, 95-96

(4th Cir. 1989) (“In view of the warning, the district court had

little alternative to dismissal.”).              Here, the Phams filed their

                                         3
amended    complaint       beyond   the   time    limit   set    by   the      district

court, and offered no good cause for their failure to timely

file the complaint.

            Next,     the     Phams’      assertions      that     the     Defendants

violated 18 U.S.C. § 1021 (2012) fail because there is no civil

or private remedy for an alleged violation of this statute.                        See

Fed. Sav. & Loan Ins. Corp. v. Reeves, 
816 F.2d 130
, 137-38 (4th

Cir. 1987) (finding no basis for implying civil cause of action

from criminal fraud and misrepresentation statutes).

            Finally, the amended complaint fails to state a claim,

even affording the Phams’ allegations liberal construction.                        See

Erickson v. Pardus, 
551 U.S. 89
, 94 (2007) (per curiam).                            The

Phams’    claim     that    Defendants     were    required      to      produce   the

original loan documents is unavailable under Virginia law, which

permits a trustee to foreclose on a loan in default without

first seeking a court order.              See Horvath v. Bank of N.Y., 
641 F.3d 617
, 623 & n.3 (4th Cir. 2011); see also Va. Code Ann.

§ 55-59     (2007).          Moreover,     and     contrary      to      the     Phams’

assertions, the Deed of Trust signed by them and attached to

their     complaint    granted      Defendants      the    power      to    take   the

disputed actions in the underlying foreclosure sale.

            Accordingly, we affirm the district court’s order.                      We

deny the Phams’ pending motions for sanctions.                   We dispense with

oral    argument     because    the    facts     and   legal     contentions       are

                                           4
adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.



                                                                 AFFIRMED




                                     5

Source:  CourtListener

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