Virginia Poindexter v. Mercedes-Benz Credit

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1858
VIRGINIA M. POINDEXTER,
Plaintiff - Appellant,
v.
MERCEDES-BENZ CREDIT CORPORATION, a/k/a Mercedes-Benz
Financial,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cv-01200-CMH-TCB)
Argued: May 12, 2015 Decided: July 7, 2015
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Judge Wynn joined.
Joanna Lee Faust, CAMERON MCEVOY, PLLC, Fairfax, Virginia, for
Appellant. Frank Joseph Mastro, SCHLOSSBERG & MASTRO,
Hagerstown, Maryland, for Appellee.
AGEE, Circuit Judge:
Virginia M. Poindexter appeals the district court’s grant
of summary judgment to Mercedes-Benz Credit Corporation (“MBCC”)
on her claims arising from MBCC’s failure to timely release a
lien placed on her residence after she satisfied her underlying
debt obligation. For the reasons set forth below, we affirm the
district court’s judgment.
I.
In April 2001, Poindexter purchased an Audi sedan from HBL,
Inc., an automobile dealer in northern Virginia. She originally
entered into a retail installment contract with HBL, but HBL
then assigned the contract to MBCC.
Soon after the assignment, MBCC offered Poindexter the
opportunity to participate in its Home Owner’s Choice program.
Under that program, Poindexter would grant MBCC a lien against
her Potomac Falls residence by a deed of trust as security for
the outstanding automobile loan. MBCC marketed the program as a
way for borrowers to make the interest paid on the loan
deductible for federal tax purposes. Unless the loan was
structured as a mortgage loan, this interest would not be
deductible.
Poindexter voluntarily chose to participate in the program.
In so doing, she signed a Servicing Disclosure Statement
2
acknowledging that the “mortgage loan” would be covered by the
federal Real Estate Settlement Procedures Act (“RESPA”), with
MBCC acting as “servicer.” (J.A. 96-97.) Consistent with this
arrangement, Poindexter executed a Deed of Trust in favor of
MBCC, which was properly recorded in the land records of the
Loudoun County, Virginia Circuit Court. The Deed of Trust
contained a covenant in which MBCC promised to release the lien
“[u]pon payment of all sums secured by [it].” (J.A. 10.)
In the spring of 2004, Poindexter traded in her Audi as
part of a transaction with HBL to lease a Mercedes-Benz sedan.
Her obligation to make further payments related to the Audi
ended at that time. For reasons not fully explained in the
record, however, MBCC did not record a certificate of
satisfaction releasing the Deed of Trust.
Poindexter discovered that the unreleased Deed of Trust
remained a lien against her residence in May 2013, when she and
her husband attempted to refinance their existing mortgage.
Almost immediately, Poindexter’s husband and her attorney
contacted MBCC on her behalf to demand that MBCC file a
certificate of satisfaction to release the lien. 1 Although MBCC
remained in discussions with Poindexter and never refused to
1By 2013, MBCC had been part of several mergers and its
corporate successor was TD Auto Finance LLC. For ease of
reference, however, the opinion will refer to these parties
collectively as “MBCC.”
3
record a certificate of satisfaction, it also did not timely
fulfill Poindexter’s demand. The lender Poindexter had
approached to refinance her home denied her application.
Soon thereafter, in September 2013, Poindexter filed a
complaint against MBCC in the United States District Court for
the Eastern District of Virginia. The Complaint alleged six
causes of action: (1) breach of contract; (2) slander of title;
(3) violation of RESPA; (4) violation of the Virginia Consumer
Protection Act (“VCPA”); (5) violation of Virginia Code § 55-
66.3; and (6) declaratory judgment. She sought to have a
certificate of satisfaction recorded and claimed $95,000 in
damages, as she alleged that MBCC’s actions had, among other
things, prevented her from securing a better interest rate
during her mortgage refinancing.
Several weeks later, MBCC recorded a certificate of
satisfaction that released the lien of the Deed of Trust against
Poindexter’s residence. MBCC then moved for summary judgment on
all of the claims, arguing they were time-barred. Furthermore,
MBCC contended that Poindexter had, at least as to some of her
claims, failed to demonstrate facts that would support all of
their elements.
As discussed in greater detail in context below, the
district court granted summary judgment to MBCC as to all
claims, often providing multiple grounds for doing so.
4
Poindexter noted a timely appeal, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court. Greater
Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City of
Balt., 721 F.3d 264, 283 (4th Cir. 2013) (en banc). Summary
judgment is appropriate if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In addition to
construing the evidence in the light most favorable to
Poindexter, the non-movant, we also draw all justifiable
inferences in her favor. Greater Balt. Ctr. for Pregnancy
Concerns, Inc., 721 F.3d at 283.
III.
We now address each of the claims raised by Poindexter in
turn. 2
2“[W]here a federal court addresses state law claims under
its pendent jurisdiction,” the court must “apply state law . . .
to those issues.” In re Merritt Dredging Co., 839 F.2d 203, 205
(4th Cir. 1988). Thus, we look to Virginia law to decide
Poindexter’s Virginia-law-based claims.
5
A. Breach of Contract
In analyzing Poindexter’s central cause of action for
breach of contract, the district court noted that her claim
accrued under Va. Code § 8.01-230 in 2004, when the debt was
satisfied, but MBCC failed to record the certificate of
satisfaction. The district court thus concluded that
Poindexter’s claim, which was not filed until 2013, was untimely
under any of the possible statutes of limitation, a point
Poindexter concedes on appeal. 3
Still, Poindexter contends, as she did below, that MBCC
should be equitably estopped from pleading that the statute of
limitations bars her claim. She argues that she should not be
“held at fault for not realizing that MBCC had failed to release
the lien” because MBCC had the duty to fulfill its contractual
obligations under the Deed of Trust. (Opening Br. 19.) This
amounts to no more than arguing that she is entitled to
equitable estoppel because MBCC breached its contractual
obligations. But Poindexter further posits that she was
3 The district court did not specifically identify which
Virginia limitations period would apply. MBCC contends the
general two-year limitations period in Va. Code § 8.01-248
governs because the parties’ contract does not satisfy the
various requirements for any of the lengthier periods set forth
for personal actions based on contracts in § 8.01-246. This
issue does not ultimately matter, however, given Poindexter’s
concession that her claim does not satisfy any possibly
applicable limitations period.
6
entitled to assume that MBCC had timely recorded a certificate
of satisfaction, particularly in light of her 2004 and 2008
dealings with MBCC, which led her to believe that it had done
so.
Although the district court did not directly address
Poindexter’s argument, she cannot successfully invoke equitable
estoppel in this case. Under Virginia law, a party seeking to
invoke equitable estoppel must prove “by clear, precise, and
unequivocal evidence” that:
(1) A material fact was falsely represented or
concealed; (2) The representation or concealment was
made with knowledge of the facts; (3) The party to
whom the representation was made was ignorant of the
truth of the matter; (4) The representation as made
with the intention that the other party should act
upon it; (5) The other party was induced to act upon
it; and (6) The party claiming estoppel was misled to
his injury.
Boykins Narrow Fabrics Corp. v. Weldon Roofing & Sheet Metal,
Inc., 266 S.E.2d 887, 890 (Va. 1980). Moreover, “‘[i]t is
essential to the application of the principles of equitable
estoppel, that the party claiming to have been influenced by the
conduct or declarations of another to his injury, was not only
ignorant of the true state of facts, but had no convenient and
available means of acquiring such information.’” Id. (quoting
Lindsay v. James, 51 S.E.2d 326, 332 (Va. 1949)) (internal
omission omitted).
7
The record does not contain evidence that Poindexter lacked
a “convenient and available means of acquiring” the actual
information about the status of the MBCC lien against her house.
Although Poindexter claims that she should not have been
required to go to the Loudoun County courthouse to check whether
MBCC had filed a certificate of satisfaction, she also admits
that nothing prevented her from doing so. 4 Indeed, she was not
required to go to the courthouse to obtain a copy of the record
at all. 5 Moreover, the record lacks any “clear, precise, and
unequivocal evidence” to create a genuine issue of material fact
as to whether MBCC made any false representation or tried to
conceal anything.
Poindexter first points to her 2004 “dealings with MBCC” as
a basis for her belief that a certificate of satisfaction was
filed. But all she cites is the fact that she traded in her
Audi for a new vehicle that year. Nothing in the record
indicates an additional or new statement in 2004 by MBCC that
had anything to do with the existing Deed of Trust or the filing
of a certificate of satisfaction.
4
The Loudoun County real estate records are public records,
open to inspection in person in the clerk’s office. See Va.
Code §§ 2.2-3704, 17.1-276(C).
5 Copies of Virginia land records can be obtained via mail
upon written request (for a nominal fee). In addition, records
can be accessed remotely via the internet (with a paid
subscription), see §§ 17.1-276, 17.1-294.
8
Similarly, Poindexter’s reliance on a March 18, 2008 MBCC
letter does not constitute a false representation or concealment
of a material fact. To be sure, the letter “acknowledges [her]
account has been paid in full and [that Mercedes-Benz had]
released [its] security interest in [her] vehicle.” (J.A. 130.)
But the 2008 letter lists a different account number, vehicle
identification number, and vehicle description that were not the
relevant numbers and description for the Audi. Thus, the letter
contained an accurate statement concerning the release of a
security interest in that other vehicle, and did not purport to
relay any information regarding the security interest for the
Audi. See Boykins Narrow Fabrics Corp., 266 S.E.2d at 890
(rejecting plaintiff’s equitable estoppel argument where “[t]he
record provide[d] no substantial support for [the plaintiff’s]
claim that [the defendant] lulled it into a false sense of
security through fraudulent acts” (emphasis added)).
Having failed to demonstrate a false representation or
concealment of any material fact related to the Deed of Trust or
certificate of satisfaction, Poindexter cannot successfully
invoke the principles of equitable estoppel. Accordingly, her
breach of contract action is subject to the ordinarily
applicable limitations period.
Nonetheless, Poindexter also contends the district court
granted summary judgment prematurely because she had moved for
9
discovery under Federal Rule of Civil Procedure 56(d) to obtain
all documents pertaining to her account that MBCC had in its
possession. The district court did not rule on this motion
before granting summary judgment. That said, Rule 56(d) only
“mandates that summary judgment be denied when the nonmovant
‘has not had the opportunity to discover information that is
essential to his opposition.’” Pisano v. Strach, 743 F.3d 927,
931 (4th Cir. 2014) (quoting Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006)). Poindexter has not
explained – nor did she show to the district court – how the
information in her MBCC account could possibly “create a genuine
issue of material fact sufficient for [her] to survive summary
judgment,” or otherwise affect the court’s analysis. Fed. R.
Civ. P. 56(d). For this reason, we find no error in the
district court’s implicit denial of her motion.
Accordingly, we hold that the district court appropriately
granted MBCC summary judgment on Poindexter’s breach of contract
claim.
B. Slander of Title
Poindexter next alleged MBCC committed slander of title
under Virginia law. The district court disagreed for two
reasons, first concluding that the record did not demonstrate
“that MBCC published false words with malice that disparaging
10
[Poindexter’s] title to her property,” and then observing that
the action was untimely since it had not been brought within the
applicable five-year limitations period. (J.A. 168.)
Poindexter argues the district court erred on both grounds.
She claims that MBCC’s failure to file a timely certificate of
satisfaction could demonstrate the requisite gross indifference,
recklessness, and wanton or willful disregard of her rights to
constitute slander of title. In addition, she maintains that
the limitations period did not begin until the tortious conduct
stopped, i.e., when MBCC recorded a certificate of satisfaction.
The district court properly granted summary judgment as to
this claim because, at a minimum, the record contains no
evidence that MBCC acted with malice. “To prove slander of
title, [Poindexter] must show that [MBCC] acted with malice or
in reckless disregard of the truth or falsity of the
statement[.]” Wright v. Castles, 349 S.E.2d 125, 129 (Va.
1986). The Supreme Court of Virginia has defined malice to be
“some sinister or corrupt motive such as hatred, revenge,
personal spite, ill will, or desire to injure the plaintiff[; or
a] communication . . . made with such gross indifference and
recklessness as to amount to a wanton or willful disregard of
the rights of the plaintiff.” Great Coastal Express, Inc. v.
Ellington, 334 S.E.2d 846, 851 n.3 (Va. 1984), overruled on
other grounds by Cashion v. Smith, 749 S.E.2d 526, 532 (Va.
11
2013). “Reckless disregard,” too, consists of something
substantially higher than ordinary negligence, akin to “willful”
and “wanton” behavior, “in disregard to another person’s rights
or . . . to the consequences, with the defendant aware, from his
knowledge of existing circumstances and conditions, that his
conduct probably would cause injury to another.” Giffin v.
Shively, 315 S.E.2d 210, 212-13 (Va. 1984); see also Richmond
Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 37-38 (Va. 1987).
Contrary to Poindexter’s contention, the record lacks any
evidence that would suggest MBCC acted with malice or reckless
disregard. To satisfy her burden, Poindexter points to nothing
in the record other than the “facts” that MBCC failed to file a
certificate of satisfaction in 2004 and failed to immediately
file one after she contacted it in 2013. But MBCC explained
that “it appear[ed] to have been simply an administrative
oversight” and that it did “not know why [MBCC] did not release
the Deed of Trust in 2004.” (J.A. 157.) At most, that evidence
suggests negligence, and Poindexter offers no evidence to
support another motive or reason for MBCC’s conduct. Although
MBCC failed to fulfill its obligation, the evidence does not
indicate any of the qualities necessary to create a question of
fact as to malice or reckless disregard under Virginia law.
Similarly, although MBCC could have (and should have) responded
more promptly in 2013, the record similarly does not indicate
12
malice or reckless disregard so much as corporate incompetence,
confusion, and other responses that fell short of immediately
filing a certificate of satisfaction. Once again, this conduct
does not rise to the level necessary for a reasonable jury to
conclude that MBCC acted with malice or reckless disregard under
Virginia law. As such, the district court appropriately granted
MBCC summary judgment, and we need not address the parties’
alternative arguments raised with respect to this claim.
C. RESPA
Under RESPA, “any servicer of a federally related mortgage
loan [who] receives a qualified written request from the
borrower (or an agent of the borrower) for information relating
to the servicing of such loan, [has a duty to] provide a written
response acknowledging receipt of the correspondence . . .
unless the action requested is taken within such period.” 12
U.S.C. § 2605(e)(1)(A). A “qualified written request” is a
“written correspondence, other than notice on a payment coupon
or other payment medium supplied by the service, that”
“includes, or otherwise enables the servicer to identify, the
name and account of the borrower” and “includes a statement of
the reasons for the belief of the borrower, to the extent
applicable, that the account is in error or provides sufficient
detail to the servicer regarding other information sought by the
13
borrower.” Id. § 2605(e)(1)(B). In relevant part, the then-
applicable version of the statute also provided that a servicer
had to “make appropriate corrections” or “provide the borrower
with a written explanation or clarification” within a set time
frame of receiving a qualified written request. Id. §
2605(e)(2). 6
In relevant part, then, to state a claim under §
2605(e)(1)(B), Poindexter had to send MBCC a “qualified written
request . . . for information relating to the servicing of such
loan[.]” The district court concluded Poindexter never made
such a request and thus did not trigger any obligations by MBCC
under RESPA. Poindexter contends the court erred because she –
through her husband and her attorney – made multiple requests
that satisfy the statutory requirements.
Several of the “requests” Poindexter relies upon do not
satisfy the definition of a “qualified written request.” To
state the obvious, oral communications are not “written.” Nor
6 The district court relied on an earlier version of the
statute that set the required time frame at sixty days.
Poindexter contends that this was incorrect because the statute
now requires a response within thirty days. For the reasons set
out by the Tenth Circuit in Berneike v. CitiMortgage, Inc., 708
F.3d 1141 (10th Cir. 2013), the sixty-day limit appears to
govern this dispute. Id. at 1145 n.3 (explaining when the
statutory changes, which were part of the Dodd-Frank Wall Street
Reform and Consumer Protection Act, became effective). However,
these statutory changes have no impact on the district court’s
analysis or ours given that our focus is on Poindexter’s failure
to trigger a duty under RESPA in the first instance.
14
would a combination of oral communications alongside a faxed
copy of the Deed of Trust constitute a “qualified written
request,” since that statutory term requires “written
correspondence” that “includes a statement of the reasons for
the belief of the borrower . . . that the account is in error or
provides sufficient detail to the servicer regarding other
information sought by the borrower.” 12 U.S.C. § 2605(e)(1)(B)
(emphasis added). The July 2013 letter from Poindexter’s
attorney to MBCC references a different account number, VIN, and
vehicle other than the Audi for which the Deed of Trust was
recorded. Thus, that letter also does not satisfy §
2605(e)(1)(B)’s requirements: a “qualified written request” must
identify the “account of the borrower” that is disputed.
Regardless, all of the “requests” Poindexter cites suffer
from a more fundamental omission. RESPA triggers a duty only
upon receipt of a “qualified written request” that “relat[es] to
the servicing of [a RESPA-governed] loan.” Id. § 2605(e)(1)(A).
Section 2605(i)(3) defines “servicing” to mean “receiving any
scheduled periodic payments from a borrower pursuant to the
terms of any loan, including amounts for escrow accounts . . . ,
and making the payments of principal and interest and such other
payments.”
Although we have not previously opined on the parameters of
this component of § 2605(e), we find the Ninth Circuit’s
15
decision in Medrano v. Flagstar Bank, FSB, 704 F.3d 661 (9th
Cir. 2012), instructive. In that case, the court observed that
the “relating to” component of § 2605(e) “ensures that the
statutory duty to respond does not arise with respect to all
inquiries or complaints from borrowers to servicers.” Id. at
666. Instead, § 2605(i)(3)’s definition of “servicing” “does
not include the transactions and circumstances surrounding a
loan’s origination—facts that would be relevant to a challenge
to the validity of an underlying debt or the terms of a loan
agreement,” which “precede the servicer’s role in receiving the
borrower’s payments and making payments to the borrower’s
creditors.” Id. at 666-67. For these reasons, the Ninth
Circuit held that § 2605 “distinguishes between letters that
relate to borrowers’ disputes regarding servicing, on the one
hand, and those regarding the borrower’s contractual
relationship with the lender, on the other.” Id. at 667.
Applying these general principles to the letters at issue in the
case, the Medrano court concluded that a letter challenging “the
terms of the loan and mortgage documents, premised on an
assertion that the existing documents [did] not accurately
reflect the true agreement” and “request[ing] modification of
those documents” did not “relate[] to servicing” and thus did
not trigger the servicer’s RESPA obligations under § 2605(e).
Id. at 667.
16
A request concerning a failure to file a certificate of
satisfaction upon satisfaction of the loan would not fall within
this statutory framework either. Here, MBCC acted as both the
originator and servicer of the loan at issue. Accordingly, MBCC
would be subject to § 2605’s rules governing servicers. 12
U.S.C. § 2605(i)(2) (defining “servicer” to mean “the person
responsible for servicing of a loan (including the person who
makes or holds a loan if such person also services the loan)”).
However, Poindexter’s request to MBCC does not relate to its
“servicing” of the loan, i.e., the receiving or making of loan
payments. See id. § 2605(i)(3). Instead, as was the case in
Medrano, Poindexter’s request relates back to “the terms of the
loan and mortgage documents,” specifically, an obligation that
arose after the loan was satisfied.
Filing the certificate of satisfaction is one of the most
elementary responsibilities of the originator (or his assignee)
of the loan, not the loan servicer. See Va. Code § 55-66.3
(repeatedly referring to the lien creditor’s responsibilities
vis-à-vis the certificate of satisfaction). What is more, the
servicer traditionally has no ability to file the certificate of
satisfaction as a part of servicing the loan. Instead, its role
is generally limited to collecting payments, directing them to
the principal and interest, providing basic information on
payoff amounts and periodic payments to the borrower,
17
facilitating loss mitigation, and informing the originator when
the obligation has been satisfied. See generally 12 U.S.C. §
2605. Poindexter’s inquiry to MBCC – relating to the filing of
a certificate of satisfaction – referenced an obligation MBCC
had under the Deed of Trust as the lien creditor. It did not
reference any aspect of MBCC’s “servicing” the loan.
In sum, because Poindexter’s communications did not
constitute a “qualified written request[] . . . relating to the
servicing of” her obligation with MBCC, they did not trigger any
obligations under § 2605(e). Accordingly, the district court
properly granted MBCC summary judgment on Poindexter’s RESPA
claim as well.
D. VCPA
Under the VCPA, a supplier in a consumer transaction cannot
use any “deception, fraud, false pretense, false promise, or
misrepresentation in connection with a consumer transaction.”
Va. Code § 59.1-200(14). But the VCPA does not apply to
“mortgage lenders,” which are defined as “any person who
directly or indirectly originates or makes mortgage loans.” Va.
Code § 59.1-199(D); id. § 6.2-1600.
The district court granted MBCC summary judgment on this
claim because “MBCC functioned as a mortgage lender, thus, no
VCPA can lie against [it] as a matter of law.” (J.A. 169.)
18
Alternatively, it observed that the applicable limitations
period (Va. Code § 59.1-204(A)) barred Poindexter’s claim.
Poindexter disputes both rulings, contending that MBCC is
not a “mortgage lender” under the relevant code sections because
it did not “originate[] or make[]” the loan to purchase the
Audi. Rather, the initial car loan was between Poindexter and
HDL; Poindexter began making payments on the loan; HDL assigned
the loan to MBCC; and while MBCC obtained additional security
for the loan in the form of the Deed of Trust, that process did
not “magically transf[orm] the original loan from a vehicle loan
to a mortgage loan.” (Opening Br. 10.) Poindexter also asserts
that a reasonable jury could conclude that she timely filed her
action since she exercised due diligence upon learning of MBCC’s
misrepresentation that the lien would be released upon
satisfying her obligation.
We disagree. Poindexter misreads the VCPA’s exemption to
require MBCC to be the originator of the underlying obligation.
To the contrary, the statutory definition of a “mortgage lender”
includes “any person who directly or indirectly originates or
makes a mortgage loan.” See Va. Code § 6.2-1600. Although the
vehicle loan originated with HBL and then was transferred to
MBCC, MBCC and Poindexter entered into a “modification” of the
vehicle-loan agreement, which converted the vehicle loan into a
“mortgage loan” with the lien on Poindexter’s real estate.
19
(J.A. 96, 142.) MBCC thus “directly or indirectly . . .
originat[ed] or ma[d]e” a “mortgage loan” for purposes of the
VCPA exemption.
Poindexter also failed to proffer evidence that her
arrangement with MBCC did not satisfy the VCPA definition of a
“mortgage loan.” Certainly, the terms used by the parties
demonstrate their intent that the arrangement be considered a
mortgage loan. That was the entire purpose of Poindexter’s
voluntary application to participate in MBCC’s Home Owner’s
Choice program. Based on the record before us, it appears that
the loan was “made to an individual [Poindexter], the proceeds
of which [were] to be used primarily for personal . . . purposes
[purchasing the Audi], which loan [was] secured by a . . . deed
of trust.” § 6.2-1600. For years, Poindexter benefited through
tax deductions from having the loan classified as a “mortgage
loan” as a result of her specific agreement with MBCC (not HBL),
and she cannot now evade its consequences.
The district court thus did not err in holding that her
claim failed as a matter of law or in granting MBCC summary
judgment. In light of this conclusion, we need not address
whether Poindexter’s claim is also barred by the statute of
limtiations.
20
E. Va. Code § 55-66.3
Lastly, Poindexter argues that MBCC violated Virginia Code
§ 55-66.3, which requires secured real estate creditors to file
certificates of satisfaction upon payment or satisfaction of the
underlying obligation. She sought statutory relief for this
violation under § 55-66.3(A)(1), which states that if the
certificate of satisfaction has not been filed “within 90 days
after payment, . . . the lien creditor shall forfeit $ 500 to
the lien obligor. . . . Following the 90-day period, if the
amount forfeited is not paid within 10 business days after
written demand for payment is sent to the lien creditor . . . ,
the lien creditor shall pay any court costs and reasonable
attorney’s fees incurred by the obligor in collecting the
forfeiture.”
The district court concluded that because Poindexter filed
her complaint more than two years after the claim accrued, this
claim was time-barred. See Va. Code § 8.01-248 (setting a two-
year limitations period for “[e]very personal action . . . for
which no limitation is otherwise prescribed”).
Poindexter contends the district court misread the statute
because a claim cannot arise until after a demand for
satisfaction has been made and the 90- and 10-day periods have
passed. Under Poindexter’s reading of the statute, her claim
21
was timely because it was filed within two years of when she
demanded that MBCC record a certificate of satisfaction.
We disagree with Poindexter’s interpretation of § 55-
66.3(A)(1). The statute plainly provides that the $500
forfeiture right arises by operation of law when a creditor
fails to file a certificate of satisfaction “within 90 days
after payment.” Poindexter’s cause of action to collect the
forfeiture thus arose on the ninety-first day after payment.
Because Poindexter satisfied her obligation on the Audi in 2004,
a claim filed in 2013 falls well outside the two-year
limitations period.
The statutory language about a written demand for payment
of the forfeiture does not alter this analysis. That language
does not refer to demanding that a lender file a certificate of
satisfaction, but refers to a demand to pay the $500 forfeiture.
Moreover, it does not affect when an obligor can collect the
$500 forfeiture for failure to timely file a certificate of
satisfaction, but instead refers to when an additional sum can
also be collected for failure to pay the forfeiture.
Consequently, the district court properly held that Poindexter’s
claim was untimely. 7
7
As the statute of limitations bars Poindexter’s statutory
forfeiture claim, there is no basis upon which Poindexter can
(Continued)
22
IV.
For these reasons, we affirm the district court’s judgment
in favor of MBCC. 8 Nonetheless, we note the substandard nature
of MBCC’s conduct in releasing the lien on Poindexter’s home.
While the various statutory barriers cited negate Poindexter’s
claims, had she acted diligently she may have had viable claims
at least as to breach of contract and Va. Code § 55-66.3(B).
MBCC would be well served to review its business practices to
forestall such claims in future cases.
AFFIRMED
claim attorney’s fees or costs, as she has no forfeiture right
to enforce.
8 Poindexter’s opening brief only refers in passing to the
district court’s denial of her declaratory judgment claim. The
district court concluded it was moot given that it related
solely to MBCC needing to file the certificate of satisfaction,
an act MBCC fulfilled before the court considered the case. In
light of Poindexter’s failure to brief any specific error
respecting this claim, we consider any challenge waived. See
Fed. R. App. P. 28(a); Wahi v. Charleston Area Med. Ctr., Inc.,
562 F.3d 599, 607 (4th Cir. 2009) (concluding an appellant’s
“fail[ure] to raise any argument to support [a broad] claim . .
. failed to comply with the specific dictates of Rule
28(a)(9)(A)” and thus were waived).
23