Bahaa O. Elfiky v. McLean Crest Homeowners Association, Inc. ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Beales, Chaney and Senior Judge Annunziata
BAHAA O. ELFIKY
MEMORANDUM OPINION*
v. Record No. 1699-22-4 PER CURIAM
JUNE 27, 2023
MCLEAN CREST HOMEOWNERS ASSOCIATION, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael F. Devine, Judge
(Bahaa Elfiky, on briefs), pro se.
(Nasim J. Saeidi; Whiteford, Taylor & Preston L.L.P., on brief), for
appellee.
Bahaa O. Elfiky, pro se, appeals the trial court’s judgment awarding attorney fees and costs
to McLean Crest Homeowners Association, Inc. (the association) and permitting the foreclosure of
his real property if he failed to satisfy his outstanding debts within 120 days. On appeal, Elfiky
argues that the trial court erred because foreclosure was not an authorized remedy under the
“statutory scheme” to satisfy an award of attorney fees and costs, especially considering that the
equity in his real property was insufficient to satisfy his debts. He also argues that the trial court
erred by awarding the association attorney fees given its “pattern of bad faith conduct” during
the litigation.
We are unable to review Elfiky’s claims because the record does not contain a transcript
or written statement of facts necessary to resolve Elfiky’s arguments. See Rule 5A:8.
Accordingly, the trial court’s judgment is affirmed. After examining the briefs and record in this
*
This opinion is not designated for publication. See Code § 17.1-413.
case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly
without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND
In June 2021, the association filed a complaint alleging, in part, that it had perfected three
memorandum liens against Elfiky’s real property to secure unpaid assessments. At that time, the
balance of the unpaid assessments totaled $6,182.40. The association also alleged that it was the
holder of a $12,588.31 money judgment against Elfiky, which had been recorded in the county’s
land records.1 The association asked the trial court to enforce its liens and judgment against the
property through foreclosure and award it attorney fees and costs.
On December 14, 2021, the trial court entered an order appointing a commissioner in
chancery to confirm Elfiky’s ownership of the subject property and determine whether there were
any delinquent taxes. The trial court also tasked the commissioner with determining the property’s
“rental value and fee simple value” and whether the “rents and profits” from the property over five
years could satisfy the liens. The commissioner conducted a hearing on March 3, 2022, and filed
his report with the trial court on April 11, 2022. The commissioner found that Elfiky was the record
title owner of the subject property and that real estate taxes were current as of the end of 2021. The
property’s fair market value was $1.05 million, and the value of the numerous liens and
encumbrances against the property exceeded $1.2 million. The property’s monthly rental income
would earn $252,000 over five years and, therefore, not satisfy the liens and encumbrances during
that time.
On April 20, 2022, the association moved the trial court to enter an order directing the sale
of the property and to appoint a special commissioner of sale. On May 13, 2022, Elfiky filed a
1
The complaint further alleged that numerous other liens encumbered the lot because of
money judgments against Elfiky.
-2-
motion that claimed he had paid the association’s memorandum liens “in full” and that there
remained only “a money judgement [sic] for legal fees [he] agree[d] to pay.” Elfiky’s motion also
claimed that the commissioner’s valuation of the property was incorrect because a “[r]ecent certified
appraisal” valued it at $750,000. Accordingly, he asked the trial court to deny the association’s
motion.
On May 20, 2022, the trial court entered an order setting an evidentiary hearing to resolve
the matter and, if appropriate, award attorney fees. Before the hearing, Elfiky filed a pleading
claiming that the association’s attorney had engaged in “inequitable conduct,” misrepresented facts
to the court, and “failed to correct a duplicative lien . . . on the [c]ommissioner’s [r]eport” so he
could “double dip” and increase his fees award. Reiterating his claim that he had satisfied the
association’s liens, Elfiky asked the trial court to deny the association’s request for attorney fees.
After the evidentiary hearing,2 the trial court entered an order awarding the association a
total of $28,197.82 in attorney fees and costs. The court further ordered that the association’s
pending foreclosure action would be stayed for 120 days, permitting Elfiky to satisfy those fees and
costs. Elfiky moved the court to reconsider its ruling, arguing that the association’s attorney’s
duplicative legal work, “bad faith conduct,” and misleading representations to the court foreclosed
an award of attorney fees. Elfiky also argued that a judicial foreclosure of his property was not
authorized because the debts underpinning the liens had been satisfied and the only remaining debts
were for attorney fees and costs. By order entered on October 6, 2022, the trial court denied
Elfiky’s motion to reconsider.
On appeal, Elfiky argues that the trial court erred by holding that “foreclosure was an
authorized remedy for an award of” attorney fees and costs under the “statutory scheme.” He
argues that he paid the liens in full, leaving only his debts for outstanding attorney fees and costs.
2
The record does not contain a transcript or written statement of facts from the hearing.
-3-
Elfiky suggests that the association improperly pursued a judicial foreclosure when the only
plausible remedy under the act was a “nonjudicial foreclosure sale.” Elfiky also argues that, during
the evidentiary hearing, he “presented evidence that” the commissioner’s valuation of his home was
inaccurate and that “his home lacks sufficient equity to satisfy such an award.” (Emphasis added).
Thus, he maintains that foreclosure would be punitive and “contrary to equitable principles.”
Finally, he contends the trial court erred by awarding the association attorney fees because the
association’s attorney “engaged in a pattern of bad faith and unnecessary legal work.”
ANALYSIS
“On appeal, we presume the judgment of the trial court is correct.” Bay v. Commonwealth,
60 Va. App. 520, 528 (2012). “The burden is upon the appellant to provide [the appellate court]
with a record which substantiates the claim of error.” Dixon v. Dixon, 71 Va. App. 709, 716 (2020)
(alteration in original) (quoting Robinson v. Robinson, 50 Va. App. 189, 197 (2007)). Without a
sufficient record, we cannot reach the asserted error. Id. A transcript of any proceeding or a
written statement of facts in lieu of a transcript becomes part of the record if filed in the trial
court clerk’s office within 60 days after entry of final judgment. Rule 5A:8(a) and (c). “When
the appellant fails to ensure that the record contains transcripts or a written statement of facts
necessary to permit resolution of appellate issues, any assignments of error affected by such
omission will not be considered.” Rule 5A:8(b)(4)(ii). See also Smith v. Commonwealth, 32
Va. App. 766, 772 (2000) (holding that “[t]his Court has no authority to make exceptions to the
filing requirements” for transcripts “set out in the Rules” (quoting Turner v. Commonwealth, 2
Va. App. 96, 99 (1986))).
Elfiky’s arguments on appeal focus on factual issues before the trial court during the
September 15, 2022 hearing and the evidence he allegedly presented during that hearing. The
record indicates that the trial court expressly scheduled that hearing to resolve whether Elfiky had
-4-
satisfied the underlying liens and, if appropriate, determine an attorney fees award. The record
before this Court, however, contains none of the evidence or argument presented during that
hearing. Nor does it contain any of the trial court’s factual findings or rationale for its judgment.
Instead, the order merely awards the association attorney fees and costs and postpones foreclosure
for 120 days to allow Elfiky an opportunity to satisfy the outstanding debts.
With no record of the evidence and arguments Elfiky made or the positions he took (or
possibly abandoned) at the September 15, 2022 hearing, we cannot know if his appellate argument
repudiates a position that he may have taken in the trial court, let alone whether the trial court ruled,
and erred, as he claims. See Nelson v. Commonwealth, 71 Va. App. 397, 403 (2020) (recognizing
that a party may not take inconsistent positions during the course of litigation). Thus, a transcript,
or a written statement of facts in lieu of a transcript, from the September 15, 2022 hearing is
indispensable to a determination of Elfiky’s arguments on appeal. Accordingly, his arguments to us
on appeal are waived. Rule 5A:8(b)(4)(ii).
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
-5-