[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11400 OCTOBER 5, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:10-cv-00627-WCO
RODNEY D. SAMPSON,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
WASHINGTON MUTUAL BANK,
JP MORGAN CHASE BANK, NATIONAL ASSOCIATION,
a Federally Charted Financial Institutions,
jointly and severally as in their Corporate capacity,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 5, 2011)
Before EDMONDSON, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Rodney Sampson appeals the district court’s dismissal of his complaint. He
contends that the district court erred by finding some of the claims in his
complaint time-barred by the statute of limitations and by concluding that he had
failed to set forth facts sufficiently alleging the rest of the claims in his complaint.
I.
Sampson refinanced his mortgage loan on a residential property in October
2004, borrowing over $1.3 million from Washington Mutual Bank. The loan was
later purchased along with the rest of Washington Mutual’s assets by JP Morgan
Chase Bank. Sampson eventually defaulted on the loan, which resulted in a
nonjudicial foreclosure sale of the property in July 2009.
A few weeks after the foreclosure sale, Sampson filed a complaint in
Georgia state court, which Washington Mutual and Chase removed to federal
court. His complaint contained claims for (1) violations of the Truth in Lending
Act (TILA), 15 U.S.C. § 1601 et seq.; (2) fraud in inducing the loan transaction;
(3) wrongful foreclosure; (4) rescission of the note and mortgage; (5) promissory
estoppel; (6) a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.;
and (7) predatory lending. Based on those claims Sampson sought relief in the
form of money damages and an injunction preventing the defendants from placing
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negative remarks on his credit report.1
The defendants filed a Federal Rule of Civil Procedure 12(c) motion for
judgment on the pleadings. The district court granted that motion and dismissed
Sampson’s complaint.2 His fraud, wrongful foreclosure, and rescission claims
were dismissed without prejudice, and the rest of the claims were dismissed with
prejudice. This is his appeal from that dismissal.
II.
Sampson contends that his TILA claims, which were based on the
defendants’ failure to disclose several required documents at the closing of the
loan transaction, are not time-barred by the one-year statute of limitations.3 He
1
Sampson also sought to enjoin the foreclosure proceedings, but that claim is moot
because by the time Sampson filed suit Chase Bank had already held the nonjudicial foreclosure
sale and sold Sampson’s property. See Cotton v. First Nat’1 Bank of Gwinnett Cnty., 220 S.E.2d
132, 132–33 (Ga. 1975) (finding an action to enjoin a foreclosure sale that had already occurred
moot).
2
We construe the defendant’s motion as a Rule 12(b)(6) motion to dismiss and review
the district court’s grant of it accordingly. The district court erred by granting the motion under
Rule 12(c) because a Rule 12(c) motion for judgment on the pleadings may be filed only “after
the pleadings are closed,” Fed. R. Civ. P. 12(c), and the defendants never filed an answer in this
case. “The court’s error, however, is of no moment. Whether the court examined [the
complaint] under Rule 12(b)(6) or Rule 12(c), the question was the same: whether the
[complaint] stated a claim for relief.” Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002).
3
In his brief to this Court, Sampson expressly abandoned any claim of rescission under
TILA, which has a three-year statute of repose. See 15 U.S.C. § 1635(f). In any event, the three-
year statute of repose cannot be equitably tolled, see Beach v. Ocwen Fed. Bank, 523 U.S. 410,
412, 419, 118 S.Ct. 1408, 1409, 1413 (1998) (holding “that § 1635(f) completely extinguishes
the right of rescission at the end of the 3-year period”), and thus bars Sampson’s claim, which
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concedes that the filing of his claims nearly five years after the loan transaction
took place was well after the statute had run. He argues, however, that we should
equitably toll his limitations period because “disclosure documents were
completely withheld” from him and “[w]ithout being provided with the required
information, [he] was unaware of his rights.”
“We review de novo the district court’s interpretation and application of the
statute of limitations.” Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337
(11th Cir. 2008) (quotation marks omitted). Equitable tolling is available for stale
TILA claims but only if the plaintiff was prevented from bringing suit on those
claims “due to inequitable circumstances.” Ellis v. Gen. Motors Acceptance
Corp., 160 F.3d 703, 706 (11th Cir. 1998). The TILA violations that Sampson has
alleged in his complaint “‘occur[]’ when the [loan] transaction is consummated.”
In re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984). And “[n]ondisclosure is not a
continuing violation for purposes of the statute of limitations.” Id.
Sampson alleges no inequitable circumstances outside of the fact that the
defendants did not disclose the documents that are required under TILA. By
definition, nondisclosure happens every time there is a TILA nondisclosure
violation, and mere violation of the statute cannot serve as extraordinary
was brought nearly five years after the alleged TILA violation occurred.
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circumstances that merit tolling. Because “nondisclosure is not a continuing
violation for purposes of the statute of limitations” and does not by itself toll the
running of the limitations period, Sampson’s TILA claims are time-barred, see In
re Smith, 737 F.2d at 1552, and the district court did not err in dismissing them.
III.
Sampson also contends that he sufficiently alleged in his complaint claims:
for fraud; for wrongful foreclosure; for rescission of his note and mortgage; for
promissory estoppel; for violation of the Fair Credit Reporting Act, 15 U.S.C. §
1681 et seq.; and for predatory lending.
“We review de novo the district court’s grant of a motion to dismiss under
Rule 12(b)(6).” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). In
general, a district court should not look outside the complaint in a motion to
dismiss, but it may consider documents attached to a defendant’s motion if those
documents are “relationship-forming contracts [that] are central to a plaintiff’s
claim.” SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337
(11th Cir. 2010); Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999)
(“[A] document central to the complaint that the defense appends to its motion to
dismiss is also properly considered, provided that its contents are not in dispute.”).
In this case, the defendants appended to their motion to dismiss a note, a security
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deed, and a deed under power, none of which Sampson disputes and all of which
are central to his claims that arose out of his loan transaction with the defendants.
In reviewing the grant of a motion to dismiss, we take the factual allegations
as true and construe them in the light most favorable to the plaintiffs. Edwards,
602 F.3d at 1291. “We are not, however, required to accept the labels and legal
conclusions in the complaint as true.” Id. “Dismissal for failure to state a claim is
proper if the factual allegations are not enough to raise a right to relief above the
speculative level.” Id. (quotation marks omitted). “A complaint may be dismissed
if the facts as pled do not state a claim for relief that is plausible on its face.”
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). “Stated
differently, the factual allegations in the complaint must possess enough heft to set
forth a plausible entitlement to relief.” Edwards, 602 F.3d at 1291 (quotation
marks omitted).
Turning first to the fraud claim, Sampson alleges in his complaint, without
any specific dates, meetings, conversations, or other circumstances, that the
defendants fraudulently provided “materially false property value and payment
disclosures” to him and “made material misrepresentations by representing that
property values on the mortgage market were much greater than they actually
were.” That is not enough to sufficiently allege fraud.
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When alleging fraud, a plaintiff “must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The
particularity rule alerts defendants of “the precise misconduct with which they are
charged and protect[s] defendants against spurious charges of immoral and
fraudulent behavior.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th
Cir. 2001) (quotation marks omitted). Under Rule 9(b), a plaintiff must allege:
“(1) the precise statements, documents, or misrepresentations made; (2) the time,
place, and person responsible for the statement; (3) the content and manner in
which these statements misled the Plaintiffs; and (4) what the defendants gained
by the alleged fraud.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291
(11th Cir. 2010).
Because Sampson fails to allege in his complaint who made the
misrepresentations, what their precise content was, when they were made, and
where they were made, he has not set forth facts sufficient to plead fraud.
Additionally, because Sampson failed to state a claim for fraud, he has failed to
state claims for wrongful foreclosure and rescission of the note and mortgage
because those claims depend on his claim that the defendant’s committed fraud.
For the promissory estoppel claim, Sampson alleges in his complaint that
some time after the loan had closed the defendants promised him that he would
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have “the option of a short sale,” but then they refused “to adjust the loan amount
to facilitate the sale at the current market.” Sampson also alleges that he relied on
that promise and “made other financial arrangements to improve the subject
property to encourage a short sale since.” 4
Under Georgia law, “[p]romissory estoppel cannot be applied unless the
promisee reasonably relied on the promise.” Gerdes v. Russell Rowe Commc’ns,
Inc., 502 S.E.2d 352, 354 (Ga. Ct. App. 1998). Reliance is not reasonable if the
“clear and unambiguous provision[s]” of the written contract between the
promisor and promisee “served to place [the promisee] on due notice that he could
not thereafter reasonably rely upon any words or other course of dealing to his
inducement, other than a modification agreement actually reduced to writing.” Id.
at 355 (quoting Hendricks v. Enter. Fin. Corp., 405 S.E.2d 566, 569 (Ga. Ct. App.
1991).
The written security deed signed by Sampson provided (1) that the
defendants were not required to “modify amortization of the sums secured . . . by
reason of any demand made by” Sampson; (2) that Sampson “shall not be released
4
The complaint provided no detail about what was meant by “short sale” or what the
terms were for the short sale option, and the allegations for the promissory estoppel claim are
incoherent at best. We will assume Sampson meant that one of the two defendant banks (he did
not specify which) had agreed both to allow him to sell the property at a price lower than the
amount owed on the loan and to release him from the security deed without foreclosing on the
property despite not receiving full repayment on the loan.
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from [his] obligations and liability under this [security deed] unless [the
defendants] agree[] to such release in writing”; (3) that any “forbearance by [the
defendants] in exercising any right or remedy” or acceptance of “amounts less than
the amount due, shall not be a waiver of or preclude the exercise of any right or
remedy”; and (4) that the agreement “cannot be changed or modified except . . . by
agreement in writing signed by” Sampson and the defendants. The “clear and
unambiguous terms” of the written security deed require a writing to modify its
terms. Sampson has thus failed to sufficiently allege in his complaint that it was
reasonable for him to rely on the defendants’ oral promise of a short sale option
and a release from his obligations under the security deed without full repayment
of the loan. See Gerdes, 502 S.E.2d at 354–55. Because he failed to sufficiently
allege an essential element of his promissory estoppel claim, the district court did
not err in dismissing it.
Sampson’s Fair Credit Reporting Act claim does not fare any better.
Section 1681s-2(b) of the FCRA requires a furnisher of credit (such as the
defendants) to conduct an investigation and take other actions after the furnisher
has been notified of inaccuracies in a consumer’s credit report. See 15 U.S.C. §
1681s-2(b). The FCRA provides consumers (such as Sampson) with a private
right of action against the furnisher if the furnisher fails to fulfill its requirements
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under § 1681s-2(b). See 15 U.S.C. §§ 1681n, 1681o, & 1681s-2(c). To trigger the
furnisher’s responsibilities under § 1681s-2(b), however, the consumer must have
notified the furnisher of a dispute about the inaccuracy of the credit report.
Sampson does not allege in his complaint that he notified the defendants of any
inaccuracies in his credit report, and he thus fails to state a claim under § 1681s-
2(b) of the FCRA.
Lastly, Sampson’s claim of “predatory lending” was alleged without
reference to any state or federal cause of action, and he points to no legal authority
creating a “predatory lending” cause of action in his brief to this Court. The
district court did not err in dismissing that claim.
The district court did not err in dismissing Sampson’s complaint.
AFFIRMED.
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