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Victor Onyeoziri v. Jordan M. Spivok

May 24, 2012

VICTOR ONYEOZIRI, APPELLANT,
v.
JORDAN M. SPIVOK, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAR-4491-09) (Hon. Robert S. Tignor, Motions Judge) (Hon. Maurice A. Ross, Trial Judge)

The opinion of the court was delivered by: Ruiz, Associate Judge, Retired:

Argued November 10, 2010

Before OBERLY, Associate Judge, RUIZ, Associate Judge, Retired,*fn1 and NEBEKER, Senior Judge.

Victor Onyeoziri appeals from the Superior Court's grant of summary judgment in favor of appellees Jordan M. Spivok and Phillip J. Collins, who were trustees on a deed of trust for appellee Branch Banking & Trust Company

(BB&T). On appeal, Onyeoziri argues that the court erred by granting summary judgment to appellees on his statutory claims under the federal Truth in Lending Act and the District of Columbia Home Loan Protection Act, and on his common law claim of tortious interference with business relations. We affirm the grant of summary judgment on the statutory claims, but reverse and remand with respect to the tort claim.

I. Facts

In 2000, Onyeoziri purchased a house in the District of Columbia at 3108 35th Street, NE. He used it as his primary residence until some time in January 2001, when he began to rent it. In January 2006, in exchange for a "business/commercial" loan, Onyeoziri executed a promissory note to BB&T in the amount of $125,000, secured by a second deed of trust on the property.*fn2 When he executed the note, Onyeoziri alleged, he was unaware of the "balloon" nature of the transaction.*fn3 In January 2007, when the balloon payment became due, BB&T and Onyeoziri agreed to modify the note, extending the payment terms and thereby deferring the balloon payment due date for another year.*fn4 When the extended balloon payment fell due and Onyeoziri was unable to pay, the parties again agreed, in July 2008, to modify the note; Onyeoziri and BB&T executed a forbearance agreement, in which BB&T agreed not to foreclose on the property at that time in exchange for an assignment of Onyeoziri's life insurance policy. The forbearance agreement contained an exculpatory clause,*fn5 which provided that the loan "is not subject to the federal Consumer Credit Protection Act (15 U.S.C. § 1601 et seq.) nor any other federal or state disclosure or consumer protection laws." Onyeoziri did not make payment in accordance with the modified note and further efforts to resolve the outstanding obligation were unsuccessful. BB&T commenced default proceedings on the note by sending a notice to Onyeoziri of its intent to sell the property at a foreclosure auction on June 23, 2009.

On June 22, 2009, the day before the scheduled foreclosure sale, Onyeoziri filed in Superior Court a complaint for injunctive relief, a motion for a temporary restraining order, and a motion for a preliminary injunction to stop the foreclosure sale. At the hearing on the motion, Spivok told the court that on May 12 he had sent notice of the foreclosure sale to Onyeoziri by certified mail. Onyeoziri, however, testified that he never received the notice because he was traveling abroad, and first became aware of the foreclosure while reading a May 27 letter from Spivok he received on June 17, upon his return from Nigeria. Onyeoziri alleged in his complaint and testified in court that on June 2, while on a month's travel to Nigeria, he had entered into a contract to sell the property that served as collateral for the note. Onyeoziri presented a copy of the contract to sell the property, at a purchase price of $280,000 with a closing date of August 30, and a letter dated June 8 from Homestead Funding Corporation, licensed by the Virginia State Corporation Commission, prequalifying the buyer for a loan in the amount of $274,928. The trial court denied Onyeoziri's motion for a temporary restraining order, finding that there was no likelihood of irreparable harm because "any damage at issue here is monetary damage" for which Onyeoziri had "a remedy at law." The next day, June 23, the property was sold to BB&T, the sole bidder at the auction, for $59,000.

On July 1, 2009, Spivok moved under Rule 12 (b)(6) to dismiss Onyeoziri's complaint, arguing that the injunctive relief Onyeoziri sought was moot because the property had been sold, and that Onyeoziri had failed to join Collins and BB&T as defendants. Onyeoziri argued in opposition that any failure to join the parties could be cured by an amendment to his complaint, thus making dismissal unwarranted. The court denied Spivok's motion to dismiss.*fn6

On October 13, 2009, Onyeoziri filed an amended five-count complaint against Spivok, Collins, BB&T, and Metro Settlements, Inc.*fn7 Count One asserted a violation of the federal Truth in Lending Act (TILA), alleging that BB&T and Metro Settlements did not provide Onyeoziri with a TILA Statement or explain the "balloon note" to him, ultimately causing him to default on the note. Count Two alleged a violation of the District of Columbia Home Loan Protection Act (HLPA), alleging that the terms of the BB&T balloon note violated the statute. Count Three asserted a violation of the District of Columbia Mortgage Lender and Broker Act, alleging that BB&T improperly securitized the balloon note by taking Onyeoziri's life-insurance policy as collateral for a balloon payment period extension. Count Four alleged that Spivok and Collins lacked standing to sell Onyeoziri's property at auction, as substitute trustees, and, therefore, could not pass title to BB&T. Count Five asserted that BB&T, Spivok, and Collins interfered with Onyeoziri's business relations by refusing to allow Onyeoziri to close on his contract to sell the property to his prospective buyer. Onyeoziri requested damages of $280,000 (the price at which he had negotiated the sale of the property), in addition to attorney's fees and costs.

On November 20, 2009, appellees moved to dismiss the amended complaint or, alternatively, for summary judgment.*fn8 On December 18, 2009, Onyeoziri filed an opposition.*fn9 On December 31, 2009, the trial court issued a cursory order granting appellees' motion for summary judgment. Onyeoziri appeals the trial court's entry of summary judgment on Counts One, Two and Five; he does not appeal entry of summary judgment on Counts Three and Four.

II. Standard of Review

We review a grant of summary judgment de novo. See Molla v. Sanders, 981 A.2d 1197, 1199 (D.C. 2009). We, therefore, undertake an independent review of the record under the same standard applied by the trial court in its consideration of the summary judgment motion.*fn10 See Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983). Our role "is not to act as factfinder and to resolve factual issues," but rather to review the record to determine if there is "a genuine issue of material fact on which a jury could find for the non-moving party."

Id. at 814-15. The moving party has the burden of demonstrating that there is no genuine issue of material fact, after the evidence and all inferences from the evidence are drawn in favor of the non-moving party. See id. at 815. "We will affirm the entry of summary judgment if 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Id. at 814 (quoting Super. Ct. Civ. R. 56 (c)). If there are disputed ...


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