NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3505
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ANTHONY JOHNSON,
Appellant
v.
MULTI-SOLUTIONS, INC.; VICTOR WEXLER, D/B/A Multi-Solutions;
LARRY BLOUGH, D/B/A Multi-Solutions; JAMES DANIELS;
GATEWAY HOME EQUITY, INC., D/B/A Gateway Funding Diversified
Mortgage Services, D/B/A Ivy Mortgage; CARL GENSIB; JOHN DOES 1-10;
BANK OF AMERICA CORPORATION, F/K/A Countrywide Home Loans, Inc.
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-08-cv-05134)
District Judge: Honorable Anne E. Thompson
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 28, 2012
Before: SMITH and FISHER, Circuit Judges, and RAKOFF, * District Judge.
(Filed: August 17, 2012 )
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OPINION OF THE COURT
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*
The Honorable Jed S. Rakoff, District Judge for the United States District Court
for the Southern District of New York, sitting by designation.
FISHER, Circuit Judge.
Anthony Johnson appeals from the order of the U.S. District Court for the District
of New Jersey granting summary judgment against Johnson on claims arising out of a
2006 mortgage loan. For the reasons stated below, we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
In 2006, Anthony Johnson defaulted on a $60,000 mortgage from Ameriquest
Mortgage Company (the “AMC mortgage”), which he had taken out on a residence at
854 Greenwood Avenue, Trenton, New Jersey. After the property was listed for sheriff’s
sale, Victor Wexler and Larry Blough of Multi-Solutions, Inc. (“MSI”), sent Johnson a
letter offering assistance in avoiding foreclosure. Johnson understood MSI to be offering
a “lease/buy-back” arrangement, under which Johnson would add an investor to his deed,
pay the investor monthly mortgage payments for a year, take the investor off of the deed
at the end of the year, and then proceed with a new mortgage in his own name. However,
the actual agreement signed between Johnson and MSI deeded the property to the new
owner, James Daniels, and obligated Johnson to pay monthly rent to Daniels to lease the
property back. The closing agent for the sale, Carl Gensib, produced two HUD-1
settlement statements documenting the transaction: one falsely representing that Johnson
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had been paid $88,148.67 for the property, the other representing (according to the “true
intent of the parties”) that Daniels would use “proceeds” from the sale to pay off
Johnson’s AMC mortgage.
Daniels executed a new mortgage on the property with Gateway to purchase the
property (the “Daniels mortgage”), but in fact used the proceeds to pay off the AMC
mortgage. Gateway received the fraudulent settlement statement, but received no records
of the purported sale/lease-back agreement. Gateway later assigned the Daniels mortgage
to Countrywide Home Loans (“Countrywide”). When Daniels defaulted, Countrywide
foreclosed on the property and assigned its bid at the sheriff’s sale to Fannie Mae, which
subsequently obtained title to the property.
On October 20, 2008, Johnson filed a Complaint against MSI, Daniels, Gateway,
and Gensib, alleging claims under, inter alia, the Truth in Lending Act (TILA), 15 U.S.C.
§ 1601 et seq., and the Home Ownership and Equity Protection Act (HOEPA), 15 U.S.C.
§ 1639. Johnson filed a Second Amended Complaint on October 15, 2009, adding
Countrywide as a defendant. On August 22, 2011, the District Court granted summary
judgment in favor of Gateway and Countrywide (the “Creditor-Defendants”) on the TILA
and HOEPA claims, as well as various state law claims. On September 13, 2011,
Johnson voluntarily dismissed the remaining defendants under Federal Rule of Civil
Procedure 41(a)(1)(A)(i). Johnson timely appealed.
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II.
The District Court had jurisdiction over Johnson’s federal claims pursuant to 28
U.S.C. § 1331. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 1
We review the District Court’s ruling on a motion for summary judgment de novo,
applying the same standard as the District Court. Azur v. Chase Bank, USA, Nat’l Ass’n,
601 F.3d 212, 216 (3d Cir. 2010). Summary judgment is appropriate where, drawing all
reasonable inferences in favor of the nonmoving party, there is no genuine dispute of
material fact such that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Horn v. Thoratec Corp., 376 F.3d 163, 166 (3d Cir. 2004).
III.
Johnson offers two arguments on appeal. First, he submits that the District Court
erred in rejecting his contention that an equitable mortgage existed between him and the
Creditor-Defendants, and consequently that he had standing to pursue his claims under
1
Johnson’s voluntary dismissal of the other defendants – because it was without
prejudice – did not render the District Court’s order dismissing the claims against the
Creditor-Defendants a final, appealable order. See, e.g., Morton Int’l, Inc. v. A.E. Staley,
460 F.3d 470, 476-77 (3d Cir. 2006) (holding that dismissal of various defendants to
allow settlement, without prejudice, did not render dismissal on merits as to remaining
defendant a final appealable order). However, at this Court’s request, Johnson has
stipulated that he will not pursue litigation against those defendants on the voluntarily
dismissed claims. This is sufficient to give us jurisdiction. See Tiernan v. Devoe, 923
F.2d 1024, 1031 (3d Cir. 1991).
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TILA and HOEPA 2 despite the absence of an express contract or transaction. Second, he
submits that the District Court wrongly dismissed his TILA claims in finding that
Gateway lacked constructive knowledge of the true nature of the MSI transaction as a
sale/lease-back arrangement. Neither argument is persuasive.
The District Court correctly found that Johnson could not bring claims under
TILA and HOEPA because he was not a consumer of the credit extended by Gateway or
Countrywide in the Daniels mortgage. TILA and HOEPA impose disclosure
requirements on creditors for certain kinds of loans, see 15 U.S.C. § 1601(a) (stating
purpose of “assur[ing] a meaningful disclosure of credit terms” to consumers); id. § 1639
(requiring disclosures by creditors for certain mortgages), and provide a “civil cause of
action by a consumer against a creditor who fails to make the required disclosures.”
Tower v. Moss, 625 F.2d 1161, 1165 (5th Cir. 1980) (emphasis added). Under TILA and
HOEPA, therefore, only a “consumer of credit” is entitled to the protections offered by
2
Johnson refers in his brief to his “equitable mortgage claims,” which we
understand to refer exclusively to those claims for which the existence of an equitable
mortgage might affect the validity of his claim: TILA and HOEPA.
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the statutory provisions. 3 See Johnson v. NovaStar Mortg., Inc., 698 F. Supp. 2d 463,
468 (D.N.J. 2010).
“It is obvious that in order for a bank to be obligated to disclose credit terms to an
individual, that individual must be doing business with the bank.” Weiner v. Bank of
King of Prussia, 358 F. Supp. 684, 692 (E.D. Pa. 1973). By the same token, to qualify as
a “consumer of credit,” one must, at minimum, have engaged in business with the
creditor. See Johnson, 698 F. Supp. 2d at 468; see also 15 U.S.C. § 1602(h) (defining
“consumer” in credit transaction context under TILA and HOEPA as “the party to whom
credit is offered or extended”). Johnson admitted that he never engaged in any direct
transaction, let alone a credit transaction, with the Creditor-Defendants, and the cases he
relies upon to argue that New Jersey would treat his arrangement as an equitable
mortgage between himself and the Creditor-Defendants are inapposite. Those cases
involved equitable mortgages between the plaintiff and the creditors, where the property
was “nominally” in another’s name, but the plaintiff made payments on the mortgage and
was treated by all parties as the true property owner. See, e.g., Johnson, 698 F. Supp. 2d
at 469-72. Here, however, the two transactions were entirely separate: Johnson’s
3
Unlike the District Court, we eschew the use of the term “standing” because
neither party briefed the specific question of whether Johnson, a consumer of residential
real estate subject to a mortgage, has interests falling “arguably within the ‘zone of
interests’ protected by the statute.” Lewis v. Alexander, No. 11-3439, 2012 WL 2334322,
at *9 (3d Cir. June 20, 2012). Given the breadth of the TILA and HOEPA, such an
inquiry is not necessarily coextensive with Johnson’s status as a consumer of credit.
Accordingly, for the purposes of this decision, we treat Johnson’s status as a consumer of
credit offered by the Creditor-Defendants as an element of his claims.
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sale/lease-back transaction did not involve the Creditor-Defendants, and the Daniels
mortgage did not involve Johnson. Consequently, we agree with the District Court that
Johnson was not a consumer of credit under TILA and HOEPA.
Johnson suggests that the Creditor-Defendants should be charged with
constructive knowledge of the sale/lease-back arrangement because the Gateway
employee who approved the Daniels mortgage, Joseph Zicaro, was aware of MSI’s
foreclosure rescue business. The argument is meritless. Johnson overlooks the fact that
even if Zicaro were aware of MSI’s foreclosure rescue business, there was no evidence in
the record that he knew this particular transaction involved such an arrangement. Only
Daniels signed the mortgage, only Daniels made the mortgage payments, and Gateway
was only presented with the fraudulent settlement statement indicating that Daniels
owned the property. Johnson instead offers a number of speculative theories as to the
extent of Zicaro’s knowledge of and involvement with MSI, and, piling inference upon
inference, submits that we should infer that Zicaro and, by extension, Gateway, knew that
Johnson was the ultimate beneficiary of the Daniels mortgage. However, “an inference
based upon [] speculation or conjecture does not create a material factual dispute
sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914
F.2d 360, 382 n.12 (3d Cir. 1990). We reject this argument accordingly, and therefore
need not reach the question of whether such constructive knowledge would make
Johnson a consumer of credit under TILA or HOEPA.
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IV.
For the foregoing reasons, we will affirm the order of the District Court.
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