                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
Alex Rahmi,                                                                         FILED
Plaintiff Below, Petitioner                                                    September 3, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
vs) No. 18-0533 (Jefferson County 17-C-201)                                      SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA


Pill & Pill, PLLC,
Defendant, Respondent

                               MEMORANDUM DECISION
        Petitioner Alex Rahmi, pro se, appeals the May 17, 2018, order of the Circuit Court of
Jefferson County dismissing an action, in which he sought an injunction to prevent the completion
of the foreclosure sale of his residential property located at 638 Marlow Road, Charles Town, West
Virginia. Respondents Pill & Pill, PLLC (“Pill & Pill”), Bank of New York Mellon Trust
Company, National Association (f/k/a The Bank of New York Trust Company, N.A.) (“bank”),
and R & D Investments, LLC (“R & D”), by counsel J. Mark Sutton, Christopher A. Dawson, and
Abraham M. Ashton, filed a summary response in support of the circuit court’s order.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

       Petitioner’s residential property, located at 638 Marlow Road, Charles Town, West
Virginia, was sold at a foreclosure sale in August of 2017. Pill & Pill served as the trustee that sold
the property. The Bank was the holder of the deed of trust. R & D purchased the property at the
foreclosure sale. Collectively, these entities will be referred to as “respondents.”

       On February 21, 2012, petitioner filed a bankruptcy action pursuant to Chapter 11 of the
United States Bankruptcy Code.1 On February 28, 2014, the bankruptcy trustee filed a motion

       1
         We take judicial notice of the record from petitioner’s bankruptcy in the United States
Bankruptcy Court of the Northern District of West Virginia, Case No. 12-bk-200. We note that, in
ruling on a motion to dismiss, a court is permitted to “consider matters that are susceptible to
judicial notice.” See Forshey v. Jackson, 222 W. Va. 743, 747, 671 S.E.2d 748, 752 (2008)
(Internal quotations and citations omitted).

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pursuant to 11 U.S.C. § 1112(b) to convert petitioner’s Chapter 11 bankruptcy into a Chapter 7
bankruptcy following petitioner’s settlement of a Canadian court action for approximately
$170,000 without court approval and his failure to adequately disclose and account for the
settlement proceeds. By order entered May 16, 2014, the United States Bankruptcy Court of the
Northern District of West Virginia (“bankruptcy court”) granted the trustee’s motion and
converted petitioner’s bankruptcy into one under Chapter 7. The bankruptcy trustee subsequently
filed a motion for summary judgment on the trustee’s claim that petitioner should be denied a
discharge of his debts, and by order entered August 24, 2015, the bankruptcy court ruled that
petitioner’s debts would not be discharged. In denying petitioner a discharge, the bankruptcy court
found that he intentionally transferred and concealed the settlement proceeds from the Canadian
action. See In Re Rahmi, 535 B.R. 655, 661 (Bankr. N.D. W.Va. 2015).

        On September 2, 2015, the bank filed a motion to lift the bankruptcy stay so that a
foreclosure proceeding could proceed against petitioner’s residential property. By order entered
November 24, 2015, the bankruptcy court found cause pursuant to 11 U.S.C. § 362(d)(1) for lifting
the stay, finding:

        In this case, [petitioner]’s failure to perform under the contractual obligations of the
        loan is for an exceedingly long period of time; that is to say, five years of non-
        performance. Such a long and unmitigated failure to perform under the contract is
        sufficient to constitute independent cause to lift the stay; especially in the context
        of a Chapter 7 case.

In its order, the bankruptcy court noted that the bank filed the motion to lift the stay in “its capacity
as successor to JPMorgan Chase Bank, N.A., as Trustee for Residential Asset Mortgage Products,
Inc., [GMAC Mortgage] Loan Trust 2005-AR1.”

        On August 15, 2017, Pill & Pill sold, and R & D purchased, petitioner’s property at a
foreclosure sale. On August 18, 2017, petitioner filed a complaint against Pill & Pill in the Circuit
Court of Jefferson County, seeking an injunction to prevent the completion of the foreclosure sale
of his residential property “pending final resolution by [the] [b]ankruptcy [c]ourt[.]” By order
entered August 23, 2017, the bankruptcy court denied petitioner’s Rule 60(b) motion for relief
from the August 24, 2015, order denying him a discharge of his debts.

        On September 13, 2017, Pill & Pill filed an answer denying the allegations set forth in
petitioner’s complaint in the instant action. Petitioner filed amended complaints on November 17,
2017, and April 11, 2018.2 In his second amended complaint, petitioner sought compensation “for

        2
         While not granting petitioner leave to amend his complaint, the circuit court considered
the allegations in the amended complaints in its May 17, 2018, order. We note that petitioner
included none of the parties’ pleadings in his appendix. Pursuant to Rule 6(b) of the West Virginia
Rules of Appellate Procedure, we hereby supplement the appellate record with the August 18,
2017, complaint; Pill & Pill’s September 13, 2017, answer; the November 17, 2017, amended
complaint; the bank’s March 29, 2018, motion to dismiss; and the April 11, 2018, amended

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injuries and damages caused by [GMAC Mortgage].” On January 31, 2018, the circuit court
granted motions to intervene in the action filed by the bank and R & D. Thereafter, on March 29,
2018, the bank filed a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of
Civil Procedure, arguing that petitioner’s “frivolous litigation” was preventing the completion of
the foreclosure sale to R & D, including “the recording of a [t]rustee’s [r]eport of [s]ale and
[t]rustee’s [d]eed.” Pill & Pill and R & D joined in the bank’s motion to dismiss petitioner’s action.

        By order entered May 17, 2018, the circuit court dismissed the instant action. The circuit
court found petitioner’s allegations “virtually unintelligible,” but could be liberally construed as
asserting a fraud claim against GMAC Mortgage, which was not a defendant in the case. The
circuit court further found that petitioner failed to set forth his allegations of fraud with
particularity as required by Rule 9(b) of the West Virginia Rules of Civil Procedure. Therefore,
the circuit court concluded that petitioner failed to state a claim upon which relief can be granted.3

        Rule 12(b)(6) of the Rules of Civil Procedure provides that a defendant may file a motion
to dismiss for “[a] failure to state a claim upon which relief can be granted.” “Appellate review of
a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). Rule 9(b)
provides that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity.” In Syllabus Point 1, in part, of Hager v. Exxon Corp.,
161 W. Va. 278, 241 S.E.2d 920 (1978), we held that “fraud or mistake must be alleged in the
appropriate pleading with particularity.”

        On appeal, petitioner’s arguments are difficult to follow. Generally, petitioner contends
that his allegations sufficiently state a fraud claim against GMAC Mortgage. Respondents argue
that the circuit court properly dismissed petitioner’s action for a failure to state a claim upon which
relief can be granted. We agree with respondents’ position and concur with the circuit court’s
finding that GMAC Mortgage is not a defendant in this case and, even if it were, petitioner fails to
set forth his allegations of fraud with particularity. We find that, regardless of whether petitioner
is seeking an injunction, money damages, or both, the claim upon which relief is sought is not
sufficiently stated given the heightened standard for pleading fraud as required by Rule 9(b) and
Syllabus Point 1 of Hager. Id. at 278, 241 S.E.2d at 921. Therefore, based on our review of the
record, we conclude that the circuit court did not err in granting respondents’ motion to dismiss
the action.

        For the foregoing reasons, we affirm the circuit court’s May 17, 2018, order dismissing
petitioner’s action.

                                                                                           Affirmed.


complaint.
       3
         Following the entry of the circuit court’s May 17, 2018, order, petitioner states that he was
evicted from the property on June 5, 2018.
                                                   3
ISSUED: September 3, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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