Rife v. One West Bank, F.S.B.

United States Court of Appeals
For the First Circuit

No. 16-1305

JOHN RIFE,

Plaintiff, Appellant,

v.

ONE WEST BANK, F.S.B.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC.; INDY MAC MORTGAGE SERVICES; DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee/Master Servicer,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.

Gershon Gulko on brief for appellant.
Marissa I. Delinks, Maura K. McKelvey, and Hinshaw &
Culbertson, LLP on brief for appellees.

September 29, 2017
 Per Curiam. In 2015, John Rife filed an 8-count

complaint in state court against the servicers, holders, and

assignees of his mortgage loan which had been executed in 2006.

The pertinent defendants include: One West Bank, F.S.B.; Mortgage

Electronic Registration Systems, Inc. (MERS); Indy Mac Mortgage

Services; and Deutsche Bank National Trust Company, as

trustee/master servicer. The matter was removed to federal court.

The district judge dismissed the entirety of Rife's complaint, and

Rife now seeks redress from this court. Relevant to the sole

appellate issue is count 1, a claim predicated on the Massachusetts

Predatory Home Loan Practices Act (PHLPA), Mass. Gen. Laws ch.

183C. Rife makes two narrow arguments before this court: (1) that

the judge erred in dismissing count 1 as untimely; and (2) that

the judge abused her discretion in dismissing his complaint without

leave to amend. We affirm. Because the parties are familiar with

the underlying facts that gave rise to this dispute, we jump right

into the analysis.

The gist of the lower court's decision to dismiss the

chapter 183C claim was quite simple: that claim was filed outside

the applicable 5-year statute of limitations, see Mass. Gen. Laws

ch. 183C, § 15(b)(1), and, "because the facts underlying Rife's

claim that the loan was predatory were contained in the mortgage

documents themselves," Rife could not avail himself of any tolling

mechanism, equitable or otherwise. Section 15(b)(1) of the PHLPA

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provides that "[a] borrower may bring an original action for a

violation of this chapter in connection with the loan within 5

years of the closing of a high-cost home mortgage[.]" It is

undisputed that the mortgage was executed on May 26, 2006, and

that Rife filed his chapter 183C claim on April 28, 2015--outside

the 5-year window. Therefore, whether count 1 survives a motion

to dismiss depends on whether his claim is subject to tolling. In

other words, we must decide if Rife has "'sketch[ed] a factual

predicate' that would provide a basis for tolling the statute of

limitations." Abdallah v. Bain Capital LLC, 752 F.3d 114, 119 (1st

Cir. 2014) (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar

Inc., 524 F.3d 315, 320 (1st Cir. 2008) (internal quotations

omitted)). "We review de novo the district court's dismissal of

a complaint for failure to state a claim based on statute of

limitations grounds." Santana-Castro v. Toledo-Davila, 579 F.3d

109, 113 (1st Cir. 2009).

In his opening brief, while appropriately laying out the

law on tolling, Rife completely fails to articulate how the facts

in this case support its application. Instead, Rife leaps to a

conclusion that "the trial court committed reversible error based

upon a finding that the claims . . . were time barred." In his

reply brief, however, Rife goes a step further--he claims that the

statute of limitations should be tolled until (on or about) January

11, 2013, when he first discovered that an assignment of his

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mortgage involving MERS back in 2009 had not been properly signed.

It is well-settled that arguments not raised in an opening brief,

but instead raised only in a reply, are deemed waived. Sparkle

Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir.

2015). However, assuming that the argument was somehow preserved,

it nevertheless lacks merit. In support of his chapter 183C claim

Rife alleges that:

[s]aid Note and Mortgage were the result of predatory
lending in that Indy Mac allowed interest-only payments
for any period of time; a payment option feature where
any one of the payment options was less than the
principal and interest fully amortized over the life of
the loan; the loan did not require full documentation of
income or assets; prepayment penalties that exceeded
section 56 of chapter 183 or applicable federal law; the
loan was underwritten with a loan-to-value ratio at or
above 90 per cent and the ratio of the borrower's debt,
including all housing-related and recurring monthly debt
to the borrower's income exceeded 38 per cent; or, the
loan was underwritten as a component of a loan
transaction in which the combined loan-to-value ratio
exceeded 95 per cent.

Clearly, the heart of count 1 are the terms contained in

the mortgage loan. In Massachusetts, "equitable tolling only

applies 'if a plaintiff exercising reasonable diligence could not

have discovered information essential to the suit.'" Abdallah, 752

F.3d at 120 (citing Bernier v. Upjohn Co., 144 F.3d 178, 180 (1st

Cir. 1998) (citations omitted)). We are not persuaded that the

facts of this case render tolling appropriate where the terms of

the loan themselves were in Rife's possession in 2006, and where,

with the exercise of reasonable diligence, he could have discovered

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and initiated his chapter 183C claim within the 5-year window.

Moreover, to the extent that Rife alleges unlawful practices

outside the terms of the loan themselves (i.e., unlawful

assignments and foreclosure proceedings) he makes no argument as

to why these actions fall within the purview of the PHLPA--a

statute primarily concerned with loan origination and lending

terms. See Mass. Gen. Laws ch. 183C. Ultimately, because Rife

"knew" or "should have known" about the alleged chapter 183C claim

in 2006, we find no reason to toll the applicable statute of

limitations. See Tagliente v. Himmer, 949 F.2d 1, 4 (1st Cir.

1991); see also Trans-Spec Truck Serv., Inc., 524 F.3d at 320

("Where the dates included in the complaint show that the

limitations period has been exceeded and the complaint fails to

'sketch a factual predicate' that would warrant the application of

either a different statute of limitations period or equitable

estoppel, dismissal is appropriate."). Therefore, Rife's chapter

183C claim is time-barred and its dismissal is affirmed.1

1 In his reply brief, Rife also argues that his proposed
second-amended complaint should "relate back" to a previous
complaint he had filed in the Massachusetts Land Court in 2010.
However, because Rife did not raise this argument until his reply
brief, we deem it waived. See Mills v. U.S. Bank, NA, 753 F.3d
47, 54 (1st Cir. 2014). We also treat as waived Rife's undeveloped
argument that the defendants violated Rule 8 of the Federal Rules
of Civil Procedure by first raising the affirmative defense of
statute of limitations "in a dispositive motion, rather than in a
responsive pleading . . . ." See id. (treating as waived
"embryonic arguments").

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 We move on to the motion for leave to amend the

complaint, which Rife argues should have been granted before his

case was dismissed. The district court denied his motion on the

basis that Rife's proposed additions could not "save any cause of

action in Rife's [complaint] nor assert a new cause of action that

is viable." The district court reasoned that the proposed

amendment to count 1 "would be futile," as "Rife's allegations as

to why his loan was predatory [did] not save his Chapter 183C cause

of action from the applicable 5-year statute of limitations."

"Although we ordinarily review a district court's denial of leave

to amend for abuse of discretion, we review de novo the district

court's determination of futility." Mills v. U.S. Bank, 753 F.3d

47, 54 (1st Cir. 2014) (citations omitted). Rule 15 of the Federal

Rules of Civil Procedure allows an amendment to a pleading "once

as a matter of course within . . . 21 days after serving it,

or . . . if the pleading is one to which a responsive pleading is

required, 21 days after service of a responsive pleading or 21

days after service of a motion under Rule 12(b), (e), or (f),

whichever is earlier." Fed. R. Civ. P. 15(a)(1). Rule 15 also

provides that "[i]n all other cases, a party may amend its pleading

only with the opposing party's written consent or the court's

leave." Fed. R. Civ. P. 15(a)(2). Leave to amend should be

"freely given . . . when justice so requires[,]" id., absent an

apparent or declared reason such as "futility of amendment." Foman

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v. Davis, 371 U.S. 178, 182 (1962). "'Futility' means that the

complaint, as amended, would fail to state a claim upon which

relief could be granted." Glassman v. Computervision Corp., 90

F.3d 617, 623 (1st Cir. 1996).

Rife argues that because defendants had previously

agreed to his request for an extension of time to file a response

to the defendant's motion to dismiss, "the Rule 15(a) one-time

right to amend [his complaint] should be allowed." Rife further

contends that if he is required to show "good cause" to amend his

complaint, he has done so because the proposed amendment has a

valid chapter 183C claim against defendants. We disagree. Rife's

proposed second-amended complaint raises new allegations which go

solely to the merits of his predatory loan claim such as additional

facts regarding his income at the time the mortgage was executed

in 2006. The proposed amendment does not, however, include any

factual allegations that would either plausibly place count 1

inside the 5-year window or support a tolling argument. The

precise avenue of his proposed amendment (as a one-time right or

with leave of the court) is immaterial because Rife is unable to

dodge the applicable statute of limitations. Accordingly, we agree

with the trial justice's decision to deny Rife leave to amend his

complaint because "the complaint, as amended, would fail to state

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a claim upon which relief could be granted." See Glassman, 90

F.3d at 623.2

Affirmed.

2 In his reply brief, Rife also argues that his sought-after
second amendment to his complaint should have been allowed as any
alleged "futility" of such amendment should have been properly
tested through a motion to dismiss. This argument, too, has been
waived. See Mills, 753 F.3d at 54.

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