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David Khatib v. Alliance Bankshares Corp

March 1, 2012

DAVID KHATIB, PLAINTIFF,
v.
ALLIANCE BANKSHARES CORP., DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff David Khatib ("Khatib") and his spouse are owners of real property located at 4009 Hummer Road, Annandale, Virginia 22003. He brings this action on his own behalf and on behalf of an amorphous putative class against Defendant Alliance Bankshares Corporation ("Alliance Bankshares"), a Virginia bank holding company and the corporate parent of Alliance Bank Corporation ("Alliance Bank"), a Virginia commercial bank. On February 24, 2012, Khatib filed an [5] Emergency Motion for Temporary Restraining Order and Preliminary Injunction ("Motion for Preliminary Relief"), seeking an order enjoining non-party Alliance Bank from carrying out a foreclosure sale of the property that is the focus of this action, which has been scheduled for March 5, 2012, at 2:00 p.m. The motion has been briefed on an expedited basis and is now ripe for adjudication. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court concludes that Khatib has failed to meet his burden of demonstrating that there is a basis for this Court to exercise personal jurisdiction over Alliance Bankshares, the only named defendant in this case. Accordingly, his [5] Motion for Preliminary Relief shall be DENIED WITHOUT PREJUDICE.

I. THE PARTIES AND KEY PLAYERS

Khatib is a citizen of Virginia and, along with his spouse, is the owner and resident of the real property that is the focus of this action, a lot and home located at 4009 Hummer Road, Annandale, Virginia 22003. See Compl., ECF No. [1], at 3*fn1 & Ex. E (Deed of Trust dated May 20, 2010) at 1; Aff. of Pl. David Khatib in Supp. of His Mot. for TRO & Prelim. Inj. ("Khatib Aff."), ECF No. [5-4], ¶ 2; Decl. of George Cave ("Cave Decl."), ECF No. [7-1], ¶¶ 17-18.

Alliance Bankshares, the only defendant named in this action, is a bank holding company organized under Virginia law and headquartered in Chantilly, Virginia. See Cave Decl. ¶¶ 4, 8; Pl.'s Reply in Supp. of Mot. for TRO & Prelim. Inj. ("Pl.'s Reply"), ECF No. [11], Ex. A (Form 10-K dated Mar. 31, 2011) at 3, 9. It is the corporate parent of non-party Alliance Bank, a state-chartered commercial bank headquartered in Chantilly, Virginia and organized under Virginia law. See Cave Decl. ¶¶ 3-4, 8; Pl.'s Reply, Ex. A (Form 10-K dated Mar. 31, 2011) at 3. Although in a parent-subsidiary relationship, Alliance Bankshares and Alliance Bank are separate legal entities. See Pl.'s Reply, Ex. A (Form 10-K dated Mar. 31, 2011) at 10.

Alliance Bank provides banking services to businesses and consumers in the greater Washington, D.C. Metropolitan region, performing substantially all of its banking activities in Northern Virginia. See Cave Decl. ¶ 16; Pl.'s Reply, Ex. A (Form 10-K dated Mar. 31, 2011) at 3, 63. It has six full service banking facilities, all of them located in Virginia (specifically, in Annandale, Arlington, Fairfax, Manassas Park, Reston, and Vienna). See Pl.'s Reply, Ex. A (Form 10-K dated Mar. 31, 2011) at 3, 26.

Both Alliance Bankshares and Alliance Bank have always maintained their principal places of business in Virginia, where all substantive decisions, including financial transactions, are made. See Cave Decl. ¶¶ 7-8; Pl.'s Reply, Ex. A (Form 10-K dated Mar. 31, 2011) at 26. Neither entity has ever (i) maintained a place of business or office, (ii) operated any bank locations, branches, or ATMs, (iii) owned any property, or (iv) maintained a registered agent in the District of Columbia. See Cave Decl. ¶¶ 10-11, 13-14; Pl.'s Reply, Ex. A (Form 10-K dated Mar. 31, 2011) at 26.

II. FACTUAL BACKGROUND

In August 2007, Khatib and his spouse (together, the "Khatibs")*fn2 entered into an agreement with Seville Homes LLC ("Seville") for the purchase of a vacant piece of land and a future residence to be built on "Lot 2" in a subdivision within Fairfax County, Virginia. See Compl., Ex. B (New Home Sales Contract). Subsequently, Seville constructed a model home on "Lot 1" within the same subdivision, but left the subdivision otherwise undeveloped. See Pl.'s Mem. in Supp. of Mot. for TRO & Prelim. Inj. ("Pl.'s Verified Mem."), ECF No. [5-1], at 3.*fn3

Seville soon went out of business. See id. In March 2008, the Khatibs entered into an agreement with non-party Alliance Bank, as the apparent successor-in-interest to Seville, for the purchase of "Lot 1" and the model home built on that lot. See Compl., Ex. A (Sales Contract Addendum); Pl.'s Verified Mem. at 3-4. Even though Khatib maintains that he intended to purchase "Lot 2," he alleges that Alliance Bank "strong-armed" him into buying "Lot 1" by "threaten[ing]" him that if he did not sign the agreement, he would lose his deposit and his "family's living situation would be jeopardized." Pl.'s Verified Mem. at 2, 4. Nonetheless, Khatib contends that the relevant deed ultimately transferred ownership to him over not just "Lot 1," but also the surrounding land in the subdivision. See id. at 6.

According to Khatib, as part of the March 2008 transaction, Alliance Bank financed a residential mortgage loan in the total amount of $1.5 million, structured in such a way as to require him to make substantial monthly payments and a five-year balloon payment. See id. at 4-5. Khatib claims that, because the loan was secured against not just "Lot 1" but also the surrounding properties, the total amount of the loan failed to reflect the value of the land that he actually intended to purchase from Seville. See id. at 5-6. In addition, Khatib asserts that Alliance Bank failed to request any meaningful financial information from him and to make disclosures required by law in the course of preparing the loan documents. See id. at 4-5.

In this action, Khatib further contends that Alliance Bank used him as a "straw purchaser" to buy the property surrounding "Lot 1." See id. at 2. In his view of things, Alliance Bank was left with a large tract of undeveloped land after it assumed ownership from Seville and, in an attempt to recoup its investment, it sought to subdivide the property and sell the remaining lots to third parties. See id. Khatib alleges that he was used as a "straw purchaser" and that, once local authorities approved the plan to subdivide the property, Alliance Bank exercised a clause in the deed of trust requiring him to reconvey all of the land surrounding "Lot 1" at a nominal price. See id. at 2, 6-7; Compl., Ex. D (Development Agreement). In October 2008, Khatib conveyed the surrounding land to Alliance Bank. Pl.'s Verified Mem. at 7.

In May 2010, the Khatibs and Alliance Bank entered into an agreement to refinance the residential mortgage loan, structured in such a way as to require substantial monthly payments and a five-year balloon payment. See Compl., Ex. E. Khatib alleges that Alliance Bank again prepared the loan documents without requesting meaningful financial information from him and without conducting an appropriate appraisal of the value of the property. See Pl.'s Verified Mem. at 7. He claims that the refinanced loan included terms that he could not afford, including a five-year balloon payment. See id. at 7-8.

Khatib concedes that he is now in default on the loan. See id. at 8. Today, he is $51,518.42 in arrears. See Cave Decl. ¶ 23. On April 21, 2011, Alliance Bank notified the Khatibs that they were in default, accelerated the amount due, and demanded $355,008.38 in payment by no later than May 2, 2011. See Pl.'s Verified Mem. at 8.

III. PROCEDURAL HISTORY

Khatib commenced this action on his own behalf and on behalf of an amorphous class of minority borrowers on January 13, 2012, naming Alliance Bankshares as the sole defendant. Counts I and II of the Complaint, asserted on behalf of Khatib and the class, allege that Alliance Bankshares' sub-prime lending practices violate the Fair Housing Act (the "FHA") and the Equal Credit Opportunity Act ("ECOA"). See Compl. ¶¶ 62-86. Counts III and IV assert claims of common law fraud and negligence on behalf of Khatib alone, turning on allegations relating to the real estate transactions and mortgage loan agreements outlined above. See supra Part II. In the month-and-a-half that this action has been pending, Khatib has not sought certification of any class or sub-class. Accordingly, the case comes to the Court at this early juncture as a single-plaintiff action.

On February 17, 2012, non-party Alliance Bank notified the Khatibs that it intended to foreclose on the property that is the focus of this action and to sell the property at a public auction at the Fairfax County Circuit Court in Fairfax, Virginia on March 5, 2012, at 2:00 p.m. See Order (Feb. 24, 2012), ECF No. [6], Ex. A (Ltr. from N. O'Reilly, Esq. dated Feb. 17, 2012). The anticipated foreclosure sale will take the form of a non-judicial trustee sale, implemented by way of a power of sale included within the deed of trust and governed by Virginia law. See Compl., Ex. E (Deed of Trust dated May 20, 2010) ¶ 17.

On February 24, 2012, Khatib filed his [5] Motion for Preliminary Relief, seeking an order from this Court "enjoining Alliance Bank from carrying out the foreclosure sale of [his] property." Pl.'s Verified Mem. at 1. In his motion, Khatib tenders a more narrow argument in favor of preliminary relief than one might expect from the scope of his Complaint. Specifically, Khatib argues that he is entitled to preliminary relief because (i) he is likely to succeed on the merits of his negligence claim (Count IV), (ii) he would suffer irreparable harm absent injunctive relief, (iii) the balance of the equities tips in his favor, and (iv) an injunction would be in the public interest. See id. at 10-16. In terms of the likelihood of success on the merits of his negligence claim, Khatib contends that he has made a sufficient showing that Alliance Bankshares failed to process his loan application in accordance with a common law duty of care or to live up to its purported statutory duties to verify his ability to repay the residential mortgage loan and to structure a loan without an impermissible balloon payment. See id. at 10-13.

Conspicuously absent from Khatib's motion is any attempt to show that there is a likelihood that he will succeed on his claims under the federal FHA and ECOA (Counts I and II), either individually or on behalf of a class, or on his individual common law fraud claim (Count III). In other words, Khatib's Motion for Preliminary Relief frames this case, at least at this early juncture, as a single-plaintiff action focusing on Khatib's claim for common law negligence (Count IV).

When he first filed his Motion for Preliminary Relief, Khatib claimed that the foreclosure sale he sought to prevent was scheduled for February 28, 2012. See id. at 1. However, after receiving the motion, the Court's inquiries revealed that the sale was in actuality scheduled for March 5, 2012, at 2:00 p.m. See Order (Feb. 24, 2012), Ex. A (Notice of ...


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