Filed: Nov. 29, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1127 HIPOLITO J. ESTRELLA; SALVACION H. ESTRELLA, Plaintiffs - Appellants, v. WELLS FARGO BANK, N.A.; THE FEDERAL HOME LOAN MORTGAGE CORPORATION; SAMUEL I. WHITE, P.C., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:11-cv-00414-MSD-TEM) Submitted: November 20, 2012 Decided: November 29, 2012 Before WILKINSON, KING, and
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1127 HIPOLITO J. ESTRELLA; SALVACION H. ESTRELLA, Plaintiffs - Appellants, v. WELLS FARGO BANK, N.A.; THE FEDERAL HOME LOAN MORTGAGE CORPORATION; SAMUEL I. WHITE, P.C., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:11-cv-00414-MSD-TEM) Submitted: November 20, 2012 Decided: November 29, 2012 Before WILKINSON, KING, and T..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1127
HIPOLITO J. ESTRELLA; SALVACION H. ESTRELLA,
Plaintiffs - Appellants,
v.
WELLS FARGO BANK, N.A.; THE FEDERAL HOME LOAN MORTGAGE
CORPORATION; SAMUEL I. WHITE, P.C.,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:11-cv-00414-MSD-TEM)
Submitted: November 20, 2012 Decided: November 29, 2012
Before WILKINSON, KING, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry W. McLaughlin, III, LAW OFFICE OF HENRY W. MCLAUGHLIN,
P.C., Richmond, Virginia, for Appellants. Hunter W. Sims, Jr.,
David J. Sullivan, KAUFMAN & CANOLES, P.C., Norfolk, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hipolito and Salvacion Estrella filed a complaint
against Wells Fargo Bank, N.A., the Federal Home Loan Mortgage
Corporation (“Freddie Mac”), and trustee Samuel I. White, P.C.
(collectively, “Appellees”), seeking to quiet title,
compensatory damages, and declaratory relief, based on their
claim that the foreclosure of their home was invalid due to an
inadequate pre-acceleration notice. After the action was
removed to federal court under 28 U.S.C.A. § 1442(a) (West Supp.
2012), the district court dismissed the action pursuant to Fed.
R. Civ. P. 12(b)(6). The Estrellas now appeal the district
court’s judgment dismissing their complaint for failure to state
a claim. On appeal, the Estrellas contend that the district
court abused its discretion in denying leave to amend the
complaint and erred in dismissing the complaint based on its
finding that they received proper pre-acceleration notice.
Finding no error, we affirm.
We review for abuse of discretion a district court’s
denial of leave to amend a complaint. See Cozzarelli v. Inspire
Pharms. Inc., 549 F.3d 618, 630 (4th Cir. 2008). When a party
moves for leave to amend his pleading, the court must grant
leave to amend “when justice so requires.” See Fed. R. Civ. P.
15(a)(2). However, where, as here, the plaintiff fails to
formally move to amend and fails to provide the district court
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with any proposed amended complaint or other indication of the
amendments he wishes to make, “the district court [does] not
abuse its discretion in failing to give the plaintiff[] a blank
authorization to ‘do over’ [his] complaint.” Francis v.
Giacomelli, 588 F.3d 186, 197 (4th Cir. 2009); see Cozzarelli,
549 F.3d at 630-31 (finding no abuse of discretion in “declining
to grant a motion [to amend] that was never properly made” but
raised only in opposition to a motion to dismiss and in
objections to the magistrate judge’s report). * Thus, the
district court’s denial of leave to amend was not an abuse of
discretion.
Turning to the Estrellas’ remaining argument, we
review de novo a district court’s dismissal of a complaint under
Rule 12(b)(6). WEC Carolina Energy Solutions LLC v. Miller, 687
F.3d 199, 202 (4th Cir. 2012). While we must accept all well-
pled allegations as true and draw reasonable inferences in favor
of the non-moving party, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement” are not entitled to such deference. See Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 255
*
While the district court relied substantially on
alternative grounds in denying leave to amend, we may affirm for
any reason appearing on the record. See Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
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(4th Cir. 2009) (internal quotation marks omitted). Under
Virginia law, whether a pre-acceleration notice is adequate to
support subsequent foreclosure is “a matter of contract between
the parties,” to be determined by reference to the deed of
trust. See Bayview Loan Servicing, LLC v. Simmons, 654 S.E.2d
898, 901 (Va. 2008).
Here, the pre-acceleration letter clearly indicated
that the Estrellas defaulted by falling delinquent in their
payments, and that such default would be cured only by bringing
the payments current by August 18, 2009, thirty days after the
notice was deemed to have been given. The letter also clearly
indicated the amounts required to bring the loan current before
and after an intervening payment came due, and it provided the
Estrellas with the option to cure the default by paying either
amount during the applicable time period. Because this method
of curing the default complied fully with the notice
requirements set out in the deed of trust, we conclude that the
Estrellas’ underlying claim of improper notice is meritless.
Thus, the district court did not err in dismissing the
Estrellas’ claims on this basis.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
4
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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