Sloan v. Urban Title Services, LLC

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANDREA SLOAN, as Guardian and Conservator on behalf of Mary Juergens, an Incapacitated Individual, in both Mary Juergens’ individual capacity and as the sole member of “1230 23rd Street, LLC,” Civil Action No. 06-1524 (CKK) Plaintiff,

v.

URBAN TITLE SERVICES, INC., et al.,

Defendants.

MEMORANDUM OPINION (April 7, 2010)

Presently pending before the Court are several motions filed by the parties with respect to

the improper notarization of certain documents relating to the loan extended to Plaintiff1 by

Defendant First Mount Vernon Industrial Loan Association, Inc. (“FMVILA”) with the assistance of

Defendants Arthur Bennett, Dale Duncan, and Brickshire Settlements, LLC (“Brickshire”)

(collectively, “FMV Defendants”). Specifically, this Memorandum Opinion addresses: (1)

Plaintiff’s [160] Motion for Summary Judgment on the Issue of Improper Notarization and FMV

Defendants’ [181/182] Cross-Motion on the Issue of Improper Notarization, both of which the

Court previously held in abeyance in part with respect to the question of whether the Deed and Deed

1 Subsequent to filing the instant action, the original Plaintiff in this action, Ms. Mary Juergens, was found to be an “incapacitated individual,” and Andrea Sloan was appointed as Guardian and Conservator on behalf of Ms. Juergens and has been substituted as Plaintiff for Ms. Juergens, in both her individual capacity and in her capacity as the sole member of 1230 23rd Street, LLC. See Docket No. [114] at 2; see also Fourth Am. Compl., Docket No. [120]. For convenience, the Court shall refer to Ms. Juergens and Ms. Sloan interchangeably as “Plaintiff.” of Trust should be stricken from the D.C. Recorder of Deeds; and (2) Defendant Brickshire and

Duncan’s [252] Motion for Partial Summary Judgment Regarding the Absence of Damages to the

Plaintiff from the Lack of a Proper Notary of Certain Documents.

As indicated below, Plaintiff now concedes that her request for relief in the form of an order

directing that the Deed and Deed of Trust be stricken from the D.C. Recorder of Deeds is moot.

Accordingly, the Court shall DENY-IN-PART AS MOOT both the Plaintiff’s [160] Motion for

Summary Judgment on the Issue of Improper Notarization as well as the FMV Defendants’

[181/182] Cross-Motion on the Issue of Improper Notarization insofar as each motion addresses the

question of whether the Deed and Deed of Trust should be stricken from the D.C. Recorder of

Deeds and shall DISMISS AS MOOT Plaintiff’s request for relief, as set forth in the Fourth

Amended Complaint, for an order directing the D.C. Recorder of Deeds to strike the Deed and Deed

of Trust.

In addition, as Plaintiff also concedes that her allegations based on the defective notarization

of certain documents are now moot as well, the Court shall DENY AS MOOT Brickshire and

Duncan’s [252] renewed Motion for Partial Summary Judgment Regarding the Absence of Damages

to the Plaintiff from the Lack of a Proper Notary of Certain Document and shall DISMISS AS

MOOT Plaintiff’s claims for breach of contract (Count XXI), breach of fiduciary duty (Count

XXII), and negligence (Count XXIII), to the extent each claim is based on the failure to properly

notarize the Deed, Deed of Trust, and the Assignment of Contracts, Income, Lease, Rents and

Profits.

The Court, however, declines on the present record to rule on the Defendants’ arguments

that Plaintiff’s lawsuit is now moot in its entirety. To the extent the FMV Defendants maintain that

2 Plaintiff’s lawsuit is now moot, they may file a motion for summary judgment on this issue pursuant

to the schedule set forth below.

BACKGROUND

The Court assumes familiarity with the factual background of this case, which is set forth in

detail in this Court previous’ opinions, see Juergens v. UTS, 652 F. Supp. 2d 51 (D.D.C. 2009);

Juergens v. UTS, 246 F.R.D. 4 (D.D.C. 2007); Juergens v, UTS, 533 F. Supp. 2d 64 (D.D.C. 2008);

Juergens v, UTS, 652 F. Supp. 2d 40 (D.D.C. 2009); Juergens v, UTS, 652 F. Supp. 2d 51 (D.D.C.

2009), and the Court therefore addresses herein only such facts as are necessary for resolution of the

motions currently before the Court.

On September 27, 2009, Plaintiff executed a special warranty deed selling the Condo at issue

in this litigation to a third-party purchaser and paid Defendant FMVILA the net proceeds from that

sale in exchange for FMVILA waiving its lien on the property. See Status Report, Docket No.

[242]. In light of this change in circumstances, the Court held in abeyance in part Plaintiff’s [160]

Motion for Summary Judgment on the Issue of Improper Notarization and the FMV Defendants’

[181/182] Cross-Motion on the Issue of Improper Notarization with respect to the question of

whether the Deed and Deed of Trust should be stricken from the D.C. Recorder of Deeds. See

Juergens v. UTS, 652 F. Supp. 2d 51, 67 (D.D.C. 2009). The Court ordered Plaintiff to file a notice

advising the Court whether her request to strike the Deed and Deed of Trust had been rendered moot

by the sale of the Condo. Id.

Plaintiff, in responding to the Court’s Order, initially took the position that the sale of the

Condo did not moot her request for relief to strike the Deed and the Deed of Trust from the D.C.

Recorder of Deeds, as set forth in her Fourth Amended Complaint. See Status Report, Docket No.

3 [242]. Plaintiff, however, provided no factual or legal support for that position. Accordingly, by

Order dated February 12, 2010, the Court directed Plaintiff to submit further supplemental briefing

that “provid[ed] specific factual and legal support for her claim that the request [to strike the Deed

and Deed of Trust from the D.C. Recorder of Deeds] is not moot.” See Feb. 12, 2010 Order, Docket

No. [250]. The Court also indicated that it would provide the FMV Defendants an opportunity to

file a response to Plaintiff’s notice. See id.

In addition, given the changed circumstances relating to the sale of the Condo, the Court’s

February 12, 2010 Order also denied without prejudice Defendant Brickshire and Duncan’s [176]

Motion for Partial Summary Judgment Regarding the Absence of Damages to the Plaintiff from the

Lack of a Proper Notary of Certain Documents. See Feb. 12, 2010 Order, Docket No. [250], at 4-5.

Defendants Brickshire and Duncan argued in relevant part that neither Plaintiff nor the LLC

sustained any injury (i.e., damages) as a result of the improper notarization on these loan documents.

Because the motion was filed prior to the sale of the Condo, however, the parties’ briefing did not

address the impact of this sale on Plaintiff’s claim that she was damaged by the improper

notarization of the loan documents and the Court therefore declined to consider the motion without

further briefing on the impact, if any, of the change in circumstances relating to the sale of the

Condo. See id. The Court permitted Brickshire and Duncan to file a renewed motion on this issue.

The parties have since filed the required supplemental briefing. Specifically, on March 11,

2010, Plaintiff filed a supplemental response addressing her request to strike the Deed and Deed of

Trust from the D.C. Recorder of Deeds. See Pl.’s Response, Docket No. [253]. As indicated

therein, Plaintiff now concedes that, upon further review and consideration, the sale of the Condo

has rendered moot her request to strike the Deed and Deed of Trust from the D.C. Recorder of

4 Deeds. See id. at 1 (“Upon further review of the facts and law at issue, Ms. Sloan now takes the

position that the sale of Mary Juergens’ condominium unit renders moot her request to strike the

deed and deed of trust from the District of Columbia’s Office of the Recorder of Deeds.”). The

FMV Defendants filed a supplemental response indicating that they agree with Plaintiff that her

request to strike the Deed and Deed of Trust is now moot.2 See Docket No. [259]. In addition, the

FMV Defendants argue in their supplemental response — for the first time — that the sale of the

Condo has also rendered moot Plaintiff’s lawsuit in its entirety. Id.

Defendants Brickshire and Duncan have also, as permitted, filed a renewed Motion for

Partial Summary Judgment Regarding the Absence of Damages to the Plaintiff from the Lack of a

Proper Notary of Certain Document. See Docket No. [252]. Defendants Brickshire and Duncan

contend that they are entitled to summary judgment on Plaintiff’s claims for breach of contract

(Count XXI), breach of fiduciary duty (Count XXII), and negligence (Count XXIII), to the extent

each claim is based on the failure to properly notarize the Deed, Deed of Trust, and the Assignment

of Contracts, Income, Lease, Rents and Profits. According to Brickshire and Duncan, neither

Plaintiff nor the LLC sustained any injury (i.e., damages) as a result of the improper notarization on

these loan documents because the documents remain valid as between the parties, a fact which was

confirmed by the recent sale of the Condo. Defendants therefore urge that Plaintiff’s breach of

contract, fiduciary duty, and negligence claims must fail to the extent each are premised on the lack

of a proper notary. Plaintiff has since filed a response to Defendants Brickshire and Duncan’s

2 Although the supplemental response was initially filed only by Defendants FMVILA and Bennett, Defendants Brickshire and Duncan filed a motion for leave to join the supplemental response, which the Court has granted by minute order this same date. Accordingly, the Court shall treat the supplemental response as being filed on behalf of all the FMV Defendants.

5 motion. See Pl.’s Response, Docket No. [256]. As indicated therein, Plaintiff now indicates that,

upon further review, she “concurs that the recent sale of the property at issue renders moot her

allegations based on defective notarization.” Id. at 1.

DISCUSSION

A. Plaintiff’s and the FMV Defendants’ Cross-Motions on the Issue of Improper Notarization

The Court turns first to Plaintiff’s [160] Motion for Summary Judgment on the Issue of

Improper Notarization and the FMV Defendants’ [181/182] Cross-Motion on the Issue of Improper

Notarization, both of which the Court previously held in abeyance in part pending further briefing

on the issue of mootness. See Juergens v. UTS, 652 F. Supp. 2d 51, 67 (D.D.C. 2009). As set forth

in Plaintiff’s supplemental briefing, Plaintiff now concedes that the sale of the Condo has rendered

moot her request to strike the Deed and Deed of Trust from the D.C. Recorder of Deeds. See Pl.’s

Response, Docket No. [253], at 1 (“Upon further review of the facts and law at issue, Ms. Sloan

now takes the position that the sale of Mary Juergens’ condominium unit renders moot her request

to strike the deed and deed of trust from the District of Columbia’s Office of the Recorder of

Deeds.”). The FMV Defendants agree that Plaintiff’s request to strike the Deed and Deed of Trust

is now moot. See Docket No. [259]. Accordingly, based on Plaintiff’s explicit concession that her

request for relief to strike the Deed and Deed of Trust from the D.C. Recorder of Deeds is now

moot, the Court shall DENY-IN-PART AS MOOT both the Plaintiff’s [160] Motion for Summary

Judgment on the Issue of Improper Notarization as well as the FMV Defendants’ [181/182] Cross-

Motion on the Issue of Improper Notarization insofar as each motion addresses the question of

whether the Deed and Deed of Trust should be stricken from the D.C. Recorder of Deeds and shall

6 DISMISS AS MOOT Plaintiff’s request for relief, as set forth in the Fourth Amended Complaint,

for an order directing the D.C. Recorder of Deeds to strike the Deed and Deed of Trust.

As noted above, however, the FMV Defendants, in responding to Plaintiff’s supplemental

filing, also argue for the first time that the sale of the Condo at issue has rendered moot not only

Plaintiff’s specific request for relief to strike the Deed and the Deed of Trust but has also rendered

moot her lawsuit in its entirety. This argument directly challenges the Court’s subject matter

jurisdiction and — if meritorious — appears to be dispositive of this case. Presently, however, the

only discussion of this issue is contained in the FMV Defendants’ supplemental filing. Given the

significance of this argument, it is clear that more fulsome briefing on this issue is necessary and the

Court therefore declines to make a ruling based solely on the limited present record. Rather, to the

extent the FMV Defendants maintain that Plaintiff’s lawsuit is now moot, they may file a motion for

summary judgment — either jointly or separately — on this issue only by no later than April 23,

2010. Plaintiff shall then have until and including May 12, 2010, in which to file an opposition, and

Defendants shall have until and including May 24, 2010, in which to file a reply, if any.

B. Defendants Brickshire and Duncan’s Renewed Motion for Partial Summary Judgment Regarding the Absence of Damages to the Plaintiff from the Lack of a Proper Notary of Certain Document

The Court turns next to Defendants Brickshire and Duncan’s [252] renewed Motion for

Partial Summary Judgment Regarding the Absence of Damages to the Plaintiff from the Lack of a

Proper Notary of Certain Document. As explained above, Defendants Brickshire and Duncan

contend that they are entitled to summary judgment on Plaintiff’s claims for breach of contract

(Count XXI), breach of fiduciary duty (Count XXII), and negligence (Count XXIII), to the extent

each claim is based on the failure to properly notarize the Deed, Deed of Trust, and the Assignment

7 of Contracts, Income, Lease, Rents and Profits. According to Brickshire and Duncan, neither

Plaintiff nor the LLC sustained any injury (i.e., damages) as a result of the improper notarization on

these loan documents because the documents remain valid as between the parties, a fact which was

confirmed by the recent sale of the Condo. Defendants therefore urge that Plaintiff’s breach of

contract, fiduciary duty, and negligence claims must fail to the extent each are premised on the lack

of a proper notary. As explained above, Plaintiff has filed a response to Defendants Brickshire and

Duncan’s motion, in which she now “concurs that the recent sale of the property at issue renders

moot her allegations based on defective notarization.” Pl.’s Response, Docket No. [256], at 1.

Given Plaintiff’s explicit concession that her allegations based on the defective notarization

are now moot, the Court shall DENY AS MOOT Brickshire and Duncan’s [252] renewed Motion

for Partial Summary Judgment Regarding the Absence of Damages to the Plaintiff from the Lack of

a Proper Notary of Certain Document and shall DISMISS AS MOOT Plaintiff’s claims for breach

of contract (Count XXI), breach of fiduciary duty (Count XXII), and negligence (Count XXIII), to

the extent each claim is based on the failure to properly notarize the Deed, Deed of Trust, and the

Assignment of Contracts, Income, Lease, Rents and Profits.

CONCLUSION

For the reasons set forth above, the Court shall DENY-IN-PART AS MOOT both the

Plaintiff’s [160] Motion for Summary Judgment on the Issue of Improper Notarization as well as the

FMV Defendants’ [181/182] Cross-Motion on the Issue of Improper Notarization insofar as each

motion addresses the question of whether the Deed and Deed of Trust should be stricken from the

D.C. Recorder of Deeds and shall DISMISS AS MOOT Plaintiff’s request for relief, as set forth in

the Fourth Amended Complaint, for an order directing the D.C. Recorder of Deeds to strike the

8 Deed and Deed of Trust. In addition, the Court shall DENY AS MOOT Brickshire and Duncan’s

[252] renewed Motion for Partial Summary Judgment Regarding the Absence of Damages to the

Plaintiff from the Lack of a Proper Notary of Certain Document and shall DISMISS AS MOOT

Plaintiff’s claims for breach of contract (Count XXI), breach of fiduciary duty (Count XXII), and

negligence (Count XXIII), to the extent each claim is based on the failure to properly notarize the

Deed, Deed of Trust, and the Assignment of Contracts, Income, Lease, Rents and Profits. Finally,

to the extent the FMV Defendants maintain that Plaintiff’s lawsuit is now moot in its entirety, they

may file a motion for summary judgment — either jointly or separately — on this issue only by no

later than April 23, 2010. Plaintiff shall then have until and including May 12, 2010, in which to

file an opposition, and Defendants shall have until and including May 24, 2010, in which to file a

reply, if any. An appropriate Order accompanies this Memorandum Opinion.

Date: April 7, 2010

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge