COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Chaney and Callins UNPUBLISHED
Argued at Alexandria, Virginia
GLORIA NEAL MEMORANDUM OPINION* BY v. Record No. 2132-24-4 JUDGE MARY GRACE O’BRIEN DECEMBER 30, 2025 SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Tracy C. Hudson, Judge
James M. Stewart, Jr., for appellant.
Ronald J. Guillot, Jr. (Samuel I. White, P.C., on brief), for appellee.
Gloria Neal appeals the judgment of the circuit court granting the United States
Department of Veterans Affairs (VA) immediate possession of her residence in Haymarket,
Virginia, following the 2019 foreclosure on her VA mortgage. We affirm.
BACKGROUND1
Neal purchased the residence in 2012, which she financed with a mortgage guaranteed by
the VA. She defaulted and entered into a loan modification to avoid foreclosure in 2016. Neal
again defaulted in 2018, and BSI Financial Services, the VA’s loan servicer, sent her a notice of
default and intent to accelerate on April 25, 2018, informing her that she could cure the default by
paying $18,417.50. The notice also informed her that, if she were unable to make her account
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 “When summary judgment is based upon the granting of a motion to strike a party’s evidence, we view the evidence and the inferences reasonably raised thereby in the light most favorable to the party whose evidence has been stricken.” Griffin v. Spacemaker Group, Inc., 254 Va. 141, 142 (1997). current, “BSI offer[ed] consumer assistance programs designed to help resolve delinquencies and
avoid FORECLOSURE,” that she “may be eligible for a loan workout plan or other similar
alternatives,” and that she could contact BSI’s Loss Mitigation Department for more information.
BSI sent her similar notices on June 7 and September 4, 2018. Neal did not cure, and a foreclosure
sale occurred on July 15, 2019. The VA was the highest bidder, and a foreclosure deed conveying
the property to the VA was recorded in the public land records. On August 5, 2019, via its
substitute trustee, the VA sent Neal a “Notice to Quit and Demand for Possession” of the residence
(“notice to vacate”). Despite this notice to vacate, Neal continued to reside at the property. The VA
initiated an unlawful detainer action against Neal in general district court, but she made a Parrish
motion challenging the validity of the VA’s title to the residence, and the district court dismissed the
case without prejudice. See Parrish v. Fed. Nat’l Mortg. Ass’n, 292 Va. 44, 52-53 (2016).
The VA filed a complaint for unlawful detainer in circuit court in January 2020. See id. at
53 (stating that if the district court finds that a homeowner has raised a legitimate question of title to
the foreclosed property, the case “must be dismissed without prejudice,” after which “[t]he
foreclosure purchaser may then seek appropriate remedies in the circuit court under its original
jurisdiction”). Neal filed an answer including an affirmative defense of “negligent” or “constructive
fraud.” Specifically, Neal alleged that a VA representative repeatedly told her that when she
entered into the loan modification in 2016, “she no longer had a VA loan.” Neal conceded it was
“unlikely” that a VA representative intentionally misled her to believe that—in exchange for help
with the 2016 loan—she lost the benefits of holding a VA loan; nevertheless, she argued that the
representative’s statement constituted “negligent fraud” or “constructive fraud” because she relied
on it in not seeking further help from the VA to avoid foreclosure. The VA then moved for
summary judgment, which the circuit court granted on July 13, 2022.
-2- Neal appealed the judgment to this Court, and we reversed. See Neal v. Sec’y of the Dep’t of
Veterans Affairs, 79 Va. App. 1 (2023). “Neal argue[d] that the circuit court erred by finding that
her affirmative defense of fraud was insufficient to defeat the VA’s motion for summary judgment.”
Id. at 3. But “[t]he VA contend[ed] that because a court cannot set aside the foreclosure deed based
on an affirmative defense, Neal would only have been able to challenge the validity of the deed in a
counterclaim or other offensive action.” Id. at 8. We disagreed. Noting that a “foreclosure sale
may be set aside in cases ‘involving fraud,’” id. at 9 (quoting Young-Allen v. Bank of Am., 298 Va.
462, 468 (2020)), we observed that “Neal asserted that the VA’s foreclosure deed is invalid as it was
the product of constructive fraud, specifically that a representative of the VA erroneously and
negligently informed her that she was no longer protected by VA regulations related to the servicing
of her loan”; that she claimed to have relied on the VA representative’s statement; that but for that
statement, “she would have availed herself of the VA’s regulatory remedies to avoid foreclosure”;
and that “Neal’s pleaded assertions sufficiently articulate the elements of constructive fraud, which,
if proven, could be sufficient to satisfy a court to rescind the foreclosure sale.” Id. at 10. Thus, we
held, “the circuit court erred by granting the VA’s motion for summary judgment.” Id.
On remand, the parties engaged in discovery. She admitted executing a loan modification
document in 2016 recognizing that “the Secretary of Veterans Affairs is the owner and holder of the
Security Instrument and Note,” and she admitted that this document was a “true and accurate copy
of the [l]oan [m]odification that [she] signed.” She also admitted that the VA’s loan servicer sent
three notices of default to her property in 2018, offering consumer assistance programs to resolve
delinquencies and avoid foreclosure. Based on her responses to requests for admission and
interrogatories, the VA moved to strike Neal’s affirmative defense of fraud on June 20, 2024. The
VA certified that it sent the motion not only to Neal’s attorney but also to Neal herself at her
residence. In a letter filed on July 8, 2024, Neal’s attorney informed the circuit court that he had
-3- been disbarred effective June 7, 2024. On July 15, 2024, the VA filed a praecipe setting its motion
to strike for a hearing on August 16, 2024. The VA certified that it served the praecipe on Neal
herself—not counsel—by mail to her residence. The VA also sent Neal a copy of the motion and
praecipe by FedEx, along with a letter acknowledging that her “previous attorney had his license
revoked” and directing her to have any new counsel “reach out . . . [to] discuss this matter, including
scheduling as we are willing to work with counsel in that regard.”
On August 28, 2024, the circuit court entered an order granting the VA’s motion to strike,
stating that Neal “did not oppose the [m]otion nor appear.” The court found that Neal “failed as a
matter of law to establish that [the VA representative]’s statement that [she] lost VA loan protection
due to a 2016 loan modification was a material misrepresentation” and that “any reliance upon that
statement was unreasonable because of [Neal]’s admission that prior to foreclosure the [VA],
through its servicer [BSI], sent multiple [n]otices” inviting Neal to contact them if she was unable to
bring her account current and stating that “BSI OFFERS consumer assistance programs to help
resolve delinquencies and avoid FORECLOSURE.” The court also found that Neal had made
admissions establishing her knowledge that the VA was the “owner and holder” of the note
foreclosed upon, that notices inviting her to contact BSI for assistance were sent to her address, that
these notices were sent after the alleged misrepresentation that she asserted as fraud, and that despite
these notices, she did not contact the VA or BSI for assistance.
The VA then moved for summary judgment, serving both the motion and the hearing
praecipe on Neal at her residence. The VA initially set the hearing for October 4, 2024, but Neal
moved to continue the hearing, filing a letter with the court explaining that she was having difficulty
obtaining new counsel and that she would be traveling on the date that the VA had selected. The
VA filed another praecipe setting the hearing for November 1, 2024, again serving Neal at her
residence. Neal, having by then obtained new representation, filed by counsel an opposition to the
-4- VA’s summary judgment motion, reiterating “that the foreclosure of her home was defective
because of constructive fraud.”2
Simultaneously with her opposition to summary judgment, Neal filed a motion to reconsider
the striking of her affirmative defense. She stated that she had been unaware of the motion to strike
until after the hearing, and she reiterated that her defenses included that “she was unaware of the
foreclosure of her home until after it took place and did not seek to amend her loan modification
after [s]he fell into arrears because she was negligently misled into believing she could not seek
veterans benefits after her loan modification.” In an attached declaration, Neal acknowledged that,
although the record reflected that the VA sent her notice of its motion to strike and the hearing
praecipe, she had not received these documents, nor any notice of her first attorney’s disbarment.
The declaration restated her defense that the VA engaged in constructive fraud when its
representative told her that she no longer had a VA loan due to the 2016 loan modification, leading
her to believe that she could not seek to prevent the foreclosure. The VA opposed Neal’s motion to
reconsider and filed a response to her opposition to summary judgment.
The circuit court heard the VA’s motion for summary judgment and Neal’s motion to
reconsider on November 22, 2024, and it entered a final order the same day. The court found
“Neal’s [o]pposition to [the] [m]otion for [s]ummary [j]udgment unavailing as it failed to raise any
issues of material fact in dispute.” Additionally, the court “granted [the VA’s] [m]otion to [s]trike
Neal’s affirmative defense of fraud and constructive fraud” based “in part” on Neal’s admissions in
discovery.
2 In her opposition to summary judgment, Neal also asserted for the first time that “the record . . . [did] not demonstrate that [any] notice [to vacate] was received by Neal prior to the complaint in this case being filed,” creating a “a jury question of when this notice was received.” Neal made this claim despite having admitted in her answer that the VA sent the notice to vacate to Neal at the residence on August 5, 2019, months before filing the circuit court complaint. In its summary judgment ruling, the court found no material dispute of fact on this issue, and Neal has abandoned it on appeal. -5- On appeal, Neal claims that the court “erred in its finding that Neal had an attorney/agent”
when her first attorney was disbarred—and that it denied her due process by continuing with the
proceedings and granting the VA’s motion to strike when she was unaware of the hearing. Further,
she argues that the court erred in not recognizing her defenses that “she was unaware of the
foreclosure of her home until after it took place” and that she did not try to avoid foreclosure
“because she was negligently misled into believing she could not seek” further relief after her loan
modification. Finally, Neal claims that “material facts were in dispute when the trial court entered
judgment” on her constructive fraud claim, necessitating a jury trial.
ANALYSIS
Neal’s first assignment of error implies that the circuit court erroneously found that she had
an attorney between the disbarment of her first attorney and her retention of new counsel. Per Rule
5A:20(c), an appellant must state “the specific errors in the rulings below . . . upon which the party
intends to rely.” For “an assignment of error to comply with [the] Rule . . . , it must identify an
erroneous ruling, finding, or failure to rule by the trial court.” Barnes v. Commonwealth, 80
Va. App. 588, 595 (2024) (emphasis omitted). As framed, Neal’s assignment of error implies that
the court found that she was represented by counsel even after her first attorney was disbarred. But
the court made no such ruling. What the court actually found, as reflected in the written statement
of facts in lieu of a transcript agreed to by the parties and signed by the court, is that Neal’s first
attorney “was acting as her agent at all times prior to his disbarment on June 7, 2024.” (Emphasis
added). Nothing in the court’s finding can fairly be construed as holding that it viewed Neal’s
disbarred former attorney as her counsel or agent at the time the VA filed its motion to strike. To
the contrary, the record shows that Neal’s former attorney notified the court of his disbarment and
that, from then until Neal retained new counsel, the VA served all filings and notices on her
personally at her residence, where she was known to receive mail. The court did not make the
-6- ruling complained of, and an “assignment of error that does not address the findings, rulings, or
failures to rule on issues in the trial court . . . from which an appeal is taken, . . . is not sufficient.”
Barnes, 80 Va. App. at 594-95 (alterations in original) (quoting Rule 5A:20(c)(2)).
Neal further argues that the court erred by proceeding with the VA’s motion to strike when
she was unaware of it, which she attributes to her first attorney’s disbarment. However, the record
establishes that the VA filed the motion to strike and praecipe and served Neal by mail at her
residential address in accordance with Rule 1:12, which allows service by mailing for “[a]ll
pleadings, motions and other papers served after the initial process in an action.” Additionally, the
VA sent Neal a copy of the motion and praecipe by FedEx, along with a letter advising that her
“previous attorney had his license revoked” and directing her to have any new counsel “reach out
. . . to discuss this matter, including scheduling as we are willing to work with counsel in that
regard.” The record includes a FedEx delivery receipt and photograph of the delivered package.
Rule 1:12 states that “service pursuant to this Rule is effective upon . . . delivery, dispatch,
transmission or mailing.”
Neal conceded in her declaration that the VA sent her notices of its motion to strike and the
hearing date “at [her] address.” Although she denies receiving these documents, Rule 1:12 does not
require proof of receipt; a certificate of mailing is sufficient to satisfy the service requirement under
the Rule. Neal cites no facts or legal authority to support her claim that these notices or services on
her directly, after her attorney was disbarred, violated Rule 1:12 or offended due process.
“[U]nsupported assertions of error ‘do not merit appellate consideration.’” Church Mut. Ins. Co. v.
Ephesus Richmond Seventh-Day Adventist Church, 84 Va. App. 371, 380 (2025) (quoting Bartley v.
Commonwealth, 67 Va. App. 740, 744 (2017)); see Rule 5A:20(e) (requiring “principles of law and
authorities” in an appellant’s opening brief).
-7- Furthermore, we are constrained by the harmless error doctrine. “Any error that does not
implicate the trial court’s subject matter jurisdiction is subject to harmless-error analysis because
‘Code § 8.01-678 makes “harmless-error review required in all cases.”’” Spruill v. Garcia, 298 Va.
120, 127 (2019) (emphasis omitted) (quoting Commonwealth v. White, 293 Va. 411, 420 (2017)).
Here, the harmless error doctrine applies to Neal’s alleged non-receipt of the notice of the VA’s
motion to strike. Once Neal retained new counsel, the circuit court entertained and heard argument
on her motion to reconsider the order striking her defenses, thus curing any prejudice to Neal from
her claimed non-receipt of notice on that motion.
We now turn to the heart of Neal’s appeal—her assignment of error to the court’s handling
of her claim of constructive fraud. A litigant claiming fraud must establish “(1) a false
representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to
mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.” Evaluation
Rsch. Corp. v. Alequin, 247 Va. 143, 148 (1994). “Constructive fraud differs from actual fraud in
that the misrepresentation of material fact is not made with the intent to mislead, but is made
innocently or negligently although resulting in damage to the one relying on it.” Id. “Whether the
representation is made innocently or knowingly, if acted on, the effect is the same. In the one case
the fraud is constructive; in the other it is actual.” Jefferson Standard Life Ins. Co. v. Hedrick, 181
Va. 824, 834 (1943). However, “[o]ne element of fraud . . . is that the victim ‘reasonably relied
upon the misrepresentations . . . that allegedly constituted the fraud. Absent such reasonable or
“justifiable reliance,” no fraud is established.’” Sweely Holdings, LLC v. SunTrust Bank, 296 Va.
367, 382 (2018) (third alteration in original) (emphasis added) (quoting Murayama 1997 Tr. v.
NISC Holdings, LLC, 284 Va. 234, 246 (2012)).
“A finding of either actual or constructive fraud requires clear and convincing evidence that
one has represented as true what is really false, in such a way as to induce a reasonable person to
-8- believe it, with the intent that the person will act upon this representation.” Evaluation Rsch. Corp.,
247 Va. at 148. “The term ‘clear and convincing evidence’ has been defined as ‘that measure or
degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to
the allegations sought to be established.’” In re Brown, 295 Va. 202, 227 (2018) (quoting Jud.
Inquiry & Rev. Comm’n of Va. v. Pomrenke, 294 Va. 401, 409 (2017)). This standard is
“considerably higher than a ‘mere preponderance.’” Id. (quoting Pomrenke, 294 Va. at 409). “Put
another way, the persuasive quality of clear-and-convincing evidence must establish that ‘the thing
to be proved is highly probable or reasonably certain.’” Id. (quoting Evidence, Black’s Law
Dictionary (10th ed. 2014)). This burden “has been fairly characterized as a ‘heavy burden.’” Id.
(quoting Commonwealth v. Allen, 269 Va. 262, 275 (2005); United States v. Watson, 793 F.3d 416,
420 (4th Cir. 2015)). Neal has failed to carry it.
Returning to the elements of fraud, a party must establish “detrimental reliance on a . . .
material misrepresentation.” Murray v. Hadid, 238 Va. 722, 730 (1989). It appears uncontested
that a representative of the VA made an oral misrepresentation to Neal that she would no longer
have a VA loan after her 2016 loan modification and that she relied on that misrepresentation in not
taking further action to avoid foreclosure when she again defaulted in 2018.
What is contested, however, is whether such reliance was reasonable. “The touchstone of
reasonableness is prudent investigation.” Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614,
629 (4th Cir. 1999) (construing Virginia law). Here, Neal received documents after her loan
modification indicating that the VA was the holder of her mortgage. The 2016 loan modification
itself, executed by the VA and Neal, specifically recognized that “the Secretary of Veterans Affairs
is the owner and holder of the Security Instrument and Note.” In discovery, Neal admitted that this
document was a “true and accurate copy of the [l]oan [m]odification that [she] signed.” Then, after
her second default, Neal received multiple notifications from the VA’s loan servicer informing her
-9- of the availability of programs to avoid default and inviting her to inquire for more information.
These messages would have put a reasonable person on notice of the possible availability of
assistance in avoiding default. Yet, for reasons unexplained in the record, Neal ignored these
messages and assumed instead, without further inquiry, that no relief was available. Given the
multiplicity of written messages to the contrary, Neal’s reliance on an oral message from 2016 was
not reasonable. “The common law affords to everyone reasonable protection against fraud in
dealing, but does not go to the romantic length of giving indemnity against the consequences of
indolence and folly, or a careless indifference to the ordinary and accessible means of information.”
Harris v. Dunham, 203 Va. 760, 771 (1962) (quoting Lake v. Tyree, 90 Va. 719, 724 (1894)).
“[S]ince [fraud] must be clearly proved it must be distinctly stated.” Mortarino v.
Consultant Eng’g Servs., 251 Va. 289, 295 (1996) (second alteration in original) (quoting Ciarochi
v. Ciarochi, 194 Va. 313, 315 (1952)). In other words, “[l]itigants must plead fraud with
particularity.” James G. Davis Constr. Corp. v. FTJ, Inc., 298 Va. 582, 613 (2020). Neal has
“failed to [adequately] allege that she could have cured her default and prevented the foreclosure”
even absent the alleged misrepresentation. Young-Allen, 298 Va. at 470. In her answer to the VA’s
complaint, Neal averred that “if [she] had known after 2016 that she had the benefits of a VA loan,
she would have sought help from the VA to stop the foreclosure” and that, “on the basis of seeking
such help, she would have found some way to prevent the foreclosure of her home,” without any
detail as to how she might have done so. (Emphasis added). “When used in a context in which
additional precision concerning quantity or quality is sought, the word ‘some’ is inherently
ambiguous. ‘Some’ is a word that refers to an unspecified quantity or quality. It is a word that
diminishes precision, not adds to it.” Yazd v. Woodside Homes Corp., 143 P.3d 283, 289 (Utah
2006). Neal’s allegations lack the clarity and detail required when relying on fraud to defend
against foreclosure. Neal subsequently failed to provide the circuit court, or this Court on appeal,
- 10 - any details as to what steps she might have taken, had she known that assistance might be available,
to avert foreclosure. Considering the record before us, Neal failed to establish fraud “with the
requisite degree of particularity.” Mortarino, 251 Va. at 295.
“A motion to strike should be granted if the evidence presented is insufficient as a matter of
law to support . . . [a] claim, and thus the case or individual issue should not be submitted to the
factfinder.” Graydon Manor, LLC v. Bd. of Supervisors of Loudoun Cnty., 79 Va. App. 156, 166
(2023) (citing Claycomb v. Didawick, 256 Va. 332, 335 (1998)). “In considering a motion to strike,
a circuit court must ‘accept as true all the evidence favorable to the [nonmoving party] as well as
any reasonable inference a jury might draw therefrom [that] would sustain the [nonmoving party’s
claim].” Id. (quoting Claycomb, 256 Va. at 335). “The same standard applies to our review.” Id.
“We hold that the circuit court appropriately granted the motion to strike here because, even
drawing all inferences in [Neal]’s favor, [she] failed to” plead sufficient facts that, if proven, would
have established that she reasonably relied on the VA’s alleged misrepresentation to her detriment.
Id. The court therefore properly struck her claims and, having done so, properly entered summary
judgment in favor of the VA.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
- 11 -