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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

4 Opinions from CAV to round out October

The Court of Appeals issues 4 published opinions in the last weeks of October. You humble correspondent was busy presenting CLEs for the VMVLA as October is also the deadline month for attorneys to get their education credits, so this post is a bit late.


Gloria Neal v. Secretary of the Department of Veterans Affairs is, despite its name, a garden variety unlawful detainer action (what most folks call an eviction) its just the the DVA is the owner of the property in question. Well, perhaps not so garden variety in that in involved a reversal of a judgment granting possession to the owner.


Neal owned a home in Haymarket, Virginia subject to a deed of trust. That deed of trust secured a loan from Wells Fargo. The loan was guaranteed by the VA, and the deed of trust contained a “rider” requiring, per Neal’s answer, “compliance will [sic] all VA regulations in effect at the time of the execution of the deed of trust.” In 2016, Neal obtained what she understood to be a loan modification. What she understood being the key language here


At some unspecified point after this modification, Neal fell into default and the substitute trustee on the deed of trust initiated a non-judicial foreclosure sale in July 2019 at which the VA was the highest bidder. The VA subsequently obtained a foreclosure deed that was duly recorded. The VA sent Neal a notice to quit and vacate, and upon her refusal to do so filed an unlawful detainer action in the Prince William County Circuit Court.


Neal answered the unlawful detainer complaint and admitted that she was in default. However, Neal asserted an affirmative averment that when she obtained her modification, she was told by a representative of the VA she no longer had a “VA loan” that required compliance with all of the VA regulations. Neal asserted that this statement was a material misrepresentation and that had she known that the VA representative was incorrect in his assertion that she no longer had a VA loan, she would have availed herself of certain protections contained in the VA regulations and guaranteed to her in her deed of trust.


The VA moved for summary judgment and the circuit court granted the motion. The Court of Appeals, Judge Humprheys joined by Judge Ortiz and Sr. Judge Annunziata, reverse, finding that the allegation of the affirmative defense, which must be taken as true for purposes of summary judgment, are sufficient to create a disputed issue of fact. The case is remanded for further proceedings.


Tanya Rashae Holland v. Commonwealth of Virginia involves the issue of whether a defendant should be allowed to withdraw a plea of no contest where her former attorney has been suspended by the state bar and her new counsel provides information about the nature of the offense and a possible defense that the prior attorney did not advise her. The opinion of the Court, Judge Lorish, joined by Judges Raphael and Callins, is 23-pages long, but for me this was a no-brainer because the first sentence reads, "Consistently maintaining that she gave her child the wrong medication by accident, Tanya Holland entered a no contest plea to felony child neglect resulting in serious injury."


Felony child neglect requires a willful act. If Holland consistently maintained that she had not acted willfully, in my view the circuit court should not have accepted her plea, even as a no contest. At the very least, the court should have made d*** sure that she understood that a no contest plea meant that the she was conceding the Commonwealth had evidence that was sufficient to prove she acted willfully.



Because the motion to withdraw the plea was made prior to sentencing, Holland was only required to show that she had a reasonable defense to the charge and was not interposing the motion to withdraw merely to delay the proceedings. The Court of Appeals reserves and remands.


Marco Antonio Martinez Ayala v. Commonwealth of Virginia involves a motion to suppress post-arrest statements by the defendant. Ayala, a native Spanish speaker, said that he spoke English "pretty good" and that while the charges had been explained to him earlier, he "did not understand a lot" of what he had been told. Before reading the Miranda warning in English and providing Ayala with a written Spanish translation, the officer advised Ayala that the charges were "serious" and involved the rape and sexual assault of a minor. Ayala then signed the Spanish language version of the form.


The officer did not verify that Ayala understood the nature of the offenses better than he had previously, but when told of the statements of the victim, Alaya replied "That's what she's saying? Wow!" Alaya denied any improper contact with the victim and said that he wanted an attorney. At this, the interview ended.


Now, you may be wondering, as I was at this point, what exactly Alaya want to suppress. Well, apparently he wanted his denials to be suppressed because in Henrico County, where this case comes from, the prosecution plays interviews where a defendant denies allegations against him and then argues to the jury that he was sincere is his denials. This is, of course, not exactly improper -- but in my view it creates a dam**d if you do, dam**d if you don't prospect for suspects that defeats the purpose of the 5th Amendment.


The Court of Appeals, Chief Judge Decker joined by Judges Athey and White, doesn't see it that way, however, and agrees with the circuit court that Alaya was adequately advised of (and exercised) his rights. So file this one under the "Keep you d*** mouth shut except for the words "I want a lawyer."


Debra K. Clutteur v. Nancy C. Rosier involves the dismissal of a nonsuited and recommenced personal injury action on a plea-in-bar of the statute of limitations where the defendant was deceased and plaintiff moved to substitute her estate as the defendant. Now, you would be forgiven in thinking that the nonsuit was taken because the defendant had died and the recommenced action was mistakenly brought against her rather than the estate.


But no, Rosier had been dead all along. Indeed, she had died nearly a year before the original suit was filed . . . in 2017. It seems the first action was filed and remained in her name until after the time time for substituting the personal representative (or filing a separate action against the estate) had passed. The non-suit was an effort to get around that bar, and the circuit court found that it was not a proper one. The Court of Appeals, Judge Chaney, joined by Judges Humphreys and O'Brien, agree.





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