Marks v. Cook , 347 F. App'x 915 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1053
LOUIS A. MARKS, JR.; BRENDA JOYCE MARKS,
Plaintiffs - Appellants,
v.
DEBORAH S. COOK; GREGORY L. COOK; WACHOVIA BANK, N.A.; HOMEQ
SERVICING CORPORATION; SAMUEL I. WHITE, PC; JASON HAMLIN,
Esquire; EZ-VEST REALTY, INCORPORATED; GARY A. ZAYAKOSKY,
individually and in his capacity as managing broker of
EZ-Vest Realty, Incorporated; BRUCE EDWARD GORDON,
Defendants – Appellees,
and
PROFESSIONAL FORECLOSURE CORPORATION OF VIRGINIA, a/k/a
Shapiro and Burson, LLP; ROBINHOOD ENTERPRISES,
Defendants.
No. 09-1056
LOUIS A. MARKS, JR.; BRENDA JOYCE MARKS,
Plaintiffs - Appellants,
v.
DEBORAH S. COOK; GREGORY L. COOK; WACHOVIA BANK, N.A.; HOMEQ
SERVICING CORPORATION; SAMUEL I. WHITE, PC; JASON HAMLIN,
Esquire; EZ-VEST REALTY, INCORPORATED; GARY A. ZAYAKOSKY,
individually and in his capacity as managing broker of
EZ-Vest Realty, Incorporated; BRUCE EDWARD GORDON,
Defendants – Appellees,
and
PROFESSIONAL FORECLOSURE CORPORATION OF VIRGINIA, a/k/a
Shapiro and Burson, LLP; ROBINHOOD ENTERPRISES,
Defendants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:06-cv-00150-RAJ-FBS)
Submitted: September 10, 2009 Decided: October 16, 2009
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis A. Marks, Jr., Brenda Joyce Marks, Appellants Pro Se.
James Harrell Shoemaker, Jr., PATTEN, WORNOM, HATTEN &
DIAMONSTEIN, LC, Newport News, Virginia; Brent Lee VanNorman,
HUNTON & WILLIAMS, LLP, Norfolk, Virginia; Ronald James Guillot,
Jr., SAMUEL I. WHITE, PC, Virginia Beach, Virginia; Robert John
Haddad, Charles B. Lustig, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD &
MORECOCK, PC, Virginia Beach, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Louis and Brenda Marks appeal from the district
court’s orders granting summary judgment to Defendants in the
Marks’ suit alleging statutory and tort violations in connection
with a foreclosure on their home. The Marks also challenge
several preliminary orders by the district court. Finding no
error, we affirm.
I.
The Marks first assert that the district court judge
erred in denying their motion for recusal. The Marks asserted
that the judge could not be unbiased because he presided over
Brenda Marks’ criminal proceeding. In general, alleged bias and
prejudice are not disqualifying unless they stem from an
extrajudicial source. See Liteky v. United States, 510 U.S.
540, 554-55 (1994). The Marks fail to show any extrajudicial
source and, in any event, fail to show that the district court
was biased. Accordingly, the motion was properly denied.
II.
The Marks’ counsel moved in district court to withdraw
based upon a conflict of interest with a firm he was joining.
The Marks did not respond, and the court granted the motion.
The Marks then filed a motion to vacate the order granting
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withdrawal, asserting that counsel had informed them that the
motion to withdraw was made in order to protect his future firm
but would not be granted. The Marks contended that Brenda
Marks’ incarceration made it difficult to interview and work
with a new attorney and that they had already paid a flat fee
for their prior attorney. The district court denied the motion,
and the Marks challenge that denial on appeal.
The motion to withdraw was unopposed. Moreover, the
Marks did not support their motion to vacate with a statement
from counsel, so their assertions regarding his intent are
unsupported. Finally, as there is no constitutional right to
counsel in civil cases, the Marks’ allegations that finding a
new attorney was difficult does not call into question the
correctness of the grant of the motion to withdraw. See
Jones v. Phipps, 39 F.3d 158, 163-64 (7th Cir. 1994) (holding
that a jailed litigant ought to be treated neither worse, nor
better, than any other party when it comes to the conduct of
litigation unless some special circumstance of confinement
interferes with her ability to manage legal affairs).
Accordingly, the district court did not err in denying the
motion to vacate.
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III.
Prior to the grant of summary judgment, the Marks
sought an extension of time for discovery. The district court
denied the motion, finding that the motion was untimely made
after having five months to conduct discovery. On appeal, the
Marks assert that the district court’s calculation of time was
incorrect, and they only had a very limited amount of time for
discovery.
On May 2, 2008, the district court entered a
scheduling order stating that discovery should be completed by
Plaintiffs by August 5, 2008. On August 6, Brenda Marks filed a
motion for suspension of the calendar or an extension of time to
complete discovery, dated August 3. She asserted that her
incarceration limited her communication with her husband (and
co-plaintiff) and her access to documents. On September 8,
Brenda Marks filed a motion for modification of the scheduling
order, seeking a postponement of the trial date. On
September 16, the district court denied the motion to suspend
the calendar but granted the motion to modify the scheduling
order. The court ordered that the trial was continued until
December and that the final pretrial conference would be held on
December 1, 2008. Further, the court noted that the parties
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“shall resolve any outstanding discovery issues before the Final
Pretrial Conference.” *
Thus, the Marks had from May until December to conduct
discovery (over six months). While the Marks alleged that they
were having difficulties, during that time period they were able
to file the above-described motions, as well as several motions
for extension of time to respond to summary judgment motions,
numerous responses in opposition to the Defendants’ various
motions for summary judgment, and various miscellaneous motions.
The Marks failed below and on appeal to explain why, given the
other motions that were filed, they were unable to serve any
requests for discovery during this time period. In any event,
even if the time period was truncated, the Marks fail to allege
any specific prejudice from the failure to permit more time.
Accordingly, the district court did not err in denying the
Marks’ motion to extend.
IV.
The Marks assert that, instead of granting the various
motions for summary judgment, the district court should have
*
In their informal brief, the Marks state that this order
effectively ended any opportunity to conduct discovery.
However, the plain language of the order clearly permitted
further discovery until December 1.
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permitted them to amend their complaint. However, they did not
state in district court or on appeal the changes they sought to
make to their complaint. Thus, the court had no basis on which
to grant the motion.
V.
The Marks challenge the grant of summary judgment to
Wachovia on their claim under the Real Estate Settlement
Procedures Act (“RESPA”). The Marks assert that summary
judgment was improper given that they provided documentary
evidence that Wachovia sent rate increase notices to the wrong
address.
RESPA was enacted to protect homebuyers during the
settlement process. It is unsettled whether suits challenging
fees or actions post-settlement state a claim under RESPA. See
Cohen v. J.P. Morgan Chase, 608 F. Supp. 2d 330, 345-46 & n.10
(E.D.N.Y. 2009). However, even assuming that rate increase
notices sent to the wrong address would violate RESPA, the
Marks’ claim fails for several reasons. First, the “evidence”
submitted by the Marks was only a request to a bankruptcy judge
to confirm that the documents were sent to the wrong address.
There is no actual confirmation. Second, the Marks admit that
the notices were forwarded to them, and they allege no harm
suffered from any delay. Third, the Marks made no payments,
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late or otherwise, on the loan, so they have showed no reliance
or even consideration of any rate increases. Finally, Wachovia
did not initiate foreclosure against the Marks’ home. Thus, any
violation of RESPA resulted in no harm to the Marks.
Accordingly, the district court properly granted summary
judgment, even in light of the Marks’ “evidence”.
VI.
Finally, the Marks argue that the district court
improperly dismissed Professional Foreclosure as a Defendant
based on failure to serve. According to the Marks, they hired a
professional process server who served Professional Foreclosure
a couple of days after the court’s deadline. They claim that
any error was on the part of the process server.
However, the record does not contain, and the Marks do
not provide, any evidence supporting their claim. There is no
proof of service in the record, and the Marks did not move in
district court for reconsideration of the dismissal. On appeal,
the Marks present only their self-serving statement, and they
provide no reason for their failure to submit proof to the
district court. Accordingly, this claim has no merit.
Based on the foregoing, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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