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Chace v. M&T Mortgage Corp.

May 5, 2010

RAYMOND N. CHACE, JR., PLAINTIFF,
v.
M&T MORTGAGE CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

Before the Court is Defendants' Motion to Dismiss or for More Definite Statement (Docket No. 17). The motion is fully briefed and at issue. For the following reasons, the Court will grant Defendants' Motion.

BACKGROUND

Plaintiff borrowed $173,000 from Defendant M&T Mortgage Corporation in July of 2006, pursuant to two promissory notes. The notes were secured by deeds of trust encumbering the real property located at 1620 Lauderhill Way in Meridian, Idaho. Plaintiff filed this lawsuit on August 25, 2009, claiming -- among other allegations -- breach of contract, fraud and misrepresentation, failure to disclose, unjust enrichment, and civil conspiracy. See Complaint (Docket No. 1). Defendants now move to dismiss for failure to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6).

LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555.

Only a complaint that states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. at 557.

ANALYSIS

In the Complaint, Plaintiff identifies ten causes of action: (1) breach of contract; (2) fraud and misrepresentation; (3) failure to disclose and abuse of process; (4) violation of § 2607 of the Real Estate Settlement Procedures Act (RESPA)(12 U.S.C. §§ 2601-2617); (5) violation of the Truth In Lending Act (TILA)(15 U.S.C. § 1601 et seq.); (6) violation of the Home Ownership Equity Protection Act (HOEPA)(15 U.S.C. § 1639); (7) breach of fiduciary duty; (8) unjust enrichment; (9) civil conspiracy; and (10) quiet title.

A. Statute of Limitations

Actions for civil liability under TILA and HOEPA must be brought within one year from the date loan documents are signed -- when the required disclosures should have occurred. 15 U.S.C. § 1640(e); Meyer v. Ameriquest Mortg. Co., 342 F.3d 899, 902 (9th Cir. 2003). Actions for civil liability under § 2607 of RESPA must be brought within one year of the date the loan is signed, and thus closes. 12 U.S.C. § 2614; Kotok v. Homecomings Financial, LLC, 2010 WL 2057046, *2 (W.D. Wash. 2009)(noting that the date on which the statute of limitations begins to toll under either TILA or RESPA is the date on which the loan closes).

In this case, Plaintiff's loans from Defendant M&T Mortgage were signed and closed on July 25, 2006. See Exhibits (Docket Nos. 17-3, 17-4). Plaintiff did not file this lawsuit until August 25, 2009, over three years after the loans were signed and closed. Plaintiff is therefore barred from his claims under TILA, HOEPA, and RESPA, unless equitable tolling applies.

In appropriate circumstances, equitable tolling may apply to claims under TILA, HOEPA, and RESPA, where there is excusable delay by a plaintiff. King v. State of Cal., 784 F.2d 910, 915 (9th Cir. 1986); Bednaruk v. Northwest Trustee Services, Inc., 2010 WL 545643, *3 (W.D. Wash. 2010). Here, Plaintiff has not alleged any facts in the Complaint suggesting that the statute of limitations should be tolled. Cervantes v. City of San Diego, 5 F.3d 1273, 1277 (9th Cir. 1993); Agbabiaka v. HSBC Bank USA ...


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