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Alternate holding not appealed in mortgage case

Where the trial court issued two different rationales when dismissing appellant’s mortgage and foreclosure dispute with a bank, “appellant’s ‘failure to address one of the holdings results in a waiver of any claim of error with respect to the court’s decision on that issue.’”


Appellant Mueller alleges that in 2007, when she refinanced her mortgage, she was told that her monthly payments would be $1,400 on a $307,000 loan. “Mueller signed the mortgage documents without reviewing them, but did not sign the related deed of trust. Countrywide [Home Loans] did not provide Mueller a copy of the mortgage documents.

“Countrywide filed a deed of trust with the circuit court allegedly bearing Mueller’s forged signature.”

She later learned that the loan was for $324,000 and the monthly payment was $3,800.

She was assured a correction would be made “but no correction was made. Despite this issue, Mueller made multiple mortgage payments at the higher amount and continued to ask for the correction.”

Bank of America eventually acquired her loan.

“Mueller applied for benefits under the Home Affordable Modification Program. Upon her application, a Bank of America representative told Mueller to stop making mortgage payments while her application was processed.

“HSBC [the appellee] later acquired the mortgage loan from Bank of America, and appointed SLS as the mortgage servicer on this account. Because Mueller had ceased making mortgage payments, SLS treated her mortgage loan as if it were in default. …

“SLS made several foreclosure attempts, but those paused when Mueller sought bankruptcy protection.” Following Mueller’s unsuccessful attempt in federal court to obtain a declaration that the deed of trust was void, SLS filed another foreclosure, resulting in a foreclosure sale. The buyer, FFC Properties, “filed a summons for unlawful detainer … seeking to evict Mueller from the property.”

Mueller sued HSBC, SLS, Equity Trustees [SLS’s trustee under the deed of trust] and FFC in Fluvanna Circuit Court.

Mueller sought, among other things, declaratory and injunctive relief, “alleging that her signature on the deed of trust was a forgery and that, because the appellees were aware of this forgery, they had no legal right to proceed with the foreclosure sale on Mueller’s home….

“HSBC, SLS, and Equity Trustees demurred to the amended complaint. FFC Properties filed a demurrer and a special plea of statute of limitations. Mueller opposed the demurrers.” The trial court sustained appellees’ demurrers.

Two rationales

On appeal, “Mueller focuses solely on the circuit court’s finding that the two-year statute of limitations for fraud applied to the cause of action requesting declaratory judgment.

“This, however, was the circuit court’s alternative rationale for its holding. The circuit court also found that declaratory judgment was not an available remedy for the relief that Mueller sought.

“‘It is well-settled that a party who challenges the ruling of a lower court must on appeal assign error to each articulated basis for that ruling.’ …

“Of course, ‘we still must satisfy ourselves that the alternative holding is indeed one that (when properly applied to the facts of a given case) would legally constitute a freestanding basis in support of the trial court’s decision. …

“‘But, in making that decision, we do not examine the underlying merits of the alternative holding – for that is the very thing being waived by the appellant as a result of his failure to raise the point on appeal.’…

“Here, the circuit court sustained the appellees’ demurrer as to the first cause of action because declaratory judgments provide prospective relief, and Mueller’s requested relief is ‘backwards looking.’ Declaratory judgments are only appropriate before a right has been violated. …

“Accordingly, ‘where claims and rights asserted have fully matured, and the alleged wrongs have already been suffered, a declaratory judgment proceeding … is not an available remedy.’ …

“As the circuit court found, Mueller was seeking ‘to invalidate the deed of trust that was recorded long ago, and to set aside the foreclosure sale that has already occurred,’ and declaratory judgment was not an available remedy for the relief that Mueller sought.

“Accordingly, the record shows that there is ‘a separate and independent basis to affirm the circuit court’s ruling and we will not reverse it.’ …

“This alternate holding makes it unnecessary for this Court to examine Mueller’s statute of limitations argument.”


Mueller, et al. v. HSBC Bank USA, Record No. 1164-22-2, Feb. 14, 2023. CAV unpublished opinion (per curiam). From the Circuit Court of Fluvanna County. (Moore). Michael D. Defricke, Virginia C. Haizlip for appellant. Michael C. May for appellee. VLW 023-7-082, 8 pp.

VLW 023-7-082