Wood v. Morequity, Inc. , 331 F. App'x 243 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2088
CARRIE ELIZABETH PUGH WOOD,
Plaintiff - Appellant,
v.
MOREQUITY, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:07-cv-00064-nkm-bwc)
Submitted: April 28, 2009 Decided: May 22, 2009
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry W. McLaughlin, III, CENTRAL VIRGINIA LEGAL AID SOCIETY,
INC., Richmond, Virginia; King F. Tower, WILLIAMS MULLEN,
Richmond, Virginia, for Appellant. Robert S. Westermann, Thomas
N. Jamerson, HUNTON & WILLIAMS LLP, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carrie Elizabeth Pugh Wood (“Wood”) appeals the
district court’s adverse grant of summary judgment and dismissal
of her civil action in which she challenged a foreclosure sale
that resulted from a default on a secured mortgage loan held by
MorEquity, Inc. (“MorEquity”), and its denial of her Fed. R.
Civ. P. 59(e) motion for reconsideration. We have reviewed the
record and find no reversible error.
The material facts are not in dispute, are well known
to the parties, and will not be recounted here. This court
reviews a district court’s grant of summary judgment de novo,
construing the facts in the light most favorable to the
nonmoving party. Holland v. Washington Homes, Inc., 487 F.3d
208, 213 (4th Cir. 2007), cert. denied, 128 S. Ct. 955 (2008).
Summary judgment “should be rendered 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). “[T]here is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party. If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986) (citations omitted).
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As a preliminary matter, the district court properly
held that, under Virginia law, “substantial compliance [with Va.
Code Ann. § 55-59.3] is sufficient so long as the rights of the
parties are not affected in any material way.” See Va. Hous.
Dev. Auth. v. Fox Run Ltd. P’ship, 497 S.E.2d 747, 754 (Va.
1998) (citing Bailey v. Pioneer Fed. Sav. & Loan Ass’n, 172
S.E.2d 730, 734 (Va. 1970)). Accordingly, to prevail, Wood was
required to establish either that the advertisement of sale did
not substantially comply with the statutory requirements of
§ 55-59.3, or that she was materially prejudiced by any non-
compliance.
Wood claims that there were two street addresses
associated with the property at issue (“the Property”), and that
in failing to list both addresses in the newspaper advertisement
notifying the public of the sale of the Property, MorEquity did
not comply with the requirements of § 55-59.3. She reasons that
the failure to do so voided the forfeiture because if the
Property had been properly advertised as having two, rather than
one residence, the advertisement would have attracted additional
potential buyers, and the sale would have been consummated for
more than the forfeiture sale price paid by MorEquity, thus
establishing material prejudice.
The district court assumed, without deciding, that
Wood’s claim that there were two street addresses for the
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Property was sound and that the statutory language required
MorEquity to list both addresses. It then noted that
MorEquity’s advertisement of sale included a description of the
Property, the only address listed in the Deed of Trust, and a
reference to the Deed Book and page number where the Deed of
Trust could be found, and found that this information, without
more, constituted substantial statutory compliance. 1 The court
went on to note that MorEquity’s advertisement went further than
that upheld in Riley, in that the notice in this case contained
also: (1) a street address for the Property rather than a
mailing address; (2) the entirety of the only recorded legal
description of the Property, which implicitly referenced both
residences by stating that the Property includes the “tract of
land together with all buildings, improvements and
appurtenances;” (3) the Property’s tax map identification
number, under which Nelson County tax records indicate that
there are two residences on the Property; and (4) the address
and telephone number for a person who could be contacted for
additional information. Given that the advertisement of sale
here went so much further than that upheld as sufficient under
1
The district court considered Riley v. Robey, 122 F. Supp.
2d 684, 687 (W.D. Va. 2000), aff’d, 25 Fed. App’x 149 (4th Cir.
2002), in which the court, relying on Fox Run, found that a
notice for sale that did not include any street address
nonetheless satisfied the notice provision of § 55-59.3.
4
§ 55-59.3 in either the Fox Run or Riley cases, 2 we find no error
in the district court’s conclusion that the advertisement
relative to the Property substantially complied with § 55-59.3.
Nor do we find error in the district court’s determination that,
even assuming error in the advertisement, Wood failed to
demonstrate material prejudice, as she presented no evidence to
support her conclusion that the failure to include both
addresses in the sale notice prejudiced the sale against
obtaining the best price. 3
We review for abuse of discretion the denial of a Rule
59(e) motion to alter or amend judgment. See Pac. Ins. Co. v.
Am. Nat’l Fire Ins. Co., 148 F.3d 396, 402 (4th Cir. 1998).
Although Rule 59(e) does not itself provide a standard under
which a district court may grant a motion to alter or amend a
2
Wood attempts to distinguish Riley and Fox Run on the
ground that they did not involve material, substantial, or
prejudicial error. But Wood similarly fails to allege facts
supporting a finding of material, substantial, or prejudicial
error in the present case.
3
Although Wood presents the assessed tax record, a
declaration of the Nelson County commissioner of revenue, and
photographs of the dwellings on the property, we agree with the
district court that this evidence is insufficient to establish
material prejudice because it does not show that the inclusion
of the second residential address in the advertisement would
have generated higher bids on the property. Wood asserts that
Virginia law presumes material prejudice, but she fails to
support this contention with either statutory authority or
applicable case law.
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judgment, we previously have recognized that there are three
grounds for amending an earlier judgment: (1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice. Id. at 403.
As the majority of Wood’s arguments raised in her Rule
59(e) motion were merely a restatement of arguments she made on
summary judgment, the district court properly rejected such
claims. Id. Her remaining assertion, that she should have been
given the opportunity to present additional evidence of the
value of the Property at trial, was also properly dismissed by
the district court on the ground that a party opposing summary
judgment cannot rely on what the evidence at trial would
demonstrate, but rather on the evidence before the district
court at the time the summary judgment motion is considered.
Thus, we find no abuse of the district court’s discretion in its
denial of Wood’s motion for reconsideration.
Accordingly, we affirm the district court’s dismissal
of the complaint on summary judgment, as well as its order
denying Wood’s Rule 59(e) motion. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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