Ononujuv.Va. Hous. Dev. Auth.

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLKNov 26, 2019
Civil Docket No. CL19-3819 (Va. Cir. Ct. Nov. 26, 2019)

Civil Docket No. CL19-3819

11-26-2019

Re: Kingsley Azubuike Ononuju v. Virginia Housing Development Authority


Kingsley Azubuike Ononuju
1514 Corprew Avenue
Norfolk, Virginia 23504 Godfrey T. Pinn, Jr., Esquire
Harrell & Chambliss LLP
Eighth & Main Building
707 East Main Street, Suite 1000
Richmond, Virginia 23219 Dear Mr. Ononuju and Mr. Pinn:

Today the Court rules on the plea in bar filed by Defendant Virginia Housing Development Authority ("VHDA") in response to the complaint filed by Plaintiff Kingsley Azubuike Ononuju. The complaint seeks vacation of a Norfolk General District Court unlawful detainer order—which granted VHDA possession of the house in which Ononuju is living after VHDA purchased the property at a foreclosure sale—based on extrinsic fraud.

The Court finds that the complaint fails to state sufficient facts to support a claim of extrinsic fraud. The Court further notes that this is Ononuju's third attempt to invalidate the general district court's order. The Court therefore SUSTAINS the plea in bar. In light of Ononuju's previous unsuccessful challenges regarding the validity of the unlawful detainer order and the apparent futility of an amendment to the complaint to adequately plead extrinsic fraud, the Court dismisses the complaint with prejudice.

As detailed in the Background section, in addition to the initial unlawful detainer hearing, Ononuju had a hearing on his motion to rehear the unlawful detainer action in Norfolk General District Court and a hearing on his "Motion to Vacate Possession Judgment" in a related case in this Court.

Background

Ononuju purchased real property located at 1514 Corprew Avenue in Norfolk, Virginia (the "Property") on January 24, 2014, by obtaining a loan from C&F Mortgage Corporation, which later transferred the loan to VHDA. (Pl.'s Latest Am. Compl. ¶¶ 2, 7.) The related promissory note was secured by a deed of trust (the "Deed of Trust"). (Id. ¶ 7.) Several years later, Ononuju failed to make his required mortgage payments, and VHDA began foreclosure proceedings in accordance with the Deed of Trust provisions. (Id. ¶¶ 8, 17.)

In his complaint, Ononuju references his "Latest Amended Complaint" in a related dispute before this Court, Ononuju v. Va. Housing Dev. Auth., et al., No. CL19-7959. (Compl. ¶ 5.) Based on this reference, as well as the fact that both actions are premised on the same set of allegations, the Court treats the "Latest Amended Complaint" as incorporated by reference into this action in order to provide the appropriate context.

On May 2, 2018, Evans & Bryant, PLC ("Evans"), which had been appointed as substitute trustee pursuant to the Deed of Trust, mailed a letter (the "May 2 Letter") to Ononuju, in which Evans represented that it had been requested by VHDA to collect Ononuju's outstanding mortgage debt via a foreclosure sale of the Property. (Id. ¶ 14.) The May 2 Letter indicated that Ononuju's mortgage balance repayment had been accelerated based on his mortgage loan default. (Id.) The May 2 Letter also stated that "[t]he foreclosure sale may . . . be avoided if the loan is reinstated" and that Ononuju should "contact [Evans] for the amount necessary to reinstate and payment instructions if this is a course you wish to pursue." (Id.)

On May 24, 2018, Evans mailed Ononuju another letter ("the May 24 Letter"), in which Evans provided notice of a scheduled public foreclosure sale of the Property on June 19, 2018 (the "Foreclosure Sale"). (Id. ¶ 16.) Similar to the May 2 Letter, the May 24 Letter indicated that "the sale may be avoided if the loan is reinstated" and to "contact [Evans] for the amount necessary to reinstate and payment instructions if this is a course you wish to pursue." (Id.) The Foreclosure Sale went forward as scheduled.

On June 25, 2018, Evans sent Ononuju a "NOTICE TO QUIT PREMISES," which stated that "your right to possession of the property ceased and terminated on June 19, 2018," and that VHDA is the new owner of the Property. (Id. ¶ 17.) It further informed Ononuju that "if you fail to vacate the premises on or before the expiration of five (5) days from the date of this Notice, your continued possession of the property will be deemed unlawful and eviction will ensue." (Id.)

On July 10, 2018, VHDA filed an unlawful detainer action against Ononuju in Norfolk General District Court, where VHDA sought possession of the Property as the purported property owner by virtue of the Foreclosure Sale. (Id. ¶ 18.) At the August 9, 2018, unlawful detainer hearing (the "Unlawful Detainer Hearing"), VHDA offered the "AFFIDAVIT OF JAMES A. EVANS," the substitute trustee who conducted the Foreclosure Sale (the "Affidavit"), in support of its claim for possession. (Id. ¶ 18.) Mr. Evans apparently attended the hearing. (Id. ¶ 19.) The court awarded VHDA possession of the Property (the "Possession Order"). (Id. ¶ 18.)

Ononuju noted an appeal of the unlawful detainer action, but he never posted the required appeal bond. He subsequently filed with the Norfolk General District Court a motion to rehear the unlawful detainer matter (the "Motion to Rehear"). (Pl.'s Latest Am. Compl. Ex. J.) The district court heard the Motion to Rehear and ultimately denied relief to Ononuju. (Sept. 4, 2018, Norfolk General District Ct. Order, Case No. GV18022771.)

On September 5, 2018, Ononuju filed a separate complaint in this Court challenging title to the Property and seeking, inter alia, recission of the Foreclosure Sale. (Ononuju v. Virginia Housing Development Authority, et al., Case No. CL18-7959.) On September 18, 2019, Ononuju filed in that suit a "Motion to Vacate Possession Judgment," in which he moved the Court to vacate the Possession Order, arguing that the general district court lacked jurisdiction to enter the order because he was challenging title. This Court denied the motion on December 20, 2018, because it lacked jurisdiction to address a collateral attack on the Possession Order.

Ononuju failed to timely appeal the Norfolk General District Court's unlawful detainer ruling—in which that court apparently found that there was no legitimate title dispute and that it therefore had jurisdiction to hear the unlawful detainer matter—to this Court. The Court notes that the district court had jurisdiction to determine whether a legitimate issue of title had been raised and, having found that one had not been raised, to enter the Possession Order. See Parrish v. Fed. Nat'l Mortg. Ass'n, 292 Va. 44, 51, 787 S.E.2d 116, 121-22 (2016).

Ononuju instituted this action on April 23, 2019. In his complaint, Ononuju claims that VHDA's failure to serve him a copy of the Affidavit or make him aware of it prior to the Unlawful Detainer Hearing constitutes extrinsic fraud, making the district court's order void ab initio. On that basis, Ononuju prays for the Court to vacate the Possession Order.

VHDA subsequently filed a plea in bar to Ononuju's complaint, asserting that there is no basis to find that the Possession Order is void. Ononuju thereafter filed a responsive brief. Neither party requested a hearing, so the Court will rule based on the pleadings.

In addition to the pleadings, the Court previously heard Ononuju's arguments—on other grounds—regarding why the Possession Order should be vacated.

Positions of the Parties

Ononuju's Position

Ononuju seeks to vacate the Possession Order, alleging that it was obtained through extrinsic fraud. (Pl.'s Mot. Vacate ¶ 3.) Specifically, he argues that his due process rights were violated because he was not provided a copy of the Affidavit before the Unlawful Detainer Hearing.(Id. ¶ 4.) Ononuju claims that prior to the hearing he received only the "summons for unlawful detainer" and was unaware of the Affidavit, which VHDA provided to the general district court judge at the hearing. (Id. ¶ 5.) He claims to have first seen the Affidavit when he received a certified copy of the judgment after the hearing. (Id.) According to Ononuju, the general district court relied on the Affidavit when evaluating the case and he therefore was entitled to a copy prior to the hearing. (Id.) By not being provided a copy of the Affidavit, Ononuju contends that he was unable to adequately cross-examine the affiant and prepare a proper argument for the hearing. (Id.) Consequently, he claims that withholding the Affidavit constitutes extrinsic fraud, making the unlawful detainer judgment void as a matter of law. (Id.)

In response to VHDA's plea in bar, Ononuju argues that res judicata and collateral estoppel do not apply because the Possession Order is void as a matter of law. (Pl.'s Mot. Opp. to Def.'s Plea in Bar ¶ 2.) According to Ononuju, the judgment cannot be barred by either res judicata or collateral estoppel because there has not been a final judgment on the merits. (Id. ¶¶ 3-4). By failing to be provided a copy of the Affidavit by VHDA, Ononuju claims that his due process rights were violated, asserting that the Clerk's Office's issuance of the summons and the general district court's judgment constituted state action. (Id. ¶¶ 8-9.) He further contends that it is unfair that his only means of attacking the Possession Order is a direct appeal to the circuit court. (Id. ¶ 10.) Specifically, he asserts that requiring him to post a bond is onerous because the bond is expensive and violates his due process rights to his property. (Id.)

Finally, Ononuju also claims that not providing him a copy of the Affidavit constitutes extrinsic, as opposed to intrinsic, fraud. (Id. ¶¶ 14-15.) Because he was unaware of the Affidavit, Ononuju argues that it does not matter that Mr. Evans was present for the Unlawful Detainer Hearing. (Id. ¶ 17.) He claims that, at the time of that hearing, he did not know who drafted the Affidavit or what it said; he therefore was not prepared to cross examine Mr. Evans even if he had realized that Mr. Evans was present at the hearing. (Id.) Additionally, although Ononuju understood that Evans & Bryant, PLC had been appointed as substitute trustee, none of the letters sent to him indicated which attorney was acting as the actual substitute trustee, making it impossible for him to know who to cross examine. (Id.) Finally, Ononuju argues that even if he had been provided a copy of the Affidavit at the Unlawful Detainer Hearing, it still would have been untimely because "Rule 3(V) of Supreme Court of Virginia" requires that all evidence be exchanged at least fifteen days before trial. (Id. ¶ 18.)

This appears to be a reference to the optional "Uniform Pretrial Scheduling Order" form included in the Rules of Supreme Court of Virginia. See Part 1, Form 3. There is no evidence that such an order was entered in the general district court proceeding, however. --------

VHDA's Position

VHDA emphasizes that this is Ononuju's third attempt to invalidate the Possession Order. (Def.'s Plea in Bar Pl's Order to Vacate ¶ 1.) It argues that Ononuju cannot demonstrate any fraudulent concealment that prevented him from advancing his argument during the Unlawful Detainer Hearing. (Id. ¶ 3.) Specifically, Ononuju argued at the hearing that the Foreclosure Sale was illegal because the substitute trustee failed to follow the preconditions for foreclosure as required by the Deed of Trust. (Id. ¶ 4.)

VHDA points out that, in a related case, Ononuju filed a Motion to Vacate the Possession Order ("Motion to Vacate"), which this Court denied based on a lack of subject matter jurisdiction. (Id. ¶¶ 5-6 (referencing the Court's Feb. 28, 2019, Opinion Letter in Ononuju v. Va. Housing Dev. Auth., et al., No. CL18-7959)). Specifically, the Court held that it did not have jurisdiction to hear the Motion to Vacate because the sole method to challenge the general district court judgment—based on Ononuju's argument at the time—was via a direct appeal to this Court. (Id. ¶ 7.) Because Ononuju failed to timely appeal the general district court judgment, VHDA argues that Ononuju's claim is barred by principles of res judicata and collateral estoppel. (Id. ¶ 8.)

VHDA notes that Ononuju now argues that the Possession Order was obtained through extrinsic fraud because he neither was notified of nor received a copy of the Affidavit, which was drafted by the substitute trustee appointed by VHDA to conduct the Foreclosure Sale. (Id. ¶¶ 9-10.) VHDA argues that the Affidavit was filed with the summons of unlawful detainer to commence the unlawful detainer action in Norfolk General District Court. (Id. ¶ 11.) VHDA thus denies any purposeful concealment of the Affidavit from Ononuju. (Id.)

VHDA further asserts that its conduct was not fraudulent. However, it notes that even if its actions were considered fraudulent, its conduct at most would constitute intrinsic—as opposed to extrinsic—fraud because the conduct about which Ononuju complains took place within the judicial process. (Id. ¶¶ 12-13.) VHDA claims that a court order rendered as a result of intrinsic fraud is voidable and can be attacked only via a direct appeal to the appropriate circuit court; the order cannot be collaterally attacked. (Id. ¶ 13.) VHDA emphasizes that Ononuju was given "ample opportunity" to present his case concerning the alleged illegality of the Forecloasure Sale to the general district court, including his assertion that the general district court lacked jurisdiction to award the Possession Order. (Id. ¶ 14.) It also points out that, although Ononuju claims he was denied the opportunity to examine the Affidavit before the hearing, he presented argument challenging the content of the Affidavit during both the Unlawful Detainer Hearing and the related rehearing. (Id. ¶ 15.) VHDA further asserts that Ononuju was given the opportunity to cross examine the affiant, Mr. Evans, during both proceedings in general district court. (Id. ¶ 16.) Because Ononuju failed to timely appeal the Possession Order, VHDA asserts that Ononuju's claim is barred. (Id.)

Analysis

Legal Standard

"A plea in bar presents a distinct issue of fact which, if proven, creates a bar to the plaintiff's right of recovery." Hilton v. Martin, 275 Va. 176, 179, 654 S.E.2d 572, 574 (2008). The moving party has the burden of proving the dispositive fact raised in a plea in bar. Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996). "[W]here no evidence is taken in support of a plea in bar, the trial court . . . consider[s] solely the pleadings in resolving the issue presented." Lostrangio v. Laingford, 261 Va. 495, 497, 544 S.E.2d 357, 358 (2001). As with a demurrer, the facts contained within the plaintiff's pleadings are considered true for purposes of resolving a plea in bar. Id.

In ruling on a demurrer—or on a plea in bar without an evidentiary hearing—a court may consider "any accompanying exhibit mentioned in the pleading," as well as any "documents not mentioned in the challenged pleading when the parties so stipulate." Flippo v. F & L Land Co., 241 Va. 15, 17, 400 S.E.2d 156, 156 (1991).

An order that exceeds the jurisdiction of the court is void and can be attacked in any proceeding in any court where the validity of the judgment comes into issue. Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221 (2013).

"The judgment of a court, procured by intrinsic fraud, i.e., by perjury, forged documents, or other incidents of trial related issues matieral to the judgment, is voidable by direct attack at any time before the judgment becomes final." Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983). A judgment "procured by extrinsic fraud, i.e., by conduct which prevents a fair submission of the controversy to the court, is void and subject to attack, direct or collateral, at any time." Id.

Extrinsic fraud does not include fraud relating to a "matter on which the judgment or decree was rendered" or involving an "act or testimony the truth of which was, or might have been, in [sic] issue in the proceeding before the court which resulted in the judgment that is thus assailed." Ellet v. Ellet, 35 Va. App. 97, 100, 543 S.E.2d 816, 818 (2001). "Extrinsic fraud includes such circumstances as bribery of a judge or juror, fabrication of evidence by an attorney, preventing another party's witness from appearing, intentionally failing to join a necessary party, or misleading another party into thinking a continuance has been granted." Id. at 101 (citations omitted).

Discussion

The Court has considered the pleadings, argument presented at the Hearing, and applicable authorities. The Court now rules as follows. A. The Court Has Jurisdiction to Determine Whether a Norfolk General District Court Final Order Is Void.

As an initial matter, the Court addresses whether it has jurisdiction to determine if a Norfolk General District Court final order is void other than via a direct appeal. The Court ultimately holds that it does.

A court's jurisdiction is "presumed unless disproved by extrinsic evidence or the record itself." Bloodworth v. Ellis, 221 Va. 18, 24, 267 S.E.2d 96, 100 (1980). Under Virginia law, a court order can be "void" under two different scenarios. Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221 (2013). An order is "void" if it is either void ab initio, meaning it was void from the time it came into existence, or voidable, meaning it contains reversible error. Id. Although both situations involve an order that ultimately may be deemed invalid by a court, a voidable order is not invalid until it is "directly and successfully challenged." Id.

The Virginia Supreme Court has held that "[a]n order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could not 'lawfully adopt.'" Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001). Such an order is considered "a 'complete nullity' that may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner." Id. at 52, 541 S.E.2d at 541.

Here, Ononuju alleges that the Possession Order is void ab initio based on extrinsic fraud. The Court therefore holds that it has jurisdiction to determine whether that order, issued by the Norfolk General District Court, is void. B. The Complaint Fails to Allege Sufficient Facts to Support Extrinsic Fraud.

The Supreme Court of Virginia has defined extrinsic fraud as conduct that obstructs the true presentation of the controversy to the court. Jones v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983). It does not include disputed matters central to the case nor does it include contested acts or testimony presented at trial that the court deems dispositive to its judgment. Ellet v. Ellet, 35 Va. App. 97, 100, 543 S.E.2d 816, 818 (2001). A judgment rendered as a result of extrinsic fraud is void ab initio and may be challenged by direct or collateral attack by any court at any time. Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487, 490 (1993).

Intrinsic fraud, by contrast, includes perjury, forgery, and other acts meant to belie the facts presented to the court and judged by the trier of fact. Id. Unlike judgments rendered through extrinsic fraud, judgments obtained through intrinsic fraud are voidable only by a direct attack or appeal prior to the judgment becoming final. Jones, 224 Va. at 607, 299 S.E.2d at 508. Virginia law does not permit collateral attacks on judgments procured by intrinsic fraud because the parties have a duty to expose intrinsic fraud to the trier of fact through cross-examination and impeachment at trial. Id. at 326-27, 429 S.E.2d at 490.

To support his claim that the Possession Order is void ab initio, Ononuju alleges that the order was obtained as a result of extrinsic fraud. Specifically, he claims that VHDA failed to serve him a copy of the Affidavit or make him aware of it prior to the Unlawful Detainer Hearing, thereby precluding him from providing an accurate representation of facts to the general district court. Even if Ononuju had not been served a copy of the Affidavit with the summons for unlawful detainer, as he claims, the Court is unaware of any requirement to provide the opposing party a copy of an affidavit in advance of a general district court hearing.

Extrinsic fraud requires an active out-of-court misrepresentation, such as bribery of a judge, bribery of a juror, or fabrication of evidence by an attorney. Ellet, 35 Va. App. at 101, 543 S.E.2d at 818. In other words, extrinsic fraud requires some action outside of or collateral to the central issues that are examined and determined during the judicial process. McClung v. Folk, 126 Va. 259, 269, 101 S.E. 345, 348 (1919). Ononuju's implications of perjury at trial and fraud between the parties—assuming such actions occurred, as the Court must for purposes of ruling on the plea in bar—do not constitute out-of-court misrepresentations. Ellet, 35 Va. at 102, 543 S.E. 2d at 818. The fraud that Ononuju alleges occurred within the judicial process; thus, at best the actions about which Ononuju complains constitute intrinsic fraud that was subject to cross examination at the Unlawful Detainer Hearing. Under Virginia law, Ononuju therefore was required to directly appeal the district court's ruling in order to challenge the alleged fraud. Ononuju failed to properly appeal the unlawful detainer judgment, barring his claim before this Court.

The Court finds that Ononuju's complaint fails to allege sufficient facts to support a claim of extrinsic fraud.

Conclusion

Because the complaint fails to state sufficient facts to support a claim of extrinsic fraud, the Court SUSTAINS Defendant Virginia Housing Development Authority's plea in bar. In light of Ononuju's prior unsuccessful challenges regarding the validity of the unlawful detainer order of possession, as well as the futility of an amendment to the complaint to adequately plead extrinsic fraud, the Court dismisses the complaint with prejudice.

Attached is an Order incorporating the Court's ruling. Any objections shall be filed with the Court within fourteen days.

Sincerely,

/s/

David W. Lannetti

Circuit Court Judge DWL/bgg
Enclosure VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF NORFOLK KINGSLEY AZUBUIKE ONONUJU, Plaintiff, v. VIRGINIA HOUSING DEVELOPMENT AUTHORITY, Defendant. FINAL ORDER

Counsel for Defendant Virginia Housing Development Authority filed a plea in bar in response to the complaint filed by Plaintiff Kinglsey Azubuike Ononuju. For reasons stated in its November 26, 2019, Letter Opinion, the Court SUSTAINS Defendant's plea in bar and DISMISSES THE COMPLAINT WITH PREJUDICE.

Endorsements are waived pursuant to Rule 1:13 of the Rules of the Supreme Court of Virginia. Any objections to this Order shall be filed within fourteen days. The Clerk shall send a copy of this order to Plaintiff Kingsley Azubuike Ononuju and Godfrey T. Pinn, Jr., Esquire, counsel for Defendant.

Entered: November 26, 2019

/s/_________

David W. Lannetti, Judge