VIRGINIA:

IN THE GENERAL DISTRICT COURT OF LOUDOUN COUNTY

ZOYA INVESTMENTS LLC., )

NORTH STAR PROPERTIES LLC., )
BELMONT REAL ESTATE LLC. )
)
Plaintiffs, )
) Case No. GV17012598-00
v. )
)
ROBERT E. KENNER JR., AMY C. )
KENNER, et al. )
)
Defendants, )

DEFENDANTS MOTION TO DISMISS UNLAWFUL DETAINER

REQUEST TO BE PLACED ON CONTESTED DOCKET

COMES NOW Robert E. Kenner Jr. and Amy C. Kenner Defendants and respectfully

moves this court to dismiss the Unlawful Detainer proceeding against them on the following

basis:

1. Zoya Investments LLC, and North Star Properties LLC, are not recorded as

rightful owners of the property.

2. Loudoun County Land Records Recording Division shows the property being

owned by Belmont Real Estate LLC (Exhibit “A”).

3. Zoya Investments LLC and North Star Properties LLC have no legal interest in

the property on file with the Loudoun County Land Recording Division (Exhibit “A”).

Therefore, Zoya Investments LLC and North Star Properties LLC have no “justiciable interest”

in this proceeding. In order to have a "justiciable interest" in a proceeding, the plaintiff must
demonstrate an actual controversy between the plaintiff and the defendant, such that his rights

will be affected by the outcome of the case Cupp v. Board of Supervisors, 227 Va. 580, 589, 318

S.E.2d 407, 411 (1984). The general test of standing in Virginia is whether a party has sufficient

interest in the subject matter as to assure that the litigants will be true adversaries and that the

issues will be fully developed. Weichert Co. v. First Virginia Bank, 246 Va. 108 (1993). An

individual or entity does not acquire standing to sue in a representative capacity by asserting the

rights of another, unless authorized by statute to do so. See, e.g.VA Code §§ 8.01-69, 20-88.45,

37.1-141 (2016).

4. Defendant’s loan was a FHA loan, and as such, it is governed by the United States

Department of Housing and Urban Development (“HUD”) regulations requiring mortgagees of

FHA-insured loans to pursue loss mitigation prior to instituting foreclosure actions.

5. Paragraph 9(d) of the Deed of Trust (Exhibit “B”), specifically states “in many

circumstances regulations issued by the Secretary will limit Lenders rights, in the case of

payment defaults, to require immediate payment in full and foreclose if not paid. This Security

Instrument does not authorize acceleration or foreclose if not permitted by regulations of the

Secretary”.

6. Mortgagee was limited by HUD regulations of foreclosing prior to any attempts to

prevent such action by the mortgagee.

7. Paragraph 14 of the Deed of Trust (Exhibit “B”), specifically states “the Security

Instrument shall be governed by federal law and the law of the jurisdiction in which the Property

is located”.

8. Therefore, the Security Instrument is subject to 12 C.F.R. 1042(g) which

specifically states:
 Prohibition on foreclosure sale. If a borrower submits a complete loss mitigation
application after a servicer has made the first notice or filing required by
applicable law for any judicial or non-judicial foreclosure process but more than
37 days before a foreclosure sale, a servicer shall not move for foreclosure
judgment or order of sale, or conduct a foreclosure sale, unless:

(1) The servicer has sent the borrower a notice pursuant to paragraph (c)(1)(ii) of
this section that the borrower is not eligible for any loss mitigation option and the
appeal process in paragraph (h) of this section is not applicable, the borrower has
not requested an appeal within the applicable time period for requesting an
appeal, or the borrower's appeal has been denied;

(2) The borrower rejects all loss mitigation options offered by the servicer; or

(3) The borrower fails to perform under an agreement on a loss mitigation option.

9. The foreclosure of Defendants Property is invalid because the Deed of Trust

is subject to 12 C.F.R. 1042(g) and Defendants did submit a complete loss mitigation package

more than 37 days before the foreclosure sale which prohibits foreclosure of the Property.

10. Defendants Security Instrument is also subject to 24 C.F.R. 203.604(b) which is

unambiguous in its requirement that “the mortgagee, [in this case Wells Fargo] must have a face-

to-face interview with the mortgagor [the Defendants], or make a reasonable effort to arrange such

a meeting, before three full installments due on the mortgage are unpaid”. The regulations,

specifically 24 C.F.R. §203.604(d), is quite clear in stating that “A reasonable effort to arrange a

face-to-face meeting with the mortgagor shall consist at a minimum of one letter sent to the

mortgagor certified by the Postal Service as having been dispatched. Such a reasonable effort to

arrange a face-to-face meeting shall also include at least one trip to see the mortgagor at the

mortgaged property, unless the mortgaged property is more than 200 miles from the mortgagee,

its servicer, or a branch office of either, or it is known that the mortgagor is not residing in the

mortgaged property.”
 11. Mortgagee did not comply with 24 C.F.R. 203.604(b) by not conducting a face to

face meeting with Defendants prior to foreclosure.

12. On appeal the Supreme Court of Virginia’s recent decision in Parrish v. Fed.

Nat’l Mortgage Ass’n, 787 S.E.2d 116, 120 (Va. 2016) decided that when a “legitimate”

question is raised about the validity of a foreclosure, a general district court no longer has

jurisdiction over the case because it does not have the power to decide questions of ownership.

Therefore, the case must be dismissed without prejudice.

13. Defendants are raising a legitimate question of the validity of the foreclosure as

the mortgagee failed to comply with 12 C.F.R. 1042(g) and 24 C.F.R. 203.604(b).

14. A trustee's power to foreclose is conferred by the deed of trust. Fairfax County

Redevelopment & Hous. Auth. v. Riekse, 281 Va. 441, 445-46, 707 S.E.2d 826, 829 (2011). That

power does not accrue until its conditions precedent has been fulfilled. See Bayview, 275 Va. at

121, 654 S.E.2d at 901. The fact that a borrower is in arrears does not allow the trustee to

circumvent the conditions precedent.

15. Plaintiffs Unlawful Detainer action must be dismissed as this Honorable Court

lacks the jurisdiction to decide questions of ownership pursuant to the ruling by the Virginia

Supreme Court in Parrish v. Fed. Nat’l Mortgage Ass’n, 787 S.E.2d 116, 120 (Va. 2016).

16. Ownership of this Property is in question.

 WHEREFORE Plaintiffs pray this Honorable Court dismisses the Unlawful Detainer

Action and rules the sale void due to the mortgagees’ failure to follow conditions precedent prior

to the foreclosure.

Respectfully Submitted,

Robert E. Kenner Jr., Pro Se

15651 Limestone Branch Place
Leesburg, VA 20176

Amy C. Kenner, Pro Se

15651 Limestone Branch Place
Leesburg, VA 20176
 CERTIFICATE OF SERVICE

I certify that on this day of 2017 a copy of the foregoing answer

was sent by U.S. first class mail to the following:

Forrest E. White P.C.

4 Loudoun St. SE
Leesburg, VA 20175
(703) 737-3770
Attorney for Plaintiffs

Robert E. Kenner Jr., Pro Se

15651 Limestone Branch Place
Leesburg, VA 20176

Amy C. Kenner, Pro Se

15651 Limestone Branch Place
Leesburg, VA 2016
EXHIBIT “A”
EXHIBIT “B”