OPINION AND ORDER
This matter is currently before the Court on several motions: (1) defendant Glasser and Glasser P.L.C.’s (“Glasser”) motion to dismiss plaintiff James R. Sherman’s complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted; (2) defendant Litton Loan Servicing, L.P.’s (“Litton” and, collectively with Glasser, the “defendants”) motion to dismiss plaintiffs complaint pursuant to Rule 12(b)(6) or, in the alternative, for judgment on the pleadings pursuant to Rule 12(c); and (3) plaintiffs motion to remand this matter to state court pursuant to 28 U.S.C. § 1447(c). Plaintiff filed no response to Glasser’s motion. Litton’s motion was fully briefed, and only Litton filed an opposition to plaintiffs motion, to which plaintiff did not reply. Although Litton has filed a request for a hearing on these motions, after examination of the briefs and the record, the Court has determined that a hearing on the instant motions is unnecessary, as the facts and legal arguments are adequately presented, and the decisional process would not be aided significantly by oral argument. Fed.R.Civ.P. 78(b); E.D. Va. Loe. Civ. R. 7(J). For the reasons stated herein, the Court GRANTS Glasser’s motion, GRANTS Litton’s motion, DENIES plaintiffs motion as moot, and DISMISSES this matter, with prejudice.
I. FACTUAL ALLEGATIONS 1
On November 30, 2006, plaintiff took out a first lien mortgage in the original principal amount of $530,000.00 (the “mortgage”) in connection with his purchase of a tract of land at 533 General Booth Boulevard in Virginia Beach, Virginia (the “Property”). Compl. ¶¶ 1-2. Litton was the servicer of the mortgage.
Id.
¶ 12. Plaintiff made timely payments on the mortgage until August 2009, when he “foresaw a decrease in his income, and requested a loan modification from [Litton] for the month of September, 2009.”
Id.
¶¶ 4-6. Plaintiff received from Litton a Loan Modification Workout Plan (the “Plan”), which he returned with supporting documentation and a check for his first month’s trial period payment.
Id.
¶¶ 7-8. After extensive correspondence and conversations with vari
II. PROCEDURAL HISTORY
This matter was initiated on October 27, 2010, when plaintiff filed a Bill of Complaint and Petition for Preliminary Injunction against defendants in the Circuit Court of the City of Virginia Beach, Virginia (the “state court”) to prevent the aforementioned foreclosure sale of the Property. Docket No. 1 at 1-2 & Compl. ¶ 39. On October 28, 2010 the state court granted a temporary injunction enjoining defendants from selling the Property for thirty days, contingent upon a $20,000 surety bond. Docket No. 15 Ex. A at 1.
Litton, with the consent of Glasser, removed this matter to this Court on November 18, 2010, alleging subject-matter jurisdiction on the basis of both a federal question — to wit, plaintiffs purported assertion of claims arising under the federal Home Affordable Modification Program (“HAMP”) — and diversity of citizenship. Docket No. 1 at 1 & ¶¶ 12-30. In this latter connection, Litton claimed in its notice of removal that Glasser was merely a nominal defendant, fraudulently joined by plaintiff in order to destroy complete diversity of citizenship between the parties. Id. ¶¶ 27-29. Litton also claimed that the Court could exercise supplemental jurisdiction over plaintiffs claims arising under Virginia state law. Id. ¶ 19.
Glasser filed its motion to dismiss and a memorandum in support on November 30, 2010. Docket Nos. 6-7. As previously noted, plaintiff filed no response to Glasser’s motion. Glasser then filed a request for a hearing on its motion to dismiss. Docket No. 16.
Litton filed its motion to dismiss or for judgment on the pleadings, along with a memorandum in support, on February 11, 2011. Docket Nos. 11-12. Plaintiff filed an opposition to Litton’s motion. Docket No. 15. Litton then filed a reply in further support of its motion. Docket No. 17.
Plaintiff filed his motion to remand, along with a memorandum in support, on May 6, 2011. Litton filed an opposition to plaintiffs motion. However, Glasser filed no response to plaintiffs motion, and plaintiff filed no reply to Litton’s opposition. Litton filed a request for a hearing on its motion and plaintiffs motion on June 21, 2011.
III. STANDARD OF REVIEW
A. Subject-Matter Jurisdiction
As noted above, Litton removed this matter to this Court on the basis of both this Court’s “federal question” jurisdiction and its “diversity” jurisdiction. In order for this Court to have “federal question” jurisdiction, the matter must “aris[e] under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. According to the United States Court of Appeals for the Fourth Circuit, “[tjhere is no ‘single, precise definition’ of what it means for an action to ‘arise under’ federal law.”
Verizon Md., Inc. v. Global Naps, Inc.,
[t]he Supreme Court has recognized § 1331 jurisdiction in a variety of cases,such as (1) when a federal right or immunity forms an essential element of the plaintiffs claim; (2) when a plaintiffs right to relief depends upon the construction or application of federal law, and the federal nature of the claim rests upon a reasonable foundation; (3) when federal law creates the cause of action; and (4) when the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law.
Id. (internal citations and quotations omitted). Litton claims that plaintiffs repeated references to HAMP render his claims necessarily federal in nature.
This Court also properly has “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.” 28 U.S.C. § 1332. Litton alleges in its notice of removal that the citizenship of the real parties in interest— i.e., plaintiff and Litton, but not Glasser— is completely diverse, and that the matter in controversy — i.e., the value of the Property — far exceeds $75,000.
Litton claims that this Court may also properly exercise supplemental jurisdiction over plaintiffs state-law causes of action in this matter. The Court may exercise such supplemental jurisdiction (“in any civil action of which [it] ha[s] original jurisdiction ... over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.”) 28 U.S.C. § 1367(a).
B. Rule 12(b)(6)
Rule 12(b)(6) permits a defendant to move for dismissal of the claims against it if the plaintiff has failed to state a claim upon which relief can be granted. Fed. R.Civ.P. 12(b)(6). In assessing such a motion, the court must “assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint’s allegations.”
E. Shore Mkts., Inc. v. J.D.
As
socs. Ltd. P’ship,
While the court must construe the facts in the light most favorable to the plaintiff, the court is not obligated to accept the complaint’s legal conclusions.
See Schatz v. Rosenberg,
C. Rule 12(c)
Rule 12(c) provides that “[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). In light of the fact that Litton filed
D. 28 U.S.C. § 1447(c)
Paragraph (c) of 28 U.S.C. § 1447 provides that “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under [28 U.S.C. § ] 1446(a).” 28 U.S.C. § 1447(c). It further provides, consistent with Rule 12(h)(3), that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id.', accord Fed.R.Civ.P. 12(h)(3).
IV. ANALYSIS
A. Plaintiffs Causes of Action
Plaintiffs complaint alleges five causes of action against Litton: (1) breach of contract to modify plaintiffs first mortgage; (2) breach of the trial modification contract; (3) negligent processing of plaintiffs loan modification application; (4) breach of implied contract; and (5) fraudulently proceeding with a foreclosure sale of the Property. None of plaintiffs causes of action is alleged against Glasser; indeed, Glasser is only mentioned three times in plaintiffs complaint.
First, Glasser sent plaintiff a letter dated October 8, 2010, detailing the reasons why Litton terminated its Plan with him. Compl. ¶37 & Ex. D. Second, as noted above, Glasser notified plaintiff on October 15, 2010 of the impending foreclosure sale of the Property. Id. ¶ 38. Finally, plaintiff alleges that if Litton submitted to Glasser the requisite certification that plaintiff was ineligible for a loan modification pursuant to HAMP, then such certification “was a fraudulent certification as Plaintiff are [sic] eligible for the HAMP and all other available loss mitigation alternatives have not been exhausted.” Compl. ¶ 62.
B. Glasser’s Motion to Dismiss
1. The Nature of Plaintiffs Allegations Involving Glasser
Glasser argues in its motion to dismiss that it is not properly joined as a party in the instant matter because plaintiffs complaint fails to allege any wrongdoing by Glasser or seek any relief against Glasser. Plaintiff filed no response to Glasser’s motion, which is now ripe for decision.
As noted above, the Court’s review of the complaint shows there to be no allegations of wrongdoing, either by act or omission, by Glasser. It cannot be said that any of the mentions of Glasser in plaintiffs complaint enumerated above constitute allegations
against
Glasser. First, Glasser’s October 8, 2010 letter merely explained why
Litton
terminated its Plan with him. Although plaintiff doubtless believes that
Litton’s
actions in that connection were harmful to him, there are no allegations suggesting that Glasser’s
letter
about such actions, in and of itself, harmed him. Likewise, plaintiff does not allege that Glasser’s act of sending him the October 15, 2010 notice letter regarding the impending foreclosure sale of the Property was, in and of itself, harmful to him. Finally, plaintiff does not allege that Glasser’s
possible receipt from Litton
of an allegedly fraudulent certification that he
2. Whether Glasser Was Properly Joined
In light of the foregoing observations with respect to plaintiffs complaint, the Court turns to relevant case law to determine whether Glasser was properly joined in this matter by virtue of its status as substitute trustee and its corresponding authority — indeed, obligation — to schedule and conduct a foreclosure sale of the Property. Litton claims that Glasser was improperly joined by plaintiff for the purpose of precluding diversity jurisdiction in federal court. The burden is on the party claiming fraudulent or improper joinder to show that a claim could not be established against the non-diverse defendant even after resolving all issues of law and fact in the plaintiffs favor.
Marshall v. Manville Sales Corp.,
Decisions diverge, based at least in part on various states’ substantive laws regarding substitute trustees, as to whether the citizenship of a substitute trustee is properly taken into account in determining whether complete diversity of citizenship among the parties exists.
Compare Larocque v. BAC Home Loans Servicing,
No. 3-10-0787,
The theme derived from these divergent decisions is that the status of a substitute trustee hinges on the nature of the actions allegedly taken by the trustee, if any, and the type of relief sought against the trustee, if any. For example, if the specific relief requested by a plaintiff cannot be granted without depriving the substitute trustee of legal title to the property at issue, then a court would be impaired in its ability to enter a final judgment that favors the plaintiff.
Payne,
This Court’s review of plaintiffs complaint above appears to distinguish it from the complaint in Payne, which included extensive and substantive allegations against the substitute trustee. The instant complaint appears to be far closer to the complaint in Dempsey, which merely noted the substitute trustee’s citizenship, but did not make any substantive allegations against it. Since the scheduled foreclosure sale of the Property did not, in fact, occur due to plaintiffs filing of the instant matter in state court, plaintiff obviously does not seek here, as did the plaintiff in Payne, to have the Property re-titled. Moreover, plaintiff raises no issue relating to title in any of his causes of action. As noted above, he claims no misconduct by Glasser, and does not request any relief that only Glasser could provide. Accordingly, it appears that both Glasser’s motion to dismiss and Litton’s claim that Glasser was improperly joined have merit, and the Court will therefore GRANT Glasser’s motion and DISMISS Glasser from this matter.
3. Whether Glasser Is Merely a Nominal Party
As the district court noted in
Payne,
in addition to the question of improper or fraudulent joinder, there exists “a related but not identical doctrine” providing that
C. Litton’s Motion for Judgment on the Pleadings
1. Litton’s Arguments
Litton’s motion argues that plaintiffs claims invoking HAMP fail for lack of standing to sue, both because HAMP provides plaintiff with no private right of action and because plaintiff was not the intended beneficiary of any contracts between Litton and third parties. Litton also argues that plaintiffs claimed reliance on verbal representations by Litton in connection with his causes of action violates the statute of frauds, and that his fraud claims fail to plead fraud with sufficient particularity. Litton further argues that plaintiffs claim that Litton breached of the Plan is flatly contradicted by the documents upon which his complaint relies, and that, under Virginia law, plaintiff may not allege a negligence claim, sounding in tort, solely on the basis of the alleged contractual relationship between himself and Litton.
2. The Federal Dimension of Plaintiffs Complaint
As an initial matter, this Court concludes that, to the extent that plaintiffs complaint contains causes of action that could be construed as “arising under” the federal Home Affordable Modification Program (“HAMP”), it must be dismissed. This Court, consistent with the decisions of numerous other courts, has held that HAMP creates no private right of action.
See, e.g., Fowler v. Aurora Home Loans,
Action No. 2:10cv623, slip op. at 3-4 (E.D.Va. Mar. 31, 2011) (Davis, J.);
Bourdelais v. J.P. Morgan Chase,
Civ. No. 3:10CV670-HEH,
Were this Court’s subject-matter jurisdiction in this matter premised solely on the federal questions that, according to Litton, plaintiffs complaint necessarily implicates, the foregoing conclusion would necessarily entail remanding plaintiffs state-law causes of action, because there would remain no federal claim to which the Court could anchor its supplemental jurisdiction. However, in light of this Court’s conclusion above that Glasser was improperly joined, and should be dismissed from this matter entirely, this Court retains subject-matter jurisdiction over the remaining state-law causes of action, notwithstanding the absence of a federal question, by virtue of the complete diversity of citizenship of the real parties in interest: plaintiff and Litton. Consequently, this Court may proceed to consid
3. Litton’s Alleged Breach of Loan Modification Contract
Plaintiff alleges that Litton and he “mutually and voluntarily agreed to modify Plaintiffs existing first mortgage (the Note) in accordance with published HAMP guidelines and supplemental directives.” Compl. ¶ 40. With regard to the formation of this alleged agreement, plaintiff states that Litton “solicited Plaintiff to apply for a HAMP loan modification,” and in that solicitation, Litton “said it would process Plaintiffs application in accordance with the HAMP program if certain conditions were mét.” Id. ¶ 4Í. Plaintiff claims that Litton’s “active solicitation constitutes an irrevocable offer to Plaintiff that if they filled out the appropriate application and submitted the proper paperwork, they would be properly and timely reviewed for a HAMP modification in accordance with the HAMP.” Id. ¶42. Plaintiff further maintains that “[ojnce [he] submitted the required modification application and requested documents ... and [Litton] accepted and began working on the review of that paperwork, a contract to modify the Note pursuant to the published HAMP guidelines and supplemental directives was created.” Id. ¶ 43. Plaintiff claims that Litton breached that contract by denying his request for a loan modification.
Since matters of contract are predominantly issues of state law, and plaintiff has not advanced any theory indicating that the law of Virginia is not controlling in this matter, the Court applies Virginia law in its analysis of plaintiffs contract claim.
See Felder v. Casey,
It is clear, both from plaintiffs complaint and the face of the solicitation plaintiff received from Litton, that Litton’s offer was merely an offer to
consider
plaintiffs
application
for a loan modification, not an outright offer to modify plaintiffs mortgage, under HAMP or otherwise. Addressing the HAMP issue first, the Court notes that plaintiff alleged that Litton solicited him “to apply for a HAMP loan modification.” Compl. ¶ 41. Although plaintiff further characterizes the loan modification allegedly offered by Litton as “a HAMP Trial Modification agreement,” the first page of the solicitation, which was curiously and conspicuously omitted by plaintiff from Exhibit A to his complaint, explicitly provides that “[t]his modification is not a government Home Affordable Modification, and you will not be eligible to receive the benefits of the government program through this modification.”
Compare
Docket No. 12 Ex. 3 at 1,
with
Compl. Ex. A (omitting first page). Assuming that there was an offer, and that plaintiff accepted that offer by providing Litton with the documentation it requested, such an acceptance cannot unilaterally enlarge the scope of Litton’s initial offer to make a non-HAMP offer into a HAMP offer.
Va. Hardwood Lumber Co. v. Hughes,
With respect to the nature of the alleged offer by Litton, the Court also notes that the first page of the solicitation, which, as previously noted, was curious and conspicuously omitted from Exhibit A to plaintiff’s complaint, starts by saying, “You may qualify for a modification,” and goes on to say that “[i]f you qualify for this modification and comply with the terms of the Workout Plan, we will modify your mortgage loan and you can avoid foreclosure.” Docket No. 12 Ex. 3 at 1 (emphasis added). Clearly, this was a mere offer to consider plaintiffs application.
Since no offer was made to modify the contract, no contract to that effect was created. Since no such contract was created, it could not have been breached by Litton. Consequently, plaintiffs breach of contract claim is without merit, and the Court will DISMISS it. 2
4. Litton’s Alleged Breach of the Plan
In a similar vein, plaintiffs complaint also alleges that the Plan constituted a binding contract between Litton and himself, and that Litton breached the Plan by instituting foreclosure proceedings with respect to the Property. As Litton argues in support of its motion, the Court need not accept factual allegations in a complaint that are contradicted by the plain language of underlying documents upon which the complaint relies.
See, e.g., Trigon Ins. Co. v. Columbia Naples Cap., LLC,
As Litton further emphasizes, even if the Plan constituted a binding contract, as plaintiff claims, plaintiff nowhere alleges that he actually made all of the payments explicitly contemplated by the plain language of the Plan in a timely fashion. Plaintiff cannot assert a cause of action relating to the timeliness of payments that are nowhere alleged to have been made. Consequently, the Court will DISMISS plaintiff’s claim for breach of the Plan.
5. Litton’s Alleged Negligent Processing of the Application
As a third cause of action, plaintiff alleges that Litton was negligent in its processing of his loan modification application because it conducted such processing in a “convoluted and disorganized” manner. Compl. ¶ 54. Plaintiff claims that this negligence “eliminated any time or opportuni
Under Virginia law, to establish actionable negligence, plaintiff has “the burden to show the existence of a legal duty, a breach of the duty, and proximate causation resulting in damage.”
Atrium Unit Owners Ass’n v. King,
“The law of torts provides redress only for the violation of certain common law and statutory duties involving the safety of persons and property, which are imposed to protect the broad interests of society.” “[L]osses suffered as a result of the breach of a duty assumed only by agreement, rather than a duty imposed by law, remain the sole province of the law of contracts.”
Kaltman v. All Am. Pest Control, Inc.,
In the present case, plaintiff has failed to allege a duty that is actionable in tort. Instead, plaintiff has merely re-cast his breach of contract claim, which itself is without merit, as a negligence action sounding in tort. According to the complaint, the duty owed to plaintiff arises from Litton “contractually agreeing to modify the Note.” Compl. ¶ 55. As noted above, under Virginia law, a breach of contract may only sound in tort if the contractual duty breached is also a duty imposed at common law. Since any obligations Litton might have had in processing plaintiffs application for a loan modification could only have arisen from the alleged contract between the parties, and thus do not flow from the common law, plaintiff has failed to allege any duty that could serve as the basis for a negligence claim. Accordingly, plaintiffs claim that Litton negligently processed his loan modification application is without merit, and the Court will DISMISS it.
6. Breach of Implied Contract
Plaintiff claims that Litton and he “have an implied contract in law based on the theory of unjust enrichment,” because Litton “has received a benefit in the form of incentive money from the federal government,” and “[b]y inducing Plaintiff into the agreement to modify the contract, [Litton] qualified for these benefits.” Compl. ¶¶ 58-59. Plaintiff asserts that “[i]t would violate equity for [Litton] to retain those benefits without fulfilling its obligations to Plaintiff. [Litton] must adhere to terms [sic] of the contract implied at law, grant Plaintiffs loan modification, and allow
Plaintiffs argument in connection with this cause of action appears to be that he was an intended third-party beneficiary to Litton’s participation in HAMP. As noted above, however, the loan modification offered to plaintiff by Litton, by its very terms, was not offered under the auspices of HAMP. Moreover, even if such offer had been made under the auspices of HAMP, as discussed above, district courts have uniformly rejected the proposition that plaintiffs have standing to sue under HAMP, under a third-party beneficiary theory or otherwise. Accordingly, the Court will DISMISS plaintiffs breach of implied contract claim.
7. Fraud
Plaintiffs final cause of action against Litton alleges that Litton “is fraudulently proceeding with the foreclosure sale of Plaintiffs property.” Compl. § VI. Plaintiffs fraud allegation consists entirely of the following two grammatically challenging paragraphs:
Defendant [Litton] to [sic] certify, in writing, to the foreclosure attorney/trustee that Plaintiff were ineligible for the HAMP, as required by Supplemental Directive 10-02 concerning Certification Prior to Foreclosure Sale. Servicers are required to provide to the foreclosure/attorney/trustee a written certification that, “i) one of the five circumstances under the ‘Prohibition on Referral and Sale’ section of this Supplemental Directive exists, and ii) all other available loss mitigation alternatives have been exhausted and a non-foreclosure outcome could not be reached.”
If Defendant [Litton] submitted such certification to Defendant Substitute Trustees, then it was a fraudulent certification as Plaintiff are [sic] eligible for the HAMP and all other available loss mitigation alternatives had not been exhausted.
Compl. ¶¶ 61-62.
Under Virginia law, in order to plead fraud, a plaintiff must allege (1) the existence of a false representation; (2) of a material fact; (3) which was made intentionally and knowingly; (4) with intent to mislead; and (5) that the plaintiff relied on that misrepresentation to his detriment.
Sales v. Kecoughtan Horn. Co.,
In the instant matter, plaintiff contends that if Litton made a certification to the foreclosure attorney or trustee regarding the plaintiffs ineligibility for a HAMP modification, that certification was fraudulent. The fact that plaintiff cannot even plead that this certification was actually made—not to mention the aforementioned fact that the loan modification offered by Litton to plaintiff was not under the auspices of HAMP—underscores the entirely speculative nature of plaintiffs fraud claim. Moreover, since plaintiff is unsure of whether this certification was made, he is unable to allege that he relied on such a certification to his detriment. Since a misrepresentation of fact, and reliance on that misrepresentation, are two essential elements of a cognizable fraud claim, plaintiff has failed to satisfy the minimum pleading requirements necessary
D. Plaintiffs Motion to Remand
The Court’s determinations above with respect to Glasser’s motion to dismiss and Litton’s motion for judgment on the pleadings render plaintiffs motion for remand moot, and the Court will DENY it on that basis. Despite the absence of a valid federal claim in plaintiffs complaint, in light of the improper joinder of Glasser, the Court properly retains jurisdiction over this matter by virtue of the complete diversity of citizenship between the real parties in interest and the manifest fact that the value of the Property exceeds $75,000. Consequently, the Court did not need to remand this matter to state court, but instead properly determined plaintiffs state-law claims.
V. CONCLUSION
In sum, to the extent plaintiffs complaint implicates HAMP, it must be dismissed due to the lack of any private right of action thereunder. The Court also concludes that no contract to modify plaintiffs mortgage ever existed between plaintiff and Litton. Therefore, it could not have been breached. With respect to plaintiffs negligence claim, he has failed to show the existence of a duty that Litton owed to him in connection with the processing of his loan modification application. As a result, he has failed to allege a cognizable claim of negligence. Finally, the allegations supporting plaintiffs fraud claim are also inadequate, because he has failed to plead a misrepresentation on the part of Litton, and he has not shown that he relied upon any misrepresentation that could have existed. For all of the foregoing reasons, Glasser’s motion to dismiss is GRANTED, Litton’s motion for judgment on the pleadings is GRANTED, plaintiffs motion to remand is DENIED as moot, and this matter is DISMISSED, with prejudice.
The Clerk is DIRECTED to send a copy of this Opinion and Order to counsel for the parties.
IT IS SO ORDERED.
Notes
. The facts recited herein are drawn from plaintiff’s complaint and the various underlying documents upon which it relies, which were attached to the parties’ briefs on Litton's motion. "[W]hen a plaintiff fails to introduce a pertinent document as part of his complaint, the defendant may attach the document to a motion to dismiss the complaint and the Court may consider the same without converting the motion to one for summary judgment.”
Gasner v. County of Dinwiddie,
. Plaintiff further alleges that "[d]ue to Defendant [Litton]'s breach of the contract to modify the Note, Plaintiff changed their position and suffered a detriment. Defendant induced Plaintiff, through Defendant’s representations to rely in good faith on their mutual agreement to modify the loan....” Compl. ¶49. To the extent that such allegation is made as a basis for an argument for relief under a promissory estoppel theory, plaintiff has failed to make the requisite showing. A cause of action based on promissory estoppel requires,
inter alia,
“a promise.”
Mongold v. Woods,