MEMORANDUM OPINION
In this action, Plaintiff Elayne Wolf (“Wolf’) seeks rescission of her home mortgage loan under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq. On August 30, 2011, I denied Defendants’ motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), finding that they were moot in light of Wolfs filing of an amended complaint on August 22, 2011. However, I gave Defendants leave to re-file their motions within fourteen days, which they in turn did. This matter is now before the Court upon consideration of Defendants’ motions to dismiss Wolfs amended complaint. For the reasons that follow, I will grant Defendants’ motions.
I. Background
As amended, the complaint alleges that Wolf owned a home in Charlottesville, Virginia, and that on May 14, 2007, she refinanced her home mortgage loan through MetroCities Mortgage, LLC (“MetroCities”). Her loan from MetroCities was evidenced by a note secured by a deed of trust, and was secured by a lien on the home. One purpose of the home loan was to enable Wolf to refinance debt she owed to Countrywide Home Loans (“Countrywide”). The deed of trust named Mortgage Electronic Systems, Inc. (“MERS”) as the lender’s nominee, and MERS held legal title as to rights conveyed by the deed of trust and could take certain actions on behalf of the lender, including foreclosure.
Ultimately, Wolf defaulted under the terms of her mortgage loan, and, on or about March 12, 2010, she received a letter from the Law Offices of Shapiro & Burson, LLP informing her of her rights and alter
Thereafter, Fannie Mae instituted an unlawful detainer action against Wolf in the General District Court of Albemarle County. On March 18, 2011, the general district court entered an order awarding possession of the home to Fannie Mae. Subsequently, Wolf timely perfected an appeal to the Circuit Court of Albemarle County for a trial de novo.
In her amended complaint, Wolf submits that she is entitled to have the home loan on which she defaulted rescinded pursuant to TILA. First, she alleges that the original lender, MetroCities, materially under-disclosed the applicable finance charge that was assessed as part of obtaining the loan. Second, Wolf alleges that her right to rescind the loan itself was not properly disclosed. In addition, Wolf asserts that both the assignment of the note from MERS to BAC and BAC’s appointment of PFC as substitute trustee were invalid. The amended complaint also arguably makes out claims for fraud (against Bank of America and PFC), defamation (against PFC), and breach of the implied covenant of good faith and fair dealing (against Bank of America).
II. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin,
In sum, Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570,
III. Discussion
A. TILA
In enacting TILA, Congress found “that economic stabilization would be enhanced ... by the informed use of credit.” 15 U.S.C. § 1601(a). Accordingly, TILA’s principal goal is the “meaningful disclosure of credit terms.” Id. TILA’s rescission provisions support this goal. Generally, when a borrower enters into a consumer credit transaction secured by his principal residence, TILA’s “buyer’s remorse” provision grants a right of rescission, which the creditor must “clearly and conspicuously disclose” to the borrower. 15 U.S.C. § 1635(a). The right of rescission may be exercised within three days of either closing, delivery of a notice of right to rescind, or delivery of all “material disclosures,” whichever occurs last. Id.; 12 C.F.R. §§ 226.23(a)(l)-(3).
TILA requires that the mortgage lender disclose the applicable finance charge for a mortgage, which is defined as “the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.” 15 U.S.C. § 1605(a). Thus, the finance charge is the cost to the borrower of obtaining the loan, and in-
In addition to disclosure of the finance charge, TILA also mandates that the lender accurately disclose the borrower’s right to rescind the loan. As previously mentioned, creditors must provide a notice that “clearly and conspicuously disclose^]” the borrower’s rescission rights. 15 U.S.C. § 1635(a); 12 C.F.R. § 226.15(a)-(b). Clear and conspicuous disclosure is not, however, synonymous with perfect disclosure. See Santos-Rodriguez v. Doral Mortg. Corp.,
In this case, MetroCities required Wolf to enter into an arbitration agreement as a condition of the loan. Thereafter, Wolf was informed about her right to rescind that arbitration agreement as well as her right to rescind the loan itself. Wolfs allegation is that the information provided for rescinding the arbitration agreement and for rescinding the credit transaction were “drastically” inconsistent, thus undermining the otherwise accurate information provided to Wolf about her right to rescind the loan. Specifically, Wolf alleges that rescinding the arbitration agreement would have required her to send a cancellation notice to a different address with different information than that required for rescission of the loan as evidenced by the Notice of Right to Cancel. Am. Compl. ¶ 11(B). The effect, according to Wolf, was that the Notice of Right to Cancel was rendered “insufficiently clear to comply with the requirements of TILA.” Pl.’s Mem. Opp’n to Mots. Dismiss at 22.
Ultimately, I find it unnecessary to delve into the two aforementioned grounds on which Wolf has staked her claim to a right of rescission because that claim is time-barred and must be dismissed as a matter of law.
1. Rescission and the Limitations Period
Under TILA, the borrower ordinarily has three days from the date of closing in which it may rescind the transaction in its entirety. 15 U.S.C. § 1635(a) (“[T]he obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section____”). However, “[i]f the required notice or material disclosures are not delivered, the right to re
Wolf maintains that the three-year limitations period should apply because, as previously outlined, she alleges that the financing charges were under-disclosed and that she was not properly informed of her right to rescind (because cancellation of the arbitration agreement could be achieved by sending a notice to an address different from the one listed in the Notice of Right to Cancel). Although I decline to decide whether Wolf is even entitled to the three-year limitations period in this case, assuming, arguendo, that she is, her TILA rescission claim is still time-barred. Wolf obtained her mortgage loan on May 14, 2007, and she mailed to BAC a notice of rescission on May 2, 2010. However, Wolf did not file her initial complaint in the Circuit Court of Albemarle County until February 24, 2011. Plainly, while the notice of rescission was sent within the three-year limitations period (again, assuming it actually applies), Wolfs suit seeking rescission was not filed within that period. Thus, the question is whether the timeliness of Wolfs action is measured by the date of her notice of rescission or of her filing of this lawsuit.
Quite recently, I confronted essentially the same facts, and I concluded that the three-year limitations period is absolute and “extinguishes the borrower’s rescission right regardless of whether any notice of rescission was filed within three years of closing.” Yowell v. Residential Mortgage Solution, LLC, No. 3:10-cv-00063,
2. Damages and the Limitations Period
In addition to her claim seeking to enforce her rescission request, I find that Wolfs claim for damages under TILA is also barred by the applicable limitations period. Under 15 U.S.C. § 1640(e), claims for damages pursuant to TILA expire one year after the occurrence of the violation. Defendants assert that because the violations alleged by Wolf occurred, if at all, when the initial material disclosures were made for the loan on or about May 14, 2007 (the date the loan was obtained), they are clearly time-barred. In response, Wolf specifies that her claim for damages is for failure to honor her notice of rescission, which occurred twenty days from BAC’s receipt of it in May 2010. See 15 U.S.C. § 1635(b) (‘Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, down-payment, or otherwise----”). In essence, then, Wolf argues that BAC’s failure to proceed according to § 1635(b) constitutes a separate TILA violation subject to the
In Bradford, the district court for the Eastern District of Virginia addressed this precise argument on the part of the plaintiff in that case, and concluded that it was flawed. 799 F.Supp.2d at *631-32. The court observed that there was no reason to believe that “Congress would draft TILA so as to provide a borrower with two rescission claims, each with a different limitations period, but both for the purpose of achieving the same remedy under the same statute based on the same underlying statutory rescission right.” Id.
B. Validity of MERS’s Assignment
In addition to her TILA-based claims, Wolf challenges the propriety of the assignment from MERS to BAC. In Wolfs view, the assignment was invalid for two reasons. First, she contends that the deed of trust did not provide MERS with the right to assign the note. Second, Wolf alleges that neither MERS nor BAC possessed the note when it was purportedly assigned because the note was, in fact, lost at that time. Ultimately, I find both allegations lacking, and I address them in turn.
1. Authority of MERS to Assign Its Rights
At the outset, I note that Wolf is not a party to the assignment from MERS to BAC. Am. Compl. Ex. B. Similarly, Wolf is not an intended beneficiary of the assignment which is, to be sure, a contract. Id. Indeed, Wolf does not allege that she is either a party to the assignment or an intended beneficiary. As such, she lacks standing to challenge the assignment’s validity. See, e.g., Velasco v. Security Nat’l Mortgage Co., CV. No. 10-00238,
In Bridge v. Aames Capital Corp., No. 1:09 CV 2947,
Moreover, aside from her lack of standing, Wolf is simply mistaken with respect to the validity of the assignment. The deed of trust securing the note, which Wolf executed, states in pertinent part:
The beneficiary of this [deed of trust] is MERS (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS.... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right to execute any and all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and cancelling this Security Instrument.
Am. Compl. Ex. A at 3. Wolf contends that when MERS assigned its rights to BAC on March 30, 2010, it was impermissibly attempting to assign the debt itself. Now, it is true that the note that Wolf signed evidencing the debt owed to MetroCities did not confer any rights on MERS or name MERS as a party to it. However, MERS assigned its interests in the deed of trust—not the underlying note—to BAC. Am. Compl. Ex. B (“FOR VALUE RECEIVED, [MERS] hereby assigned and transferred to [BAC] all right, title, and interest in and unto a certain Deed of Trust, dated May 14, 2007 and executed by [Wolf],...”). Thus, MERS did not transfer to BAC the underlying debt owed to MetroCities, but rather its own limited rights (including the right to foreclose) as set forth in the debt of trust. Such an agreement is not unlawful and was explicitly permitted by the terms of the deed of trust, which Wolf signed. Recently, several different courts tasked with assessing the validity of similar assignments have concluded that MERS has the right to assign its rights under these mortgages or deeds of trust. See, e.g., Cervantes v. Countrywide Home Loans, Inc.,
Additionally, Wolf maintains that a deed of trust cannot be assigned as it was in this case because the rights under a deed of trust must “follow the note.” Am. Compl. at ¶ 16. In support of this contention, Wolf cites generally, without particular reference, to Horvath v. Bank of New York, N.A.,
2. The Unavailability of the Note
Wolf also contends that the assignment was invalid because on March 12, 2010—eighteen days before the formal assignment—Wolf received a letter from BAC’s legal counsel informing her that the note was “unavailable at this time.” Amend Compl. Ex. C. Wolf alleges that this letter is evidence that the note was lost,
First, in the letter from Shapiro & Bur-son to Wolf, BAC is identified as the “Holder.” Am. Compl. Ex. C. Second, BAC is listed in the document appointing PFC as substitute trustee as the “present holder or authorized agent of the holder of the Note secured by the below described Deed of Trust (hereinafter referred to as ‘Noteholder’).” Am. Compl. Ex. D. Third, and most importantly, PFC has stated both in its reply memorandum and at a hearing on its motion that it is currently in possession of the original note on behalf of Bank of America. Indeed, a copy of the note, which PFC attaches to its brief,
C. Validity of the Appointment of the Substitute Trustee
[8] In her amended complaint, Wolf alleges that PFC “had no authority to proceed as substitute trustee and acted ultra vires in purporting to sell the home at foreclosure.” Am. Compl. ¶ 32(B). As I just discussed, PFC has possession of the note on behalf of BAC, and BAC received from MERS, via the assignment, the right to foreclose. Therefore, BAC could, once Wolf fell into arrears, direct PFC to conduct the foreclosure sale. See, e.g., Larota-Florez, 719 F.Supp.2d at 64CM1 (finding that MERS’s assignee had authority to appoint PFC as trustee to sell the property at a foreclosure sale). However, Wolf bases her allegation regarding the appointment’s invalidity on different grounds. Wolf contends that the notarized document effectuating the appointment was “bogus” because the second page was not attached to the first page when it was signed. Because the pages were not attached, Wolf maintains, the second, signed page “did not remove Barrett as trustee on the deed of trust and did not appoint PFC as substitute trustee.” Am. Compl. ¶ 26(B).
In support of this allegation, Wolf cites Virginia Code § 55-59(9), which states that “[wjhen the instrument of appointment has been executed, the substitute trustee or trustees named therein shall be vested with all of the powers, rights, authority, and duties vested in the trustee or trustees.” In light of § 55-59(9), Wolf argues that the second, signed page could not have served as an appointment of a substitute trustee because it contained no language to that effect; rather, all it contained was BAC’s signature. See Am. Compl. Ex. D. As such, Wolf contends that there never was an executed document appointing PFC as substitute trustee, and “Virginia statutory law does not allow a purported substitute trustee to be appointed merely by intention of the lender.” PL’s Mem. Opp’n to Mots. Dismiss at 16. However, Wolf does not allege any
Moreover, Wolf does not cite any case law for the notion that Virginia Code § 55-59(9) requires the instrument of appointment to be completely intact when it is executed. In other words, Wolf has not supplied any authority for her position that all of the individual pages need to be stapled or clipped together when the page containing the signatory line is actually signed. In fact, the only authority Wolf points to in this regard is Stanley Dale Williams v. HSBC Finance Corporation, No. CL 10-877 (Va.Cir.Ct Mar. 30, 2011). In that case, the court did overrule the defendant’s demurrer and found that the plaintiff had stated a claim upon which relief could be granted. Id. at 2. However, the allegation in that case was that the two pages of a notarized document were not executed in the same place at the same time, calling into question whether the document had been executed personally in front of the notary. Id. Wolf does not allege, nor does she argue in her brief, that the two pages of the appointment were executed in different places or at different times (indeed, the first page does not contain any signatures); it is only asserted that the pages were not attached when the second page was signed. Taken as true, this allegation, in itself, is inadequate to support Wolfs claim that the appointment of PFC as substitute trustee was invalid.
However, Wolf also argues that the appointment was invalid because she alleges that BAC was not a holder of the note at the time it appointed PFC. In a letter dated August 23, 2010, Bank of America (which was still, at that point, a separate entity from BAC) identifies itself as “servicer” of Wolfs loan and names Fannie Mae as the “lender.” Am. Compl. Ex. F. According to Wolf, the letter indicates that Fannie Mae, not BAC, was the noteholder. Consequently, Wolf argues, BAC was also not the holder of the note when it appointed PFC as substitute trustee on March 30, 2010.
Again, though, Wolf has failed to allege sufficient facts. Nothing in the August 23, 2010 letter indicates when Fannie Mae became the “lender” or, more importantly, whether Fannie Mae was the “lender” at the time of the appointment, nearly five months earlier. In addition, as Bank of America observes, “lender” is undefined in the August 23, 2010 letter, and could have simply meant investor. Indeed, Fannie Mae purchased the property at the foreclosure sale in July 2010 prior to the issuance of the letter in August. Finally, as has been mentioned previously, in the document effectuating the appointment of PFC, BAC is defined as “Noteholder.” Am. Compl. Ex. D. Therefore, Wolf has not met her burden; a vague statement in the August 23, 2010 letter, by itself, cannot undermine the fact that BAC is described in the appointment document as the note-holder.
D. Fraud
In her loosely-articulated cause of action for fraud, Wolf alleges that the cre
Under Virginia law, a claim of actual fraud consists of: (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled. State Farm, Mut. Auto. Ins. Co. v. Remley,
Ultimately, the facts pled by Wolf are insufficient to make out a claim for fraud against Bank of America (formerly known as BAC) and PFC because they do not allege a false representation of a material fact. The document appointing PFC as substitute trustee, regardless of whether its pages were attached when it was executed, captured the intent of both BAC and PFC to be bound by it. In other words, both BAC and PFC wanted PFC to take Barrett’s place as trustee. And, as previously articulated, BAC had authority to appoint PFC. Therefore, neither entity falsely represented a material fact.
In addition, at no point does Wolf allege one of the requisite elements of a fraud claim: that Defendants had the intent to mislead her. Indeed, Defendants convincingly argue that they could not have done so given the fact that the document appointing PFC was recorded and a copy of it was mailed to Wolf. That the appointment of PFC as substitute trustee may have suffered from procedural irregularities—a contention that Defendants unequivocally deny—does not make it a false representation as required by Virginia law, nor one intended to mislead Wolf. Further, Wolf did take action to prevent the foreclosure sale, albeit belatedly, by requesting rescission of the note pursuant to TILA. Indeed, by the time PFC entered the scene, Wolf had already fallen into arrears on the note. Therefore, Wolf simply cannot argue that she relied on any misrepresentations to her detriment. Similarly, Wolf has failed under the requirements of Rule 9(Bb) to plead adequate facts to demonstrate that the advertisement of the foreclosure sale represented fraud. Wolf does not allege precisely what within that advertisement was false or misrepresented, nor does she sufficiently allege that either BAC or PFC had the intention of defrauding her simply because they sought to foreclose on her home after she had defaulted, a step that she knew or should have known they would likely take.
Additionally, Bank of America (formerly BAC) argues that Wolfs common law fraud claims are barred by Virginia’s economic loss rule. According to
Thus, whether the economic loss doctrine applies requires a court to determine first “whether a cause of action sounds in contract or tort” by ascertaining “the source of the duty violated.” Richmond Metro. Auth.,
I, however, disagree. Wolfs argument that the right to foreclose on a home is governed to a certain extent by Virginia statutory law is a red herring. While it is true that the Virginia Code does, for example, provide a mechanism for the appointment of a substitute trustee, Wolf has failed to articulate precisely how her claims here do not sound in contract law. Indeed, the note evidencing the loan, the deed of trust securing it, the assignment to BAC, and the appointment of PFC all represent contracts. Moreover, any duty owed to Wolf by Defendants in this case does not exist absent an agreement between them. The economic loss rule “is intended to preserve the bedrock principle that contract damages be limited to those within the contemplation and control of the parties in framing their agreement.” Richmond v. Madison Mgmt. Group, Inc.,
E. Defamation
Wolfs entire allegation of defamation is as follows: “The actions of PFC in advertising the home for foreclosure
In execution of a Deed of Trust ... from ELAYNE WOLF dated May 14, 2007 ... the undersigned appointed Substitute Trustee will offer for sale at public auction at the front of the Circuit Court building for the County of Albemarle located at 501 E. Jefferson Street, Charlottesville, Virginia on July 21, 2010....
Id. In Virginia, the elements of common law defamation are: the (1) publication of (2) an actionable statement with (3) the requisite intent. Chapin v. Knight-Ridder, Inc.,
In the instant case, Wolf alleges that the advertisement of the foreclosure sale was false because her home was not subject to foreclosure by her reading of the terms of the deed of trust. Even accepting this contention as true for the purposes of argument, Wolf has not pled sufficient facts to make out a claim for defamation. At bottom, the statement contained within the advertisement that a foreclosure sale would be conducted was patently true, regardless of the legitimacy of the sale. Moreover, Wolf was, by her own admission, unquestionably in default. Thus, publication of a foreclosure sale notice was justified by Wolfs failure to make payments on the loan. Absent a false statement about her, the notice cannot support a defamation claim.
Further, even if Wolf had sufficiently alleged that the publication of the foreclosure sale contained a false statement, her defamation claim must be dismissed because she has asserted that the foreclosure sale notice caused her embarrassment, public shame, and emotional harm without any supporting facts or contentions. In Blagogee v. Equity Trs., LLC, No. l:10-cv-13,
Finally, in order to make out a claim for defamation, a plaintiff must allege that the defendant had the “requisite intent.” Chapin.,
F. Breach of the Implied Covenant of Good Faith and Fair Dealing
According to Wolf, the note and accompanying deed of trust contained an implied covenant obligating the holder of the note (and any entity acting as creditor) to “treat Wolf with good faith and fair dealing.” Am. Compl. ¶ 17. Wolf alleges, without any specification or elaboration, that the actions of BAC generally, as outlined in her amended complaint, resulted in a breach of this obligation. Am. Compl. ¶ 38.
Wolf bases the existence of this implied covenant on Virginia Code § 8.1A-304, which states that every contract, like the note here, that is governed by the Uniform Commercial Code (“U.C.C.”) “imposes an obligation of good faith in its performance and enforcement.” See also Enomoto v. Space Adventures, Ltd.,
However, when parties to a contract “create valid and binding rights, one party does not breach the U.C.C.’s obligation of good faith by exercising such rights.” Charles E. Brauer Co. v. NationsBank of Va., N.A.,
In Ward’s, in which the court found that the implied covenant was inapplicable, the only conduct on the defendant’s part that the court addressed was explicitly authorized by the underlying contract in that case.
However, as I previously explained, MERS had authority to assign the note to BAC, and BAC had authority to appoint PFC as substitute trustee. In other words, it was within BAC’s contractual rights under the note and deed of trust to act as it did, including its decision to appoint PFC and its request thereafter that PFC begin taking steps towards foreclosure. Moreover, aside from possibly her allegation that two pages of the document appointing PFC may not have been attached at the moment the second page was signed, Wolf has failed to plead facts sufficient to demonstrate how BAC exercised its contractual discretion in bad faith, acted dishonestly, or dealt with Wolf unfairly.
Although it is, concededly, an ambiguous term, “good faith” at least includes “faithfulness to an agreed common purpose and consistency with the justified expectations of the other party [to a contract].” Restatement (Second) of Contracts § 205 cmt. a (1981). Surely a “justified expectation” of a party, like Wolf, who contracts for the receipt of a mortgage loan by putting her home up as collateral is that the lender (or its nominee or assignee) may initiate foreclosure proceedings through a trustee upon default. Even if I were to accept Wolfs contention that there were procedural irregularities associated with the transactions over which BAC presided, that, in itself, is not enough to make out a claim for breach of this implied covenant. Therefore, this claim too must be dismissed.
IV. Conclusion
For the reasons stated herein, Defendants’ motions to dismiss (docket nos. 34, 36) shall be granted.
The Clerk of the Court is hereby directed to send a certified copy of this Memorandum Opinion and the accompanying Order to all counsel of record.
Notes
. Effective July 1, 2011, BAC Home Loans Servicing LP merged with and into Bank of America, N.A., and lost any separate identity.
. That case is currently set for a jury trial on March 7, 2012.
. The claims are not separated into counts in the complaint. Federal Rule of Civil Procedure 10(b) provides that if doing so “would promote clarity, each claim founded on a separate transaction or occurrence ... must be stated in a separate count or defense.”
. Federal Rule of Civil Procedure 10(c) provides that a copy of a written instrument that is an exhibit to a pleading, including a complaint, is deemed a part of that pleading. See Thompson v. Greene,
. The regulations implementing TILA, which are codified at 12 C.F.R. § 226, are known as "Regulation Z.”
. It is undisputed that the Notice of Right to Cancel, taken alone, was in proper form.
. As noted, Yowell is on appeal to the United States Court of Appeals for the Fourth Circuit. Wolf concedes that Yowell is "on all fours with this case on this issue, but asks the Court to reverse in this case the decision in that case on the issue of the limitations period for a TILA rescission claim.” PL’s Mem. Opp'n to Mots. Dismiss at 29.
. Indeed, ‘‘[ojbligors of a claim may not defend on any ground which renders the assignment voidable only, because the only interest or right which an obligor of a claim has in the instrument of assignment is to insure him or herself that he or she will not have to pay the same claim twice.” Id.
. Although Wolf alleges that the document stated that the note had been lost, the document was attached to the amended complaint as Exhibit C, and it states only that the note "is unavailable at this time.” Where a conflict exists between "the bare allegations of the complaint and any attached exhibit, the exhibit prevails.” United States ex rel. Constructors, Inc. v. Gulf Ins. Co.,
. Bank of America also urges that the statement that the note was unavailable as of March 12, 2010 is subject to the more benign interpretation that the note was not yet available to BAC, or that the note was not yet available to counsel for BAC, who authored the letter. However, at this stage, I consider the facts as alleged by Wolf to be true, and they need only plausibly support a claim in order to survive a motion to dismiss.
. This document may be considered at this stage for the purposes of the motions to dismiss and without having to convert those motions into ones for summary judgment because Wolf referred to the note in her amended complaint and it is central to her claims. See Witthohn v. Fed. Ins. Co.,
. In addition to the foregoing arguments, PFC argues that, at bottom, Wolf’s amended complaint is nothing more than a "show me the note” claim, which is contrary to Virginia's non-judicial foreclosure laws. PFC points out that Virginia law provides that a trustee may sell a property subject to a note secured by a deed of trust even where the note is lost or cannot be produced, as long as the person required to pay the instrument is given notice. Va.Code § 55-59.1(B). This provision does not address, however, the issue of whether a deed of trust may be assigned where the note is missing. The fact that an inability to locate the deed of trust is not fatal to proceeding with foreclosure may suggest that an inability to locate the deed of trust is also not fatal to its assignment, but it does not provide a definitive answer.
. Under Virginia law, "[wjhen endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially endorsed.” Va.Code at § 8.3A-205(b). "An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” Id. at § 8.3A-203(a). Once in possession of the instrument, its holder is entitled to enforce it. Id. at § 8.3A-301.
. See also supra Subsection III.B.2.
. It should be noted that because Wolf does not break down her claims into counts, her amended complaint could be construed as alleging defamation by Bank of America (formerly BAC) and Fannie Mae as well. To the extent Wolf does so, any such claims are dismissed as she does not allege that either BAC or Fannie Mae ever published any statements about her.