                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-2420


KIMBERLY COVARRUBIAS,

                Plaintiff - Appellant,

          v.

CITIMORTGAGE, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:14-cv-00157-JAG)


Submitted:   August 20, 2015                 Decided:   September 1, 2015


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Henry W. McLaughlin, III, LAW OFFICE OF HENRY MCLAUGHLIN, P.C.,
Richmond, Virginia, for Appellant.    Anand V. Ramana, Elizabeth
H. Goodall, MCGUIREWOODS LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Kimberly     Covarrubias    appeals      the    district   court’s   orders

granting summary judgment and judgment on the pleadings in favor

of    CitiMortgage,     Inc.    (“CMI”)       and   dismissing    the    case    with

prejudice.        In November 2011, CMI foreclosed on Covarrubias’

home after she defaulted on the mortgage.                    Covarrubias’ lawsuit

asserted that CMI improperly foreclosed by failing to comply

with       U.S.    Department     of   Housing         and    Urban     Development

regulations (“HUD regulations”) incorporated into the deed of

trust, and committed actual fraud by foreclosing shortly after a

CMI    representative      assured     her      that    foreclosure      would    be

deferred.         On appeal, Covarrubias contends that the district

court erred in determining that CMI’s breach of HUD regulations

did not result in her claimed damages (Count One), and that

Covarrubias failed to support her fraud claim (Count Three). ∗                    We

affirm in part and vacate in part.

       We review a grant of summary judgment de novo, construing

the evidence in the light most favorable to the nonmoving party.

Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 207 (4th Cir.

2014).       “The court shall grant summary judgment if the movant


       ∗Covarrubias disclaims any challenge to the district
court’s other dispositive holdings, which accordingly are
abandoned on appeal.    Fed. R. App. P. 28(a)(8)(A); Edwards v.
City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).



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shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed.   R.       Civ.    P.    56(a).        The       relevant    inquiry       in       a   summary

judgment analysis, then, is “whether the evidence presents a

sufficient        disagreement         to     require      submission          to    a       jury   or

whether it is so one-sided that one party must prevail as a

matter of law.”              Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-52 (1986).               “Where the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial.”                            Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

quotation marks omitted).

       “The      nonmoving         party     cannot      create     a   genuine          issue      of

material fact through mere speculation or the building of one

inference upon another,” Othentec Ltd. v. Phelan, 526 F.3d 135,

140    (4th      Cir.    2008)      (internal         quotation     marks      omitted),            and

“cannot       defeat     summary       judgment         with     merely   a     scintilla            of

evidence,” Am. Arms Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir.

2009).      In our review of summary judgment, we do not weigh the

evidence        or     make       credibility         determinations.               Williams         v.

Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004).                                            We will

uphold      a    grant       of    summary    judgment         unless     we    find         that     a

reasonable jury could return a verdict for the nonmoving party



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on the evidence presented.              EEOC v. Cent. Wholesalers, Inc., 573

F.3d 167, 174-75 (4th Cir. 2009).

                                                I.

     To prevail on a breach of contract claim under Virginia

law, a plaintiff must show that: (1) the defendant owed her a

legally enforceable obligation; (2) the defendant violated that

obligation; and (3) she suffered injury or damage as a result of

the defendant’s breach.            Filak v. George, 594 S.E.2d 610, 619

(Va. 2004).      The plaintiff bears the burden of establishing the

causal    link   between    the    alleged       breach     and   damages   claimed.

Saks Fifth Ave., Inc. v. James, Ltd., 630 S.E.2d 304, 311 (Va.

2006).

     Virginia      courts    construe       deeds      of   trust   as   contracts.

Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 200 (Va. 2012).

Accordingly, lenders “must comply with all conditions precedent

to foreclosure in a deed of trust even if the borrowers are in

arrears.”        Id.   at   199.        Where    the   deed   of    trust   requires

compliance with incorporated HUD regulations, “the face-to-face

meeting    requirement      [of    24    C.F.R.      § 203.604(b)    (2015)]   is   a

condition precedent to the accrual of the rights of acceleration

and foreclosure.”       Id. at 202.

     Here, CMI was obligated under HUD regulations to conduct,

or make a reasonable effort to conduct, a face-to-face meeting

prior to foreclosure.         The record reveals CMI failed to do so.

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The    record      also       reveals        Covarrubias           presented          prima      facie

evidence of causation.                    She produced evidence demonstrating a

willingness and ability to bring the mortgage current had CMI

arranged a face-to-face meeting, and sufficiently showed a loss

of    equity      as    a     direct        result     of        the    foreclosure.             Thus,

construing        the       evidence         in   the        light       most     favorable          to

Covarrubias, we conclude that a rational jury could reasonably

conclude     that       a    face-to-face         meeting,         as     required,        may      have

resulted in an outcome other than foreclosure and the consequent

loss of Covarrubias’ equity.

                                                      II.

       Covarrubias next challenges the district court’s dismissal

of    her   actual          fraud     claim.          To     prevail,          Covarrubias       must

demonstrate        that       she     relied      on        an    intentional         or      knowing

misrepresentation by CMI and suffered harm by such reliance.

Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir.),

cert. denied, 135 S. Ct. 2868 (2015); Station #2, LLC v. Lynch,

695 S.E.2d 537, 540 (Va. 2010).                        A misrepresentation occurs if

the    party      “makes       a     promise      that,          when    made,     [it]       has    no

intention of performing.”                    Station #2, LLC, 695 S.E.2d at 540

(internal        quotation          marks    omitted).             Covarrubias          bears       the

burden      of    proving          each     element         “by        clear    and     convincing

evidence.”        Richmond Metro. Auth. v. McDevitt St. Bovis, Inc.,



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507 S.E.2d 344, 346 (Va. 1998).              We discern no error by the

district court.

      Accordingly, we vacate the district court’s order granting

summary judgment in CMI’s favor as to Covarrubias’ breach of

contract claim involving the requirements to offer or conduct a

face-to-face     meeting      and   remand      for   further       proceedings

consistent with this opinion.         We affirm in all other respects.

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 IN PART;
                                                             VACATED IN PART;
                                                                 AND REMANDED




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