UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2034

ANTHONY L. JONES; CHERYSE D. GLENN JONES,

Plaintiffs - Appellants,

v.

FULTON BANK, N.A.,

Defendant – Appellee,

and

SAMUEL I. WHITE, P.C.,

Defendant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, District 

Judge. (3:13-cv-00126-JRS)

Submitted: March 28, 2014 Decided: April 9, 2014

Before SHEDD, AGEE, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Henry W. McLaughlin, III, LAW OFFICE OF HENRY MCLAUGHLIN, P.C., 

Richmond, Virginia, for Appellants. Brendan D. O’Toole, 

WILLIAMS MULLEN, Richmond, Virginia; William L. Stauffer, Jr., 

WILLIAMS MULLEN, Newport News, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Anthony L. Jones and Cheryse D. Glenn-Jones (“the 

Joneses”) appeal the district court’s order granting Fulton 

Bank, National Association’s (“Defendant”) motion to dismiss 

their action for damages and to quiet title based on Defendant’s 

alleged breaches of the deed of trust securing their mortgage 

loan. Finding no error, we affirm. 

We review de novo the district court’s dismissal for 

failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Sec’y of State for Defence v. Trimble Navigation, 

Ltd., 484 F.3d 700, 705 (4th Cir. 2007). “[W]hen ruling on a 

defendant’s motion to dismiss, a judge must accept as true all 

of the factual allegations contained in the complaint.” 

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, “[f]actual 

allegations must be enough to raise a right to relief above the 

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007). The complaint must contain “enough facts to state a 

claim to relief that is plausible on its face.” Id. at 570. 

“A deed of trust is construed as a contract under 

Virginia law.” Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 200 

(Va. 2012). The elements of breach of contract in Virginia are: 

“(1) a legally enforceable obligation of a defendant to a 

plaintiff; (2) the defendant’s violation or breach of that 

obligation; and (3) injury or damage to the plaintiff caused by 
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the breach of obligation.” Filak v. George, 594 S.E.2d 610, 614 

(Va. 2004). 

The Joneses first argue that the district court erred 

in dismissing their breach of contract claim based on 

Defendant’s failure to send a proper thirty-day pre-acceleration 

notice. While a deficient pre-acceleration notice constitutes a 

breach of contract, see Bayview Loan Servicing, LLC v. Simmons,

654 S.E.2d 898, 901 (Va. 2008), a plaintiff must still plead 

damages due to that breach. Filak, 594 S.E.2d at 614. The 

district court’s dismissal of this claim hinged on its finding 

that the Joneses did not sufficiently plead damages due to 

Defendant’s alleged breach. On appeal, the Joneses focus their 

argument on whether Defendant’s allegedly deficient preacceleration notice constitutes a breach but they do not dispute 

the district court’s finding on the damages element. Thus, we 

affirm the district court’s dismissal of this breach of contract 

claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 

(4th Cir. 1999) (concluding that issues not raised in opening 

brief are deemed abandoned).

The Joneses next argue that the district court erred 

in dismissing their second breach of contract claim, in which 

they claimed that Defendant breached the deed of trust by 

improperly appointing Samuel I. White, P.C. (“White”) as 

substitute trustee and instructing him to commence foreclosure 
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proceedings. The district court found that the Joneses lacked 

standing to dispute Defendant’s appointment of White as 

substitute trustee. On appeal, the Joneses simply contend that 

they have standing to challenge the appointment because the 

foreclosure sale did not comply with the deed of trust. They do 

not, however, argue that the district court erred in its 

analysis of the causation and redressability elements of the 

test for standing. See Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560 (1992) (stating elements of standing). We therefore 

affirm the district court’s dismissal of this breach of contract 

claim. See Edwards, 178 F.3d at 241 n.6.

Next, the Joneses dispute the district court’s 

dismissal of their third claim, breach of the implied covenant 

of good faith and fair dealing under the Uniform Commercial Code 

(“UCC”), as adopted by Virginia, which they based on Defendant’s 

alleged breaches of contract discussed supra. The Joneses’

claim fails as a matter of law for two reasons. First, the UCC 

does not apply to transfers of real property. Greenwood 

Assocs., Inc. v. Crestar Bank, 448 S.E.2d 399, 402 (Va. 1994). 

Second, even if the deed of trust falls under the UCC as the 

Joneses argue, their claim fails because it was pled as a 

separate tort claim. See Charles E. Brauer Co. v. NationsBank 

of Va. N.A., 466 S.E.2d 382, 385 (Va. 1996) (holding that “the 

failure to act in good faith . . . does not amount to an 
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independent tort. The breach of the implied duty under the UCC 

gives rise only to a cause of action for breach of contract.”).

Finally, the Joneses contend that the district court 

erred in finding that they were required to pay off the deed of 

trust before bringing an action to quiet title. To assert a 

claim for quiet title, the plaintiff must allege that he has 

satisfied his legal obligations to the party in interest and, 

thus, maintains a superior interest in the property. Tapia v. 

U.S. Bank, N.A., 718 F. Supp.2d 689, 700 (E.D. Va. 2010), aff’d, 

441 F. App’x 166 (4th Cir. 2010) (No. 10-1856). The Joneses 

have not alleged that they have satisfied their obligations; 

thus, their quiet title action must fail. 

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED