Ramos v. Wells Fargo Bank, NA (ORDER)
770 S.E.2d 491
Va.2015Background
- Appellants Edwin M. Ramos and Evelyn S. Gill challenged a foreclosure sale of their residence in Fairfax County.
- The circuit court sustained a demurrer to the second amended complaint, dismissing it with prejudice.
- Second amended complaint alleged breach of contract based on HUD regulation 24 C.F.R. §203.604 incorporated into the deed of trust.
- Appellants contended Wells Fargo failed to conduct a required face-to-face meeting after default, making foreclosure unlawful.
- Potomac Relocation Services purchased the property at foreclosure; ALG Trustee, LLC as substitute trustee could refund Potomac’s deposit, but no closing had occurred.
- Court held that the complaint failed to allege injuries or damages and lacked an ad damnum, and rescission was unavailable because the sale had been consummated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breach requires injury and damages pleaded. | Ramos alleged injury from Wells Fargo’s breach. | Wells Fargo argued no injury/damages pled and no ad damnum. | Breach requires injury/damages; not satisfied. |
| Whether HUD regulation creates a condition precedent to foreclosure. | Regulation requires face-to-face meeting before foreclosure. | Not necessary or not pled as controlling. | Court assumed causation but found no viable damages/remedy. |
| Whether ad damnum clause is required in a breach-of-contract claim seeking damages. | Damages were claimed but not quantified. | Rule requires ad damnum clause. | Ad damnum clause missing; claim fails for lack of damages. |
| Whether rescission is available where foreclosure sale has been consummated but no closing occurred. | Foreclosure could be unwound since closing had not occurred. | Rescission unavailable after sale is consummated. | Rescission not available; sale had been consummated. |
Key Cases Cited
- Filak v. George, 267 Va. 612 ( Va. 2004) (elements of breach: duty, breach, injury)
- Squire v. Virginia Housing Development Authority, 287 Va. 507 ( Va. 2014) (HUD §203.604 as a foreclosure condition precedent)
- Mathews v. PHH Mortgage Corp., 283 Va. 723 ( Va. 2012) (HUD regulation incorporated into deeds of trust)
- Assurance Data, Inc. v. Malyevac, 286 Va. 137 ( Va. 2013) (deference to pleadings; demurrer standard; legal sufficiency)
- Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553 ( Va. 2011) (de novo review of demurrers; legal sufficiency)
- Sunrise Continuing Care, LLC v. Wright, 277 Va. 148 ( Va. 2009) (injury/damages required for contract actions)
- Feldman v. Rucker, 201 Va. 11 ( Va. 1959) (foreclosure sale consummation controls remedies)