UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1214

ROGER JALDIN; JANET JALDIN,

Plaintiffs - Appellants,

v.

RECONTRUST COMPANY, N.A.; BANK OF AMERICA, N.A.; JOHN DOE,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Anthony J. Trenga, 

District Judge. (1:12-cv-01117-AJT-JFA)

Submitted: August 13, 2013 Decided: August 29, 2013

Before GREGORY, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory Bryl, BRYL LAW OFFICES, Washington, D.C., for 

Appellants. Joseph Jason Patry, BLANK ROME LLP, Washington, 

D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Roger and Janet Jaldin appeal the district court’s 

dismissal of their claims for declaratory and injunctive relief, 

breach of contract, removal of cloud on title, and violations of 

the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq. and 

the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 

et seq. Finding no error, we affirm.

I.

On May 9, 2007, Mr. Jaldin executed a deed of trust 

securing a loan on the property located at 7370 Kincheloe Road 

in Clifton, Virginia. The deed of trust, which secured a 

promissory note in the amount of $700,000, named “Countrywide 

Home Loans, Inc., dba America’s Wholesale Lender” as the lender. 

Paragraph 22 of the deed of trust establishes that, in the event 

of default, the “Lender shall give notice to Borrower prior to 

acceleration.” J.A. 53. The deed of trust specifies that 

notice of intent to accelerate must allow the Borrower thirty 

days from the date of receipt of the notice to cure the default.

In November 2010, BAC Home Loans Servicing, DefendantAppellee Bank of America, N.A.’s (BANA) predecessor in interest, 
3

sent a notice of intent to accelerate to the Jaldins1 stating 

that they had until December 16, 2010, to cure their default by 

paying the overdue amount of $11,927.98. The notice, dated 

November 16, 2010, arrived on November 22, 2010. The Jaldins 

did not cure the default. However, BAC Home Loans Servicing did 

not take any action against the Jaldins or the subject property.

On October 26, 2011, BANA executed a substitution of 

trustees for the deed of trust, appointing Defendant-Appellee 

ReconTrust Company, N.A.,2 based in Texas, and ALG Trustee, based 

in Virginia, as the new deed of trust trustees. On October 27, 

2011, ReconTrust sent the Jaldins a letter stating that it was 

accelerating the loan referenced in the deed of trust. In 

November or December 2011, April 2012, and July or August 2012, 

ReconTrust sent Jaldin separate notices of upcoming trustee’s 

sales at which the property would be sold. However, ReconTrust 

never held a trustee’s sale nor sold the property. The Jaldins 

retain possession, even though they have not made a payment 

since September 2010.

 1 Even though the deed of trust and related documents 

identify Mr. Jaldin as the Borrower, the first amended complaint 

states that Jaldin’s wife, Janet, also has an interest in the 

property as a title holder. She is a named Plaintiff in this 

case. As such, we treat the Jaldins as a unit for purposes of 

our analysis.

2 ReconTrust is a wholly-owned subsidiary of BANA.
4

In December, 2011, upon the Jaldins’ request, BANA sent a 

letter to the Jaldins identifying the owner of the note as “Bank 

of America, N.A., Successor by merger to BAC Home Loan 

Servicing, LP FKA Countrywide Home Loan Servicing, LP for the 

Benefit of the Halo 2007-2 Trust.” J.A. 25. The Jaldins, 

however, did not find BANA listed on the publicly available

documents associated with the HALO 2007-2 Trust. On April 25, 

2012, the Jaldins’ counsel wrote to BANA, again requesting the 

identity of the owner of the debt. BANA responded, stating that 

the owner of the debt was “Deutsche Bank National Trust Company,

as Trustee for holders of the HSI Asset Loan Obligation Trust 

2007-2.” J.A. 236.

On August 24, 2012, the Jaldins filed suit against BANA, 

ReconTrust, and a John Doe Defendant in the Circuit Court of 

Fairfax County, Virginia, seeking declaratory and injunctive 

relief, removal of cloud on title, breach of contract, and 

various TILA and FDCPA violations. BANA and ReconTrust removed 

the case to federal court and made a motion to dismiss pursuant 

to Federal Rule of Civil Procedure 12(b)(6).

On November 9, 2012, the district court granted the motion 

to dismiss with leave to amend. After the Jaldins filed their 

Amended Complaint, BANA and ReconTrust again moved to dismiss. 

The district court granted the motion and denied the Jaldins’ 
5

motion for leave to amend. The Jaldins filed a timely appeal of

which we have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review a district court’s dismissal of a complaint 

pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo, 

accepting all factual allegations in the complaint as true and 

drawing all reasonable inferences in favor of the non-moving 

party. Kensington Volunteer Fire Dep’t, Inc. v. Montgomery 

Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012).

A.

As a preliminary matter, BANA and ReconTrust argue that the

claims for injunctive and declaratory relief are moot because 

they have cancelled the trustee sale. Appellee’s Br 11. The 

Constitution authorizes federal courts to hear “Cases” and 

“Controversies,” but forbids consideration of matters that are 

no longer “live” or where the parties “lack a legally cognizable 

interest in the outcome.” U.S. Const. art. III, § 2; Powell v. 

McCormack, 395 U.S. 486, 496 (1969). There is a wellestablished exception to the mootness doctrine, however, where a 

controversy is “capable of repetition, yet evading review.” S. 

Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 

515 (1911). Even though currently there is no pending sale of 

the Jaldins’ property, if we find these claims moot, BANA and 
6

ReconTrust would be able to schedule and execute such a sale in 

short order. Indeed, the Jaldins allege facts indicating that 

BANA and ReconTrust have initiated and canceled at least three 

trustee sales. There is no indication that BANA and ReconTrust 

do not have plans to initiate such a sale upon resolution of 

this case. Thus, we perceive no basis for concluding that the 

Jaldins’ claims for injunctive and declaratory relief are moot.

B.

The Jaldins first argue that ReconTrust cannot act as a 

deed of trust trustee with the power to execute a foreclosure in 

Virginia because Virginia Code § 55-58.1 does not allow out-ofstate entities to serve as trustees of a security trust. 

Appellant’s Br. 13-26. BANA and ReconTrust urge us to find that 

the 12 U.S.C. § 92(a) of the National Banking Act (NBA) preempts 

Virginia Code § 55-58.1. Appellee’s Br. 12-24.

Preemption is fundamentally a question of congressional 

intent. English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990). 

There are three types of federal preemption: (1) express 

preemption, where Congress explicitly establishes its intent to 

preempt state law; (2) field preemption, where Congress 

pervasively occupies an area of law such that there is no room 

left for states to supplement the relevant federal law, and; (3) 

conflict preemption, where state law actually conflicts with 

federal law. Decohen v. Capital One, N.A., 703 F.3d 216, 223 
7

(4th Cir. 2012). Here, BANA and ReconTrust restrict their 

argument to conflict preemption. Courts will find conflict 

preemption where it is impossible for a party to comply with 

both state and federal law or where state law “stands as an 

obstacle to the accomplishment and execution of the full 

purposes and objectives of Congress.” English, 496 U.S. at 79 

(internal quotations omitted).

The Supreme Court has clarified that “grants of both 

enumerated and incidental ‘powers’ to national banks [are] 

grants of authority not normally limited by, but rather 

ordinarily pre-empting, contrary state law.” Barnett Bank of 

Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 32 (1996). The NBA 

grants national banks the power to engage in mortgage lending. 

12 U.S.C. § 371(a); Watters v. Wachovia Bank, N.A., 550 U.S. 1, 

12 (2007). “A state law may not significantly burden a national 

bank’s own exercise of its real estate lending power, just as it 

may not curtail or hinder a national bank’s efficient exercise 

of any other power.” Id. at 13. As the Eighth Circuit 

explained in a recent decision, “it is . . . clear that the 

power to foreclose is incidental to the express power to make 

mortgage loans.” JPMorgan Chase Bank, N.A. v. Johnson, 719 F.3d 

1010, 1017 (8th Cir. 2013). Indeed, “[t]he power to engage in 

real estate lending would be rendered a nullity if national 
8

banks could not also foreclose when the borrower defaulted.” 

Id. at 1018 (internal quotations omitted).

ReconTrust is authorized by the Office of the Comptroller 

of the Currency (OCC) as a national bank. Section 92a(a) of the 

NBA states that the OCC may grant authority to national banks to 

act as “trustee,” and in all other “fiduciary capacit[ies].” 12 

U.S.C. § 92a(a). However, Virginia Code § 55-58.1(2) prevents a 

national bank that does not have its principal office in 

Virginia from acting as the trustee of a security trust. As 

such, Virginia law stifles the ability of a national bank such 

as ReconTrust from acting as a deed of trust trustee and from 

executing foreclosures. Therefore, Virginia law “substantially 

interferes” with ReconTrust’s ability to execute a power 

incidental to its express mortgage lending powers under the NBA. 

See JPMorgan Chase Bank, 719 F.3d at 1018.

It is true, as the Jaldins argue, that the NBA also 

subjects national banks to state laws, but only insofar as 

state-based competitors are subject to the same laws. 12 U.S.C. 

§ 92a(b). Section 92a(b) establishes that

[w]henever the laws of such State authorize or permit 

the exercise of any or all of the foregoing powers by 

State banks, trust companies, or other corporations 

which compete with national banks, the granting to and 

the exercise of such powers by national banks shall 

not be deemed to be in contravention of State or local 

law within the meaning of this section.
9

Because Virginia Code § 55-58.1 grants state banks, but not 

national banks that do not have their principal office in 

Virginia, the power to serve as trustee of a security trust, the 

NBA preempts the law. See also Cox v. ReconTrust Co., N.A., 

2011 WL 835893, at *3 – 5 (D. Utah Mar. 3, 2011) (unpublished) 

(explaining that where state law gives trustee powers to state 

entities it does not give to national banks, the NBA preempts 

the state law). The OCC, the agency authorized to implement the 

NBA, has issued interpretive letters that provide additional 

support for this conclusion. A 1995 interpretive letter 

establishes that “[a] state may limit national banks from 

exercising any or all fiduciary powers in that state, but only 

if it also bars its own institutions from exercising the same 

powers.” OCC Interpretive Letter No. 695, 1995 WL 788827, at *5 

(1995); see also OCC Interpretive Letter No. 1103, 2008 WL 

7448056, at *2 (2008) (explaining that the NBA preempted a North 

Carolina law that placed requirements on out-of-state banks 

exercising fiduciary duties that it did not place on state banks 

exercising fiduciary duties).

The Jaldins argue that the NBA does not preempt § 55-58.1 

because deed of trust trustees are not true trustees or 

fiduciaries within the coverage of the NBA. Appellant’s Br. 18. 

As such, they urge us to find that ReconTrust cannot derive 
10

authority to engage in debt collection by foreclosure by virtue 

of its permit from the OCC. Id. at 23.

Even if we find that reference to “trustees” in § 92a(a) of 

the NBA refers to a different type of trustee, deed of trust 

trustees fit within the parameters of the catch-all provision of 

§ 92a(a) which applies the NBA to national banks serving in “any 

other fiduciary capacity.” The Supreme Court of Virginia has 

repeatedly explained that deed of trust trustees have fiduciary 

duties. Smith v. Credico Indus. Loan Co., 362 S.E.2d 735, 736 

(Va. 1987) (“A trustee under a deed of trust is a fiduciary for 

both debtor and creditor and must act impartially between 

them.”) (citing Whitlow v. Mountain Trust Bank, 207 S.E.2d 837, 

840 (Va. 1974)).3 Further, Virginia law governing fiduciaries 

includes provisions applying explicitly to deed of trust 

trustees. See Va. Code. Ann. § 64.2-1423.

We find that Virginia Code § 55-58.1 “stands as an obstacle 

to the accomplishment and execution of the full purposes and 

objectives of Congress” because it interferes with ReconTrust’s 

 3 The Jaldins also cite to a Virginia Supreme Court case, 

Warner v. Clementson, 492 S.E.2d 655, 657 (Va. 1997), to support 

the contrary proposition that deed of trust trustees are not 

bound by fiduciary duties. However, the court in that case 

distinguished Smith and Whitlow by explaining that those cases 

involved an action by a debtor against trustees while Warner

dealt with a case by a guarantor against a trustee. Id. at 657 

n.3. Given that the Jaldins are debtors, not guarantors, Smith

and Whitlow provide the relevant authority in this case.
11

authority under the NBA to act as a deed of trust trustee and to 

execute foreclosures -- a power incidental to its real estate 

lending power. See English, 496 U.S. at 79; JPMorgan Chase 

Bank, 719 F.3d at 1017-18.

C.

The Jaldins next argue that the district court improperly 

dismissed their claims for breach of contract because BANA and 

ReconTrust did not comply with the terms of the deed of trust. 

Appellant’s Br. 27-31. Specifically, they complain that BANA 

and ReconTrust improperly drafted and delivered acceleration and 

trustee sale notices. Id. at 27.

BANA’s predecessor in interest appears to have sent a 

notice of intent to accelerate to the Jaldins without providing 

adequate time to cure. However, the Jaldins fail to show how 

any such violation has damaged them. See Filak v. George, 594 

S.E.2d 610, 614 (Va. 2004) (explaining that “injury or damage to 

the plaintiff caused by the breach of the obligation” is an 

element of any action for breach of contract). There has been 

no foreclosure and the Jaldins remain in possession of the 

property. Their contention that the breach in the terms of the 

deed of trust damaged them because it forced them to hire 

counsel and other “professionals” is unavailing. There does not 

appear to be any dispute that the Jaldins were in default of 

their loan. Nothing establishes that they hired counsel and 
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professionals because the notice of intent to accelerate 

provided too little time to cure. See Filak, 594 S.E.2d at 614. 

Nor do the Jaldins provide any factual support in their 

complaint for their allegation that the breach caused “emotional 

distress, embarrassment, and loss of enjoyment of life.” See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that a 

pleading that “tenders naked assertions devoid of further 

factual enhancement” will not survive a motion to dismiss 

(internal quotations omitted)). We find no error in the 

district court’s decision to dismiss the Jaldins’ claims for 

breach of contract.

D.

The Jaldins next argue that the district court erred in 

dismissing its TILA claims that alleged a failure to “disclose 

the name [of the owner of the debt] either directly (under 

§ 1641(g)) or through [BANA] (under § 1641(f)(2)).” Appellant’s 

Br. 32. TILA requires that “[u]pon written request by the 

obligor, the servicer shall provide the obligor, to the best 

knowledge of the servicer, with the name, address, and telephone 

number of the owner of his obligation or the master servicer of 

the obligation.”4 15 U.S.C. § 1641(f)(2).

 4 TILA also provides that a “new owner or assignee of [the] 

debt” must provide identifying information to the borrower upon 

request. 15 U.S.C. § 1641(g).
13

According to the Jaldins’ complaint, when they made written 

request for clarification pursuant to TILA, BANA’s December 2, 

2011, response identified the owner of the debt as “Bank of 

America, N.A. . . . for the benefit of the HALO 2007-2 Trust.” 

J.A. 236. In response to a second request, BANA sent a letter 

stating that the owner of the debt was “Deutsche Bank National 

Trust Company, as Trustee for holders of the HSI Asset Loan 

Obligation Trust 2007-2.” While BANA may have failed in its 

first response to identify Deutsche Bank, each response to the 

Jaldins identified the HALO Trust as the ultimate owner of the 

debt. See O’Dell v. Deutsche Bank Nat. Trust Co., No. 1:12-cv985, 2013 WL 2389874, at *12 (E.D. Va. May 30, 2013) 

(unpublished) (finding that where a loan was placed in a trust, 

the trust was the owner of the debt). Further, the Jaldins’ 

complaint admits that the publicly available documents for the 

HALO 2007-2 trust identified Deutsche Bank as trustee for the 

HALO 2007-2 trust. Therefore, we find that BANA’s responses, 

while not a model of clarity, were sufficient under TILA.

The Jaldins’ TILA claims also fail because they made no 

showing of detrimental reliance. Detrimental reliance is an 

element of a TILA claim for actual damages. Turner v. 

Beneficial Corp., 242 F.3d 1023, 1026 (11th Cir. 2001); Santos 

v. Fed. Nat’l Mortg. Ass’n, 889 F. Supp. 2d 1363, 1368 (S.D. 

Fla. 2012) (dismissing TILA claim under § 1641(f)(2) for failure 
14

to plead sufficient facts supporting detrimental reliance). The 

Jaldins’ claims for damages under TILA do not include any 

explanation of how the alleged violation caused detrimental 

reliance. As such, we conclude that the district court did not 

err in dismissing the Jaldins’ TILA claims.

E.

The Jaldins’ next argue that ReconTrust violated the FDCPA 

by threatening to take non-judicial action when it had “no right 

to do so,” because ReconTrust was acting as an out-of-state deed 

of trust trustee. Appellant’s Br. 35. Further, they allege 

that BANA violated the FDCPA by falsely claiming it was the 

owner of the Jaldins’ debt. Id. As explained above, the NBA 

authorized ReconTrust to take foreclosure action against the 

Jaldins. Further, BANA’s response to the Jaldins’ request for 

clarification regarding the owner of their debt accurately 

identified the HALO 2007-2 Trust. Because we have already 

addressed these issues, we need not recycle the analysis to 

dispose of the Jaldins’ FDCPA claims.

Similarly, we need not address the Jaldins’ claim that the 

district court erred when it dismissed their “remove cloud on 

title” claim. That claim rested on the Jaldins’ assertion that 

BANA unlawfully appointed ReconTrust as the substitute trustee 

of the deed of trust. Again, ReconTrust derives its relevant 

authority from the NBA, which preempts Virginia Code 55-58.1 
15

insofar as it prevented ReconTrust from acting in this capacity. 

We find that the district court committed no error when it 

dismissed the Jaldins’ claims for violation of the FDCPA and 

removal of cloud on title.

III.

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid in the decisional process. For 

the reasons stated above, the ruling of the district court 

granting BANA and ReconTrust’s motion to dismiss is

AFFIRMED.