NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4543
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THOMAS J. RIDDLE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED; MARILYN FISCHER, individually and on behalf of all
others similarly situated,
Appellants
v.
BANK OF AMERICA CORPORATION; BANK OF AMERICA, N.A.; BANK OF
AMERICA REINSURANCE CORPORATION; UNITED GUARANTY
RESIDENTIAL INSURANCE COMPANY; GENWORTH MORTGAGE INSURANCE
CORPORATION
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-12-cv-01740)
District Judge: Hon. Berle M. Schiller
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 30, 2014
Before: AMBRO, CHAGARES, and VANASKIE Circuit Judges.
(Opinion Filed: October 15, 2014)
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OPINION
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CHAGARES, Circuit Judge.
Two putative class plaintiffs appeal the District Court’s grant of summary
judgment to several defendants on statute of limitations grounds. For the reasons that
follow, we will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the facts relevant to our decision. The putative class plaintiffs, Thomas
Riddle and Marilyn Fischer, brought this action against Bank of America Corporation
(“BAC”), parent of Bank of America, N.A. (“BANA”) and Bank of America Reinsurance
Corporation (“BARC”), and two providers of private mortgage insurance, Genworth
Mortgage Insurance Corporation and United Guaranty Residual Insurance Corporation
(collectively, the “MI Insurers”). The plaintiffs’ complaint alleges violations of Section 8
of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607, in
connection with the financing of their homes. 1
Each plaintiff purchased a home in 2005 and both secured mortgages through
BANA. Both were also required by BANA to obtain private mortgage insurance, which
Genworth provided to Riddle and United Guaranty provided to Fischer. At closing, each
signed a disclosure that informed each plaintiff that their private mortgage insurance
might be reinsured by an affiliate of BANA. Reinsurance transfers some of the risk from
the primary insurers to another party in exchange for payments known as premiums. The
1
The plaintiffs also initially brought an unjust enrichment claim. They do not pursue this
claim on appeal.
2
disclosure indicated that the reinsurance arrangement was legal, would not increase the
premium that each plaintiff would pay for private mortgage insurance, and would not
increase the period of time for which private mortgage insurance was required.
It is undisputed that after the plaintiffs closed on their respective houses in 2005,
neither took any action to investigate the reinsurance arrangement until each received an
advertisement from their current counsel in 2012. After being contacted by counsel, the
plaintiffs brought suit alleging that the premiums that the MI insurers paid to BARC for
reinsurance were illegal kickbacks, referral payments, or unearned fee splits in violation
of RESPA. They claim that because the MI Insurers did not transfer any actual risk in
exchange for these payments, the premiums were simply kickbacks designed to pay BAC
for funneling business to the MI Insurers.
The District Court initially denied the defendants’ motion to dismiss, but then
ordered expedited discovery solely on the statute of limitations. Upon the defendants’
subsequent motion for summary judgment, the District Court concluded that the suit was
indeed barred by RESPA’s one-year statute of limitations. See 12 U.S.C. § 2614. It also
held that the complaint could not be equitably tolled because the plaintiffs failed to
exercise reasonable diligence in investigating their claim, and the defendants did not
actively mislead the plaintiffs. The plaintiffs timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of
summary judgment is plenary. Seamans v. Temple Univ., 744 F.3d 853, 859 (3d Cir.
3
2014). A moving party is entitled to summary judgment only if “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). A dispute about a material fact is “genuine” only “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable inferences must be
drawn in favor of the nonmoving party. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285,
286 (3d Cir. 2009).
III.
It is undisputed that the plaintiffs brought suit well after RESPA’s one-year statute
of limitations had expired. The plaintiffs argue, however, that they have satisfied the
requirements to equitably toll the statute of limitations. 2 Equitable tolling “can rescue a
claim otherwise barred as untimely by a statute of limitations when a plaintiff has been
prevented from filing in a timely manner due to sufficiently inequitable circumstances.”
Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009). It is “a rare
remedy to be applied in unusual circumstances,” Wallace v. Kato, 549 U.S. 384, 396
(2007), and used “sparingly,” Hedges v. United States, 404 F.3d 744, 751 (3d Cir.
2005). 3
2
The plaintiffs have waived any invocation of the discovery rule. See Appendix 808
(representing to the District Court that the plaintiffs were “not seek[ing] an extension of
the accrual date of their RESPA claim by virtue of the Discovery Rule.”).
3
The Courts of Appeals disagree regarding whether equitable tolling is available at all for
RESPA claims. Compare Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1039 (D.C.
Cir. 1986) (holding that RESPA’s statute of limitations is jurisdictional and not subject to
equitable tolling) with Merritt v. Countrywide Fin. Corp., -- F.3d. --, 2014 WL 3451299
at *10-11 (9th Cir. July 16, 2014) (holding that RESPA’s statute of limitations is not
4
To invoke equitable tolling, the burden is on the plaintiffs to demonstrate “three
necessary elements: (1) that the defendant actively misled the plaintiff; (2) which
prevented the plaintiff from recognizing the validity of her claim within the limitations
period; and (3) where the plaintiff’s ignorance is not attributable to her lack of reasonable
due diligence in attempting to uncover the relevant facts.” Cetel v. Kirwan Fin. Grp.,
Inc., 460 F.3d 494, 509 (3d Cir. 2006). A plaintiff must “exercise due diligence in
preserving his legal rights.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
The undisputed facts clearly indicate that the plaintiffs did not exercise diligence
sufficient to equitably toll the statute of limitations. The plaintiffs did absolutely nothing
to investigate their potential claims between the time they closed on their homes in 2005
(which is the time that their claim arose under RESPA, see 12 U.S.C. § 2614) and the
time that they were contacted by counsel in 2012. The plaintiffs were informed at their
respective closings that a BAC entity may be involved in reinsuring their private
mortgage insurance, but took no subsequent action to determine whether any such
reinsurance arrangement was legitimate.
The plaintiffs argue that their diligence was reasonable under the circumstances
because the closing documents they signed represented that the reinsurance arrangement
was legitimate, and therefore they had no reason to investigate it. But we have held that
“[m]erely asking defendants whether the plans were legal [and presumably receiving an
affirmative response] is inadequate to show reasonable diligence.” Cetel, 460 F.3d at
jurisdictional and able to be equitably tolled). We assume, without deciding, that RESPA
claims may be equitably tolled.
5
508; accord Mathews v. Kidder, Peabody & Co., Inc., 260 F.3d 239, 255-56 (3d Cir.
2001). Here, the plaintiffs did not make any inquiry. They simply accepted the
defendants’ representation that the arrangement was legal, and went about their lives for
the next seven years, conducting no investigation at all during that time. Taking the
defendants’ representations at face value without asking a single question for seven years
is insufficient diligence to toll the statute of limitations in these circumstances. 4
IV.
For the foregoing reasons, we will affirm the order of the District Court.
4
Because the plaintiffs failed to demonstrate that they exercised reasonable diligence,
their attempt to equitably toll the statute fails, and we need not determine whether the
plaintiffs met any of the other prongs of the equitable tolling test. We note in passing,
however, that there is scant evidence that any BAC defendant “actively misled” the
plaintiffs. Forbes v. Eagleson, 228 F.3d 471, 486 (3d Cir. 2000). Further, there is no
evidence in the record that either of the MI Insurers engaged in any “affirmative acts of
concealment” that were directed at the plaintiffs and designed to mislead them regarding
any potential claim. Id. at 487.
6