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Sloan v. Urban Title Services

September 17, 2009

ANDREA SLOAN, AS GUARDIAN AND CONSERVATOR ON BEHALF OF MARY JUERGENS, AN INCAPACITATED INDIVIDUAL, IN BOTH MARY JUERGENS' INDIVIDUAL CAPACITY AND AS THE SOLE MEMBER OF "1230 23RD STREET, LLC," PLAINTIFF,
v.
URBAN TITLE SERVICES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

The above-captioned lawsuit was filed by the original Plaintiff in this matter, Mary Juergens,*fn1 nearly three years ago to challenge the legality of two disparate loans extended to Plaintiff, each of which was secured by a condominium located at 1230 23rd Street, N.W., Apartment 505, Washington, D.C. 20037 (the "Condo"). Plaintiff named as Defendants in this action Urban Title Services, Inc. ("UTS") as well as Dale Duncan, First Mount Vernon Industrial Loan Association, Inc. ("FMVILA"), Arthur Bennett, and Brickshire Settlements, LLC ("Brickshire").*fn2 According to Plaintiff, the first of the two loans at issue in this case was extended by the Owen Living Trust with the assistance of UTS (hereinafter the "Owen Loan"), while the second loan (hereinafter "FMV Loan") was extended by FMVILA with the assistance of Bennett, Duncan and Brickshire (collectively with FMVILA, "FMV Defendants").

Currently pending before the Court are a series of cross-motions for partial summary judgment filed by the various parties in this action. This Memorandum Opinion addresses only those motions for partial summary judgment filed by Plaintiff with respect to allegations in her Fourth Amended Complaint relating to the second loan-i.e., the loan extended by FMVILA with the assistance of Bennett, Duncan and Brickshire-and the FMV Defendants' related cross-motions for partial summary judgment. There are nine such motions: (1) Plaintiff's [158] Motion for Summary Judgment on the Issue of Whether Defendant FMVILA's Loan Violated Virginia Code § 6.1-237.6(A)(2) by Extending a Commercial Loan on Property Located Outside of the Commonwealth of Virginia; (2) FMV Defendants' [180] Cross Motion for Summary Judgment regarding Virginia Code § 6.1-237.6(A)(2); (3) Plaintiff's [175] Motion for Partial Summary Judgment on the Issue of FMVILA's Counterclaims; (4) Plaintiff's [159] Motion for Summary Judgment on the Issue of Whether Defendant FMVILA's Loan Violated Virginia Code § 6.1-237.6(A)(6) by Failing to Provide Required Loan Disclosures; (5) FMV Defendants' [184] Cross-Motion for Summary Judgment on the Issue of a Failure to Provide Loan Disclosures; (6) Plaintiff's [160] Motion for Summary Judgment on the Issue of Improper Notarization; (7) FMV Defendants' [181/182] Cross Motion on the Issue of Improper Notarization; (8) Plaintiff's [162] Motion for Summary Judgment on the Issue of the Lack of Consideration for the Alleged Sale of Property from Mary Juergens to the 1230 23rd Street, LLC; and (9) FMV Defendants' [173] Cross-Motion on the Issue of the Adequacy of Consideration for the Sale of Property.

Upon a searching review of the memoranda filed with respect to the pending motions, the exhibits thereto, the relevant case law and statutes, and the entire record herein, the Court orders as follows, for the reasons set forth below:

* Plaintiff's [158] Motion for Summary Judgment on the Issue of Whether

Defendant FMVILA's Loan Violated Virginia Code § 6.1-237.6(A)(2) by Extending a Commercial Loan on Property Located Outside of the Commonwealth of Virginia and FMV Defendants' [180] Cross-Motion for Summary Judgment regarding Virginia Code § 6.1-237.6(A)(2) are DENIED; * Plaintiff's [175] Motion for Partial Summary Judgment on the Issue of FMVILA's Counterclaims is DENIED; * Plaintiff's [159] Motion for Summary Judgment on the Issue of Whether Defendant FMVILA's Loan Violated Virginia Code § 6.1-237.6(A)(6) by Failing to Provide Required Loan Disclosures and FMV Defendants' [184] Cross-Motion for Summary Judgment on the Issue of a Failure to Provide Loan Disclosures are DENIED; * Plaintiff's [160] Motion for Summary Judgment on the Issue of Improper Notarization is DENIED-IN-PART and the FMV Defendants' [181/182] Cross-Motion on the Issue of Improper Notarization is GRANTED-IN-PART, insofar as each relates to the question of whether the Deed and Deed of Trust are void as between the parties in this litigation based upon improper notarization, but the motions are HELD-IN-ABEYANCE-IN-PART insofar as each relates to Plaintiff's allegations that the Deed and Deed of Trust should be stricken from the Office of the Recorders of Deed. Plaintiff shall file, on or before October 2, 2009, a notice to the Court advising it as to whether her request is now moot in light of the recent agreement by the parties regarding the sale of the Condo; and * Plaintiff's [162] Motion for Summary Judgment on the Issue of the Lack of Consideration for the Alleged Sale of Property from Mary Juergens to the 1230 23rd Street, LLC and the FMV Defendants' [173] Cross-Motion for Partial Summary Judgment on the Issue of the Adequacy of Consideration for the Sale of the Property from Mary Juergens to the 1230 23rd Street LLC are DENIED.

I. BACKGROUND

A. Factual Background

The Court assumes familiarity with the factual background of this case, which is set forth in detail in both its May 25, 2007 Memorandum Opinion, see generally Juergens v. UTS, 246 F.R.D. 4 (D.D.C. 2007) (hereinafter "Juergens I"), and its February 4, 2008, Memorandum Opinion, see generally Juergens v, UTS, 533 F. Supp. 2d 64 (D.D.C. 2008) (hereinafter "Juergens II"), and therefore discusses only those facts that are relevant to the motions at issue in the instant Memorandum Opinion. In particular, although Plaintiff's Fourth Amended Complaint includes a variety of allegations regarding the Owen Loan, the Court does not address herein the facts relevant to that loan because Plaintiff's claims as to UTS are irrelevant to the motions at issue in this Opinion.

At the outset, the Court notes that it is difficult, if not impossible, at this time to set forth a concise and comprehensive statement of the facts in this matter as they relate to the FMV Loan and Plaintiff's allegations against the FMV Defendants. This is largely because Plaintiff, in proceeding with the instant motions, has continued her strategy of prosecuting this case in a piecemeal fashion. She has filed a multitude of motions for partial summary judgment that are each limited to a single issue and that do not include or discuss the vast majority of her allegations against the FMV Defendants in this litigation. Moreover, each motion includes only a truncated statement of material facts that addresses solely those facts that Plaintiff believes are relevant to the issue being challenged in that particular motion. The relevant cross-motions filed by the FMV Defendants-i.e., those motions that were filed in direct response to and focus solely on the issues raised in Plaintiff's motions- generally follow the lead of Plaintiff's opening motions and respond in kind. As a result of this fragmented approach, the parties' briefing on Plaintiff's motions for partial summary judgment provide the Court with a rather disjointed picture of the relevant facts and events surrounding the FMV Loan.

Although Plaintiff subsequently filed a supplemental consolidated statement of material facts that purports to relate to all summary judgment motions and cross-motions filed by the parties between February and April, 2009, see Pl.'s [199] Stmt. of Mat. Facts, this statement is similarly unhelpful. Not only was it filed in violation of this Court's orders and the local rules of this Court, but it also adds little to the factual statements already contained in her motions for partial summary judgment. First, the consolidated statement, which was filed in conjunction with Plaintiff's replies and submitted after principal briefing on her motions had been completed, does not comport with this Court's local rules. As set forth in Local Civil Rule 7(h), [e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement.

An opposition to such a motion shall be accompanied by a separate and concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.

LCvR 7(h). Quite clearly, the rule does not permit a party to file an additional statement of material facts after the principal briefing on a party's motion for summary judgment has been completed and an opposition has already been filed. Such a filing not only contradicts the plain language of this rule, but also violates the principal intent behind the requirements of LCvR 7(h) to ensure that all parties are aware of and work from the same set of material facts in discussing and responding to the merits of the relevant motion(s) for summary judgment. Moreover, the Court repeatedly advised the parties that they are required to "comply fully with Local Civil LCvR 7(h)"and that it "may strike pleadings not in conformity with these rules." See, e.g., 1/30/09 Scheduling and Procedures Order, Docket No. [155] at 2 (emphasis in original).

Second, the supplemental statement does not shed any additional light on the facts relevant to Plaintiff's pending motions for partial summary judgment. The Court has reviewed the statement in its entirety and finds that it largely repeats the factual assertions already included in Plaintiff's individual statements. Moreover, to the extent the statement actually includes additional facts, such information is not particularly helpful or relevant to the Court's consideration of the pending motions and does not resolve any of the factual disputes highlighted below. Accordingly, the Court shall disregard Plaintiff's [199] Statement of Material Facts in ruling on the pending cross-motions. The Court is therefore left with only the statements of material fact filed with respect to each individual motion for partial summary judgment now pending before the Court. Given that these statements are narrowly tailored to each individual motion, the Court shall address the relevant facts as set forth in those statements below in discussing and ruling upon the parties' specific motions.

B. Procedural Background

Plaintiff filed her Fourth Amended Complaint in the above-captioned civil action on October 7, 2008. See Fourth Am. Compl., Docket No. [120]. Plaintiff sets forth 38 causes of action against the Defendants in this matter, 25 of which relate to the FMV Defendants. See generally id. Discovery in this case is now closed, and the parties have each filed a series of dispositive motions on many of Plaintiff's allegations in her Fourth Amended Complaint, as well as on the various counterclaims asserted by the Defendants in this action. For clarity's sake, the Court, as discussed above, addresses herein only those motions for partial summary judgment filed by Plaintiff with respect to allegations in her Fourth Amended Complaint relating to the second loan-i.e., the loan extended by FMVILA with the assistance of Duncan, Bennett, and Brickshire-and the FMV Defendants' related cross-motions for partial summary. All other pending dispositive motions shall be addressed by separate order.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and admissions on file, 'designate' specific facts showing that there is a genuine issue for trial." Id. at 324 (internal citations omitted).

Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original).

III. DISCUSSION

As explained above, Plaintiff, in filing the instant motions for partial summary judgment, has continued to pursue a strategy of piecemeal litigation in this case. Although such an approach may, in certain circumstances, be useful, the Court finds that the approach has not been successful in the case at hand-at least as concerns Plaintiff's motions for partial summary judgment. Plaintiff's case against the FMV Defendants rests on a single allegation: that the FMV Loan was intended to be, or should properly be construed as, a personal mortgage loan-not a commercial loan. Plaintiff's attempts to parse her case against the FMV Defendants into several discrete questions that may be resolved independently of one another has therefore proven to be largely unsuccessful. Most, if not all, of the issues raised by Plaintiff in her motions for partial summary judgment are intertwined with and substantively related to this ultimate question.

As the parties appear to agree, the relevant documents relating to the FMV Loan, when taken at face value, purport to characterize the loan as a $250,000 commercial loan extended by FMVILA to 1220 23rd Street, LLC (hereinafter, "LLC"), a limited liability corporation that the FMV Defendants assisted Plaintiff in creating and of which Plaintiff is the sole shareholder. Plaintiff nonetheless contends that the loan is, or should properly be construed as, a personal residential loan, based upon two alternative theories: (1) Plaintiff claims that the FMV Defendants offered her a personal mortgage loan, not a commercial loan, and that she signed only documents related to a residential loan; thus, although the FMV Loan documents on their face purportedly describe the FMV Loan as commercial in nature, such documents were forged and the entire transaction is fraudulent, Pl.'s Fourth Am. Compl. ¶¶ 89-91; (2) alternatively, Plaintiff alleges that, even assuming she did in fact sign the relevant loan documents purporting to describe the FMV Loan as commercial in nature, the loan is nonetheless unlawful as it is an illegal consumer residential loan impermissibly disguised as a commercial loan in order to avoid fair lending laws and disclosure requirements, id. ¶ 92.

Not unsurprisingly, the FMV Defendants deny Plaintiff's allegations and assert that the FMV Loan is a valid commercial loan extended to Plaintiff's LLC. See id. ΒΆΒΆ 94-96. According to the FMV Defendants, they assisted Plaintiff, at her request, in establishing the LLC. Title to the Condo was then transferred from Plaintiff to the LLC, and FMVILA extended a ...


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