Johnson v. Bank of Am., N.A.

Citation Codes

Equivalent Citations

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Docket Number

CIVIL ACTION NO. 4:12cv105

Motions

Motion to dismiss : Granted Plaintiff

Judges

Raymond Alvin Jackson

Acts

Banks And Banking — Emergency Economic Stabilization — Troubled Assets Relief Program — Foreclosure Mitigation Efforts

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Smart Summary

Factual and Procedural Background

Plaintiff Renee Y. Johnson owned a condominium in Hampton, Virginia. On December 21, 2006 she executed a promissory note secured by a deed of trust; Countrywide initially serviced the loan and Bank of America ("BOA") later became servicer. Anticipating reduced income, Plaintiff sought loan modification in 2009 and was denied by Countrywide; BOA later offered and Plaintiff accepted a six-month forbearance, followed by an in-house modification with higher payments. Plaintiff alleges she reapplied for modification but BOA informed her in February 2012 there would be no modification and foreclosure would proceed. Professional Foreclosure Corporation of Virginia conducted a foreclosure sale on February 21, 2012. Plaintiff filed suit in the Circuit Court for the City of Hampton on July 5, 2012 asserting claims including breach of the implied covenant of good faith and fair dealing, breach of duty to mitigate, breach of the Deed of Trust (citing 12 U.S.C. § 5219(a)(1)/HAMP), and seeking rescission of the foreclosure sale. Defendants removed the case to federal court and filed motions to dismiss under Fed. R. Civ. P. 12(b)(6); Professional Foreclosure adopted BOA's arguments. The Court considered briefing and oral argument and issued this Memorandum Opinion & Order.

Legal Issues Presented

Whether Plaintiff states a viable claim under or enforceable by virtue of 12 U.S.C. § 5219(a)(1) (HAMP), i.e., whether HAMP or related representations create a private right of action against servicers or lenders.
Whether Plaintiff plausibly alleged breach of the implied covenant of good faith and fair dealing based on BOA's handling of her modification application and foreclosure.
Whether Plaintiff plausibly alleged breach of a duty to mitigate damages by failing to consider a loan modification before foreclosure.
Whether Plaintiff plausibly alleged breach of the Deed of Trust based on the asserted obligation to comply with 12 U.S.C. § 5219(a)(1).

Arguments of the Parties

Plaintiff's Arguments

BOA breached the implied covenant of good faith and fair dealing in the promissory note and deed of trust by failing to properly review her for a loan modification and by foreclosing before completing a proper review and providing required denial/appeal notices (alleging violations of 12 U.S.C. § 5219(a)(1)).
BOA and Professional Foreclosure violated industry standards and postponed foreclosure until modification applications were thoroughly reviewed.
Defendants breached the deed of trust by not complying with federal law (HAMP) and failed to mitigate damages by proceeding to foreclosure prior to full review; Plaintiff sought rescission of the foreclosure sale.

Defendants' Arguments

Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6); Professional Foreclosure adopted BOA's arguments. (The opinion does not set out detailed separate defense briefs beyond noting the motions to dismiss and adoption.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555	Pleading standard: factual allegations must raise a right to relief above the speculative level; "more than labels and conclusions."	Used to frame the Rule 12(b)(6) standard applied to Plaintiff's complaint.
Ashcroft v. Iqbal, 556 U.S. 662, 678	Pleading standard: claim must be facially plausible, not merely possible.	Applied to require plausible factual allegations supporting each claim.
Mosley v. Wells Fargo Bank, N.A., 802 F.Supp.2d 695	Authority that HAMP does not create a private right of action.	Cited as part of a line of cases concluding no relief exists under HAMP for borrowers against servicers.
Sherman, 2011 U.S. Dist. LEXIS 71756, at *6 (E.D. Va. July 5, 2011)	Authority rejecting HAMP-based private causes of action.	Relied upon as supporting the conclusion that HAMP does not create enforceable private rights.
Winn v. Chase Mortgage Services et al, No. 2:10cv359, at *5 (E.D. Va. Oct. 29, 2010)	Authority that HAMP does not provide private remedies against servicers.	Included among cases showing uniform dismissal of HAMP claims.
Hoffman v. Bank of Am., N.A., No. C 10-2171 SI, 2010 U.S. Dist. LEXIS 70455, at *14-15 (N.D. Cal. June 30, 2010)	Authority rejecting private enforcement of HAMP obligations.	Used as supporting precedent that plaintiffs cannot obtain relief under HAMP.
Marks v. Bank of Am., N.A., No. 3:10-cv-08039, 2010 U.S. Dist. LEXIS 61489-PHX-JAT, at *14-16 (D. Ariz. June 21, 2010)	Authority holding no private cause of action under HAMP.	Cited among decisions dismissing HAMP-based claims.
De Vera v. Bank of America, N.A., et al., 2:12-CV-17, 2012 WL 2400627 (E.D. Va. June 25, 2012)	Holding that a HAMP modification application is not a contract unless it is more than a mere offer to apply.	Relied upon to reject Plaintiff's effort to treat HAMP-related communications as creating contractual obligations; Court noted prior rejection of nearly identical claims.
Sherman v. Litton Loan Servicing, L.P., 796 F. Supp. 2d 753, 761 (E.D. Va. 2011) (reconsideration denied, 2:10CV567, 2011 WL 6203256)	An offer to apply for a loan modification is merely an offer to consider and does not create a binding modification contract.	Applied to conclude Plaintiff could not convert a modification application or offer to apply into a contractual obligation to modify.
E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 184 (4th Cir. 2000)	Defines an implied duty as a manifestation of conditions inherent in expressed promises.	Used to explain limitations on implied covenant claims and that implied duties cannot create terms not in the contract.
Skillstorm, Inc. v. Elec. Data Sys., LLC, 666 F.Supp.2d 610, 620 (E.D.Va. 2009)	Principle that exercising contractual rights conferred by written instruments does not breach implied duties.	Applied to reject Plaintiff's claim that foreclosure (an expressly permitted contract remedy) breached an implied duty.
Mclnnis v. BAC Home Loan Servicing, LP, 2:11CV468, 2012 WL 383590 *8 (E.D. Va. Jan. 13, 2012) (report and recommendation adopted, 2012 WL 368282)	Virginia recognizes an implied covenant in certain contracts but it cannot create obligations not present in the contract.	Cited to support that Plaintiff cannot use the implied covenant to impose new duties regarding loan modifications not present in the Note or Deed of Trust.
Young v. Wachovia Mortg. Co., No. 11-CV-099963, 2011 WL 6934110, at *4 (D. Colo. Dec. 30, 2011)	Authority finding breach of good faith claims seeking to impose new duties regarding HAMP modifications fail.	Used as supporting authority that attempts to impose new HAMP-based duties via good faith claims are unsuccessful.
Akintunji v. Chase Home Finance, L.L.C., Civ. Action No. H-11-389, 2011 WL 2470709, at *4 (S.D. Tex. June 20, 2011)	Authority that alleged failure to assist with HAMP cannot support a breach of duty of good faith and fair dealing claim.	Cited as part of the body of authority rejecting HAMP-based good faith claims.
Singh v. Wells Fargo Bank, No. 1:10cv1569, 2011 WL 66167, at *7 (E.D. Cal. Jan. 7, 2011)	Authority concluding allegations of bad faith tied to HAMP modifications attempt to plead around lack of private cause of action.	Used to illustrate courts' rejection of efforts to recast HAMP claims as breach of good faith.
Sunrise Continuing Care, LLC v. Wright, 671 S.E.2d 132, 135 (2009)	Sets Virginia's three-element test for breach of contract: enforceable obligation, breach, and damages caused thereby.	Applied to conclude Plaintiff failed to plead the first element (a legally enforceable obligation) arising from HAMP or the deed of trust.

Court's Reasoning and Analysis

The Court applied the Twombly/Iqbal pleading standards to evaluate whether Plaintiff's complaint plausibly stated claims. It surveyed authority concluding HAMP (12 U.S.C. § 5219(a)(1)) does not create a private right of action and that communications concerning HAMP or modification applications are ordinarily not binding contracts but mere offers to apply or consider. The Court reasoned that Plaintiff's breach of the implied covenant claim was an attempt to disguise a HAMP claim; because neither the promissory note nor the deed of trust imposed a duty to grant or facilitate loan modifications and the deed expressly authorized foreclosure upon default, Plaintiff could not rely on an implied covenant to create such obligations. Regarding the duty to mitigate, the Court observed the statutory language places obligations on the Secretary of the Treasury to implement programs and "encourage" servicers, but does not impose a private, enforceable duty on servicers; therefore Plaintiff lacked a private cause of action to enforce § 5219(a)(1). For the breach of deed of trust claim, the Court applied Virginia's three-part breach-of-contract test and found Plaintiff failed to identify a legally enforceable obligation on the part of BOA or Professional Foreclosure arising from § 5219(a)(1) or the loan documents. Because Plaintiff did not plead an enforceable contractual obligation, the Court did not reach breach or damages on the merits. On these bases, the Court concluded Plaintiff's complaints essentially repackaged non-actionable HAMP claims and were subject to dismissal under Rule 12(b)(6).

Holding and Implications

Holding: Defendants' Motions to Dismiss are GRANTED; Plaintiff's Complaint is DISMISSED.

Implications: The direct effect is dismissal of Plaintiff's claims against BOA and Professional Foreclosure in this action and direction to the Clerk to send the opinion to counsel. The opinion does not announce or adopt a new legal rule beyond applying existing precedent that HAMP does not create a private right of action and that Plaintiffs cannot convert HAMP-related communications into enforceable contractual obligations under the circumstances presented.

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RENEE Y. JOHNSON, Plaintiff, v. BANK OF AMERICA, N.A., And PROFESSIONAL FORECLOSURE CORPORATION OF VIRGINIA, Defendants.

Raymond A. Jackson

MEMORANDUM OPINION & ORDER

Before the Court are Defendants', Bank of America, N.A. ("BOA") and Professional Foreclosure Corporation of Virginia ("Professional Foreclosure"), Motions to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, Defendants' Motions to Dismiss are GRANTED.

Defendants, Bank of America, N.A. and Professional Foreclosure Corporation of Virginia filed separate Motions to Dismiss. However, in its Motion to Dismiss, Defendant Professional Foreclosure adopted the arguments advanced by BOA. This Memorandum Opinion and Order will consider both motions contemporaneously.

I. FACTS & PROCEDURAL HISTORY

Plaintiff owns a tract of land located at 1563 N. King Street, Unit 112, Hampton, Virginia. Compl. ¶ 4. On December 21, 2006, Plaintiff entered into a mortgage loan contract for the property that was evidenced by a Promissory Note and secured by a Deed of Trust. The original servicer was Countrywide Home Loans Servicing, LP ("Countrywide"), but Bank of America ("BOA") later took over as servicer. Compl. ¶ 10.

Anticipating a reduction in income due to her retirement from the military, Plaintiff requested a loan modification from Countrywide, but was denied in 2009. When BOA began servicing her loan, Plaintiff was offered a forbearance agreement, which allowed her to make half-payments for six months. Compl. ¶12. Plaintiff accepted this agreement in November 2009 and the agreement extended until April 2010. Compl. ¶ 12. Plaintiff subsequently obtained in-house modification of her loan, but the modified payments were higher than her original payment amount. Compl. ¶¶ 13. Plaintiff attempted to resubmit her application for a modification, but in February 2012, BOA informed her that there would be no modification and a foreclosure sale would be initiated. Compl. ¶ 15, 16. Plaintiff notes that, as of the filing of this Complaint, BOA has failed to complete the required review process or provide a letter stating the reasons for denial of the modification and providing thirty days to appeal. Compl. ¶ 17. BOA ultimately foreclosed on Plaintiff's property, and on February, 21, 2012, Defendant Professional Foreclosure Corporation of Virginia ("Professional Foreclosure") sold Plaintiff's property at auction. Compl. ¶18.

Based on the above allegations, Plaintiff filed a Complaint and Request for Declaratory Judgment in the Circuit Court for the City of Hampton on July 5, 2012. First, Plaintiff alleges that Defendant BOA violated Virginia law by failing to treat Plaintiff with good faith and fair dealing, as defined by 12 U.S.C. §5219(a)(1). Specifically, Plaintiff asserts that BOA breached the implied covenant of good faith and fair dealing found in the Promissory Note by: (1) failing to properly review Plaintiff for a loan modification and (2) foreclosing on Plaintiff's home before a proper review had been done and a final denial was sent to her. Compl. ¶ 22. Second, Plaintiff contends that BOA and Professional Foreclosure violated Virginia law by not complying with the "standard industry practice" and postponing foreclosure until the modification application had been thoroughly reviewed. Compl. ¶ 25. Third, Plaintiff alleges that BOA's failure to comply with 12 U.S.C. §5219(a)(1) constitutes a breach of the Deed of Trust, in so far as both parties agreed to be bound by all state and federal laws. Compl. ¶ 30-33. Lastly, Plaintiff contends that BOA failed to mitigate its damages by proceeding with foreclosure before properly reviewing and processing the loan modification application. Compl. ¶ 28, 29. Accordingly, Plaintiff requests a rescission of the foreclosure sale. Compl. ¶ 33.

On July 5, 2012, Defendants filed a Notice of Removal to remove the case from the Circuit Court for the City of Hampton to the United States District Court for the Eastern District of Virginia. On July 11, 2012 and July 12, 2012 respectively, Defendants Professional Foreclosure and BOA filed Motions to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff responded to Defendants' motions on July 23, 2012. Plaintiff also filed a Motion to Remand to the Circuit Court for the City of Hampton on October 31, 2012. Defendant BOA filed a Response to Plaintiff's Motion to Remand on November 19, 2012.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action if the Court determines that the Plaintiff has failed to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The motion to dismiss under Rule 12(b)(6) filters out frivolous claims by testing the adequacy of the plaintiff's complaint. Federal Rule of Civil Procedure 8(a)(2) requires the complaint to be "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 12(b)(6). However, Bell Atlantic v. Twombly extended that standard, providing that "factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations stated in the complaint must have "more than labels and conclusions; a formulaic recitation of the elements of a cause of action will not do." Id.

Furthermore, a claim must exceed a mere possibility that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must include facts that plausibly state a claim for relief on its face. Id (emphasis added). A claim is considered to be facially plausible if it asserts facts that lead the court to reasonably infer that the defendant may be liable for the alleged actions. Id.

III. DISCUSSION

Many courts have been confronted with complaints asserting rights under 12 U.S.C. § 5219(a)(1) or the Home Affordable Modification Program ("HAMP"). While plaintiffs in these cases have made several different arguments grounded in many different legal theories, the result of these cases is generally the same. Courts across the country, including this Court, have consistently concluded that there can be no relief under HAMP because the program does not create a private right of action for borrowers against servicers or lenders. See, e.g., Mosley v. Wells Fargo Bank, N.A., 802 F.Supp.2d 695 (E.D. Va. 2011); Sherman, 2011 U.S. Dist. LEXIS 71756, at *6 (E.D. Va. July 5, 2011); Winn v. Chase Mortgage Services et al, No. 2:10cv359, at *5 (E.D. Va. Oct. 29, 2010); Hoffman v. Bank of Am., N.A.,No. C 10-2171 SI, 2010 U.S. Dist. LEXIS 70455, at *14-15 (N.D. Cal. June 30, 2010); Marks v. Bank of Am., N.A., No. 3:10-cv-08039, 2010 U.S. Dist. LEXIS 61489-PHX-JAT, at * 14-16 (D. Ariz. June 21,2010).

Courts in this district have previously held that an application for a HAMP loan modification is not a valid contract unless the plaintiff can prove that the application was more than a mere offer to apply. De Vera v. Bank of America, N.A., et al., 2:12-CV-17, 2012 WL 2400627 (E.D. Va. June 25, 2012); Sherman v. Litton Loan Servicing, L.P., 796 F. Supp. 2d 753, 761 (E.D. Va. 2011) reconsideration denied, 2:10CV567, 2011 WL 6203256 (E.D. Va. Dec. 13, 2011). An offer to apply for a loan modification is merely an offer to consider the Plaintiff's loan modification application. Sherman, 796 F. Supp. at 762 (emphasis added). Such an offer does not, as a matter of law, create a binding contract to modify Plaintiff's mortgage. Id.

A. Breach of the Implied Covenant of Good Faith and Fair Dealing

Plaintiff alleges that Defendant, BOA, breached the implied covenant of good faith and fair dealing found in the Promissory Note and Deed of Trust. Plaintiff contends that BOA breached this covenant under 12 U.S.C. § 5219(a)(1) by: (1) failing to review Plaintiff for a loan modification and (2) foreclosing on Plaintiff's home before a proper review had been done. Compl. ¶ 22. Virginia courts recognize an implied covenant of good faith and fair dealing in certain contracts. Mclnnis v. BAC Home Loan Servicing, LP, 2:11CV468, 2012 WL 383590 *8 (E.D. Va. Jan. 13,2012) report and recommendation adopted, Mclnnis v. BAC Home Loan Servicing, LP, 2:11CV468, 2012 WL 368282 (E.D. Va. Feb. 3, 2012). However, the implied covenant cannot create terms that do not otherwise exist. Id. An implied duty under a contract is simply a manifestation of conditions inherent in expressed promises. E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 184 (4th Cir. 2000). Plaintiff cannot employ the implied duty of good faith and fair dealing to create obligations with respect to loan modification that were not present in the underlying contracts. Here, neither the Promissory Note nor the Deed of Trust creates a duty on the part of BOA to facilitate loan modification. The written terms of the Note and Deed of Trust explicitly allow BOA to foreclose upon the property if the borrower defaults on the loan. A party does not breach implied duties where it exercises its rights created under the contract Skillstorm, Inc. v. Elec. Data Sys., LLC, 666 F.Supp.2d 610, 620 (E.D.Va. 2009)

The Court views this contention as Plaintiff's attempt to mask her HAMP claim under the guise of an implied covenant of good faith and fair dealing claim. Courts have routinely dismissed similar HAMP claims, rebutting plaintiffs' efforts to pursue a remedy for which no private cause of action exists. De Vera v. Bank of America, N.A., et al., 2:12-CV-17,2012 WL 2400627 (E.D. Va. June 25, 2012); Mclnnis v. BAC Home Loan Servicing, LP, 2012 WL 383590, *8-*9 (E.D.Va. Jan. 13,2012) (citing Young v. Wachovia Mortg. Co., No. 11-CV-099963 2011 WL 6934110, at *4 (D.Colo. Dec. 30, 2011) (holding Plaintiffs ' breach of good faith and fair dealing claim "seeks to impose new duties upon Defendants and grant Plaintiff[s] new rights relating to the [HAMP] modification of the loan's original terms."); Akintunji v. Chase Home Finance, L.L.C., Civ. Action No. H-11-389, 2011 WL 2470709, at *4 (S.D. Tex. June 20, 2011) (finding that alleged failure to assist with the HAMP program cannot support a claim for breach of duty of good faith and fair dealing); Singh v. Wells Fargo Bank, No. 1:10cv1569, 2011 WL 66167, at *7 (E.D. Cal. Jan 7, 2011) (holding plaintiff's allegations that bank's foreclosure after accepting payments under modified terms constituted bad faith was "an attempt to plead around the lack of private cause of action for HAMP violations")). Plaintiff has not shown that any of the Defendant's actions constitute a breach of a duty created by the Deed of Trust or the Promissory Note. Plaintiff cannot sufficiently allege that any of Defendant BOA's actions would constitute a breach of the implied covenant of good faith and fair dealing. The Court will not allow Plaintiff to use this cause of action to mask a thinly veiled HAMP claim. Accordingly, Defendants' Motions to Dismiss Plaintiff's Breach of Good Faith and Fair Dealing claim are GRANTED.

B. Breach of the Duty to Mitigate Damages

Plaintiff asserts that Defendants breached the duty to mitigate damages by failing to properly consider Plaintiff for a loan modification before instituting foreclosure proceedings, in violation of 12 U.S.C. § 5219(a)(1). Plaintiff argues that because foreclosure is a damage remedy stemming from Plaintiff's breach of the loan contract, then as a matter of law, Defendants have the duty to mitigate those damages. Compl. ¶ 25. Title 12 U.S.C. § 5219 (a)(1) provides guidelines for foreclosure mitigation efforts, stating in pertinent part:

"[T]he Secretary [of Treasury] shall implement a plan that seeks to maximize assistance for homeowners and use the authority of the Secretary to encourage the servicers of the underlying mortgages, considering net present value to the taxpayer, to take advantage of the HOPE for Homeowners Program under section 1715z-23 of this title or other available programs to minimize foreclosures. In addition, the Secretary may use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures."

12 U.S.C. § 5219(a)(1) (emphasis added). The statute requires the Secretary of Treasury to implement a homeowners' assistance program and encourage servicers to take advantage of the HOPE for Homeowners Program. The plain language of the statute does not demand that each private loan modification application shall be granted. Further, as noted previously, Plaintiff's cannot sue to enforce a duty to mitigate under 12 U.S.C. § 5219(a)(1) because the statute contains no private right of action. Thus, even if the statute were require some heightened modification review, Plaintiff would have no standing to sue. Accordingly, the Plaintiff has not presented sufficient facts to the Court to support a claim for Breach of the Duty to Mitigate Damages and Defendants' Motions to Dismiss this claim are GRANTED.

C. Breach of the Deed of Trust

Plaintiff alleges that in the Deed of Trust, Defendants agree to be bound by all state and federal laws. Accordingly, Plaintiff asserts that Defendants are therefore bound by 12 U.S.C. § 5219(a)(1). Plaintiff argues that both Defendants breached the Deed of Trust by proceeding to foreclosure upon Plaintiff's home before fully viewing the modified loan application. Compl. ^ 25. Under Virginia law, however, a party claiming breach of contract must establish three elements to prevail: "(1) a legally enforceable obligation of a defendant to a plaintiff, (2) the defendant's violation or breach of that obligation, and (3) injury or damage to the plaintiff caused by the breach of obligation." Sunrise Continuing Care, LLC v. Wright, 671 S.E.2d 132, 135 (2009).

As to the first prong, Defendant BOA was under no legally enforceable obligation to reconsider Plaintiff's request for loan modification before proceeding to foreclosure. As established above, the plain language of the statute does not place an obligation on individual servicers and lenders like BOA to grant each applicant a loan modification. Furthermore, no provision in the statute explicitly or implicitly requires the Substitute Trustee, Professional Foreclosure, to wait for certification that the Plaintiff's application for loan modification has been reviewed before proceeding with a foreclosure sale. Title 12 U.S.C. §5219(a)(l) merely places an obligation on the Secretary of Treasury to implement an assistance program. Plaintiff has not identified a legally enforceable obligation of either Defendant and has failed to sufficiently allege the first prong of the three-part breach of contract test, thus the Court need not consider the second and third prongs.

In short, Plaintiff attempts to assert a HAMP claim by alleging various breach of contract claims. The Court has already established that homeowners do not have a private right of action under HAMP. Plaintiff's counsel presented nearly identical arguments before the Court in De Vera v. Bank of America, N.A., et al., and those claims were soundly rejected. 2012 WL 2400627 (E.D.Va. June 25, 2012). In both its filings presented to the Court and oral argument, Plaintiff's counsel has failed to distinguish the present claims from those that failed in De Vera. Accordingly, Defendants' Motions to Dismiss Plaintiff's Breach of the Deed of Trust claim are also GRANTED.

IV. CONCLUSION

For the reasons stated above, it is ORDERED that Defendants' Motions to Dismiss Plaintiff's Complaint are GRANTED.

Plaintiff's Complaint is hereby DISMISSED.

The Court DIRECTS the Clerk to send a copy of this Memorandum Opinion and Order to counsel of record.

IT IS SO ORDERED. Norfolk, Virginia
December 5, 2012

_________________

Raymond A. Jackson

United States District Judge