NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19-2956

_____________

ELEANOR and RALPH SCHIANO, as wife and husband, and individually,

 Appellants

v.

HOMEQ SERVICING CORPORATION AND HOMEQ SERVICING;

WELLS FARGO BANK, N.A.; WELLS FARGO BANK, N.A., Trustee, Park Place

Securities, Inc., 2004 WHQ2; OCWEN LOAN SERVICING, L.L.C., 

individually and as successor to HomEq Servicing

Corporation a/k/a HomEq Servicing (a/k/a Barclays Capital 

Real Estate, Inc., d/b/a HomEq Servicing Corporation and HomEq Servicing) 

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-05-cv-01771)

District Judge: Honorable Brian R. Martinotti

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Submitted Under Third Circuit LAR 34.1(a)

June 16, 2020

Before: JORDAN, MATEY, and ROTH, Circuit Judges.

(Filed November 20, 2020)
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OPINION*

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MATEY, Circuit Judge.

This is a long-running case—evidenced by the long list of facts running over thirtyfive pages in Eleanor and Ralph Schiano’s proposed third amended complaint. It is a story 

that stretches back some fifteen years and across multiple motions, all stemming from what, 

on its face, is an otherwise simple home mortgage. But we have arrived at the end, 

following this appeal of a motion for reconsideration capturing, for good measure, some 

dozen orders leading to the dismissal of the Schianos’ claims. Despite the not surprisingly 

long list of claimed errors, we will affirm the careful, detailed, and patient analysis of the 

District Court.

I. BACKGROUND

As is customary when we write only for the parties, we merely summarize the 

essential facts of the dispute. Eleanor and Ralph Schiano had credit card accounts with 

MBNA America Bank, N.A. (“MBNA/BOA”) and, after they fell behind on their 

payments, an arbitrator ordered they pay MBNA/BOA $34,413.80.

1 To pay their debt, the 

Schianos refinanced their home and took a loan from Argent Mortgage Company

(“Argent”) and directed Argent to pay MBNA/BOA. The Schianos say Argent never paid 

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 

not constitute binding precedent.

1 A later settlement with MBNA/BOA reduced the amount to about $29,000. 
3

off their MBNA/BOA balance, even though MBNA/BOA and Argent say they did. The 

Schianos also dispute the delinquency of another outstanding mortgage dating to 1992.

This case, and its many state and federal claims alleging a host of frauds, largely 

emerged from these loans. Over the years and through various orders, the District Court

dismissed the federal claims one by one, denied adding parties and claims as futile, and 

held it lacked jurisdiction over the remaining diversity claims. The Schianos now timely 

appeal most of those decisions. 

II. DISCUSSION

Jurisdiction is at the heart of this appeal. Federal district courts have jurisdiction to 

hear cases arising under federal law, 28 U.S.C. § 1331, and, if no plaintiff is a citizen of 

the same state as any defendant, controversies involving damages greater than $75,000, 28 

U.S.C. § 1332. Here, the District Court found that all the claims involving federal questions 

had been dismissed, denied, or otherwise stripped from the case. Then, it found a lack of 

complete diversity among the remaining parties. While the Schianos dispute both

conclusions, we conclude the District Court was correct.

A. No Federal Claims Remain

The Schianos offer several challenges to the District Court’s decisions on federalquestion claims. We review each, and find no error. 

1. Summary Judgment for Argent Was Appropriate

The Schianos first filed claims against Argent under the Truth in Lending Act 

(“TILA”), 15 U.S.C. § 1601 et seq., the Home Ownership and Equity Protection Act 
4

(“HOEPA”),

2

and the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 

et seq. Later complaints added additional claims grounded in alternate theories. After years 

of extensive discovery, the District Court granted summary judgment for Argent. The 

Schianos contend that summary judgment was improper without further discovery.

We exercise plenary review over summary judgment decisions, Minarsky v. 

Susquehanna Cnty, 895 F.3d 303, 309 (3d Cir. 2018), affirming only if, when making all 

reasonable inferences in favor of the Schianos, “there is no genuine dispute as to any

material fact and [Argent] is entitled to a judgment as a matter of law.” Liberty LincolnMercury, Inc. v. Ford Motor Co., 676 F.3d 318, 323 (3d Cir. 2012); see also Fed. R. Civ. 

P. 56(a). We review the decision to decline leave to amend for abuse of discretion but 

review the District Court’s “determination that amendment would be futile” de novo. U.S.

ex. rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014).

By the time the District Court dismissed the claims against Argent, and denied the 

request to add new allegations, there were no remaining material factual disputes. It was 

clear that the TILA, HOEPA, and RESPA claims were all untimely. 12 U.S.C. § 2614 (oneyear statute of limitations for § 2607 claims and three-years for § 2605 RESPA statute of 

limitations); 15 U.S.C. § 1640(e) (one-year TILA statute of limitations for relevant claims);

In re Cmty. Bank of N. Va., 622 F.3d 275, 283 (3d Cir. 2010) (RESPA, TILA/HOEPA 

claims subject to one-year statute of limitations). The Schianos’ allegations about the 

mortgage loan arose no later than 2004, and they did not bring their claims against Argent 

2 HOEPA is codified through amendments to various parts of TILA.
5

until, at the earliest, 2007, and for RESPA claims under § 2605, not until 2012. That is too 

late.

The Schianos counter that the TILA, HOEPA, and RESPA claims should be 

equitably tolled, citing evidence revealed after summary judgment. Courts reserve tolling 

for litigants pursuing their rights “diligently,” where “some extraordinary 

circumstance . . . prevented timely filing.” Menominee Indian Tribe of Wis. v. U.S., 136 S. 

Ct. 750, 755 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). That is not 

the case here. For example, when responding to Argent’s motion to dismiss, the Schianos

did not ask to defer a decision to seek more discovery. Fed. R. Civ. P. 56(d). Nor are we 

convinced that the extended nature of this litigation qualifies as an extraordinary 

circumstance, a proposition the Schianos raise, but do not support. Thus, the District Court

properly granted summary judgment for Argent and appropriately denied leave to amend.

3

2. The Pertinent FCRA Claims Were Appropriately Dismissed

The District Court dismissed the Schianos’ Fair Credit Reporting Act (“FCRA”)

claims

4

against Ocwen Loan Servicing, L.L.C. and MBNA/BOA for failure to state a claim. 

We exercise plenary review over dismissals under Federal Rule of Civil Procedure 

12(b)(6). Walker v. Coffey, 956 F.3d 163, 166 (3d Cir. 2020). Dismissal is appropriate if 

3 The Schianos’ proposed TILA and RESPA claims against Ameriquest Mortgage 

Company were similarly untimely. To the extent the Schianos attempt to resurrect RESPA 

and TILA claims against Ocwen and Wells Fargo Bank, N.A., those claims were properly 

dismissed as conclusory or otherwise deficient. The District Court also correctly denied the 

Schianos’ request to add AMC/ACC Capital Holdings as futile and JP Morgan Chase 

because the Schianos failed to properly move and there was no emergent reason to do so. 

4 15 U.S.C. § 1681 et seq.
6

the complaint fails to “contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Here, the complaint cannot meet 

the pleading standard.

To start, the Schianos did not allege that Ocwen “fail[ed] to undertake a reasonable 

investigation following . . . notice that it may become liable to a private litigant” under the

FCRA. SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 359 (3d Cir. 2011); see also 

15 U.S.C. § 1681i(a)(1)(A). Though the proposed third amended complaint alleged that 

Ocwen failed to “fully and properly investigate” the matter, (Reply Br. at 17 (quoting D.C. 

Dkt. No. 349-2 at 45)), “mere conclusory statements” do not satisfy their burden under the 

federal rules. Iqbal, 556 U.S. at 678. The claim against Ocwen was therefore properly 

dismissed.5

As for MBNA/BOA, the Schianos fail to sufficiently allege that the bank received 

notice of their dispute from a credit reporting agency, a necessary element under the FCRA. 

SimmsParris, 652 F.3d at 358; 15 U.S.C. § 1681i(a)(2)(A). Finally, the Schianos point to 

a handful of orders denying leave to add even more parties to the action. Each relate to the 

5 The Schianos also sought to amend to bring a FCRA claim against Ameriquest for 

allegedly eliminating information from their credit report. Any relevant conduct would 

have occurred in 2004, when Ameriquest owned and serviced the mortgage loan. But the 

Schianos did not seek to bring a FCRA claim against Ameriquest until 2009, well beyond 

the two-year statute of limitations. 15 U.S.C. § 1681p. Nor do they offer a persuasive 

argument for equitable tolling.
7

same federal claims already discussed, based on essentially the same allegations. Adding 

new parties would not have cured their defects, making the additions futile.6

B. Adding HomEq to the Suit Precluded Complete Diversity

Having disposed of the federal issues, our analysis turns to issues involving diversity 

jurisdiction. See Auto-Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 394 (3d Cir. 

2016). The District Court found a lack of complete diversity because the Schianos and 

HomEq Servicing Corporation are both New Jersey residents. “The burden of persuasion 

for establishing diversity jurisdiction, of course, remains on the party asserting it,” and to 

meet that burden they must “support their allegations by competent proof.” Hertz Corp. v. 

Friend, 559 U.S. 77, 96–97 (2010).

Here, the Schianos added “Barclays Bank, PLC, d/b/a as HomEq Servicing 

Corporation” and, when Barclays was dismissed, elected to continue against “Hom[E]q 

without the Barclays, d/b/a.” (Opening Br. at 18–19.) The District Court found that HomEq 

had citizenship in New Jersey, where it was incorporated. Though the Schianos disagree, 

they do not point to anything in the record showing that HomEq was not a New Jersey 

corporation. And it is immaterial whether HomEq became a nominal party, because the 

change of citizenship of a continuing party does not cure the jurisdictional defect. Grupo 

Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71, 575 (2004). As a result, the 

6 For example, in the proposed third amended complaint, the Schianos sought to 

raise FCRA claims against various other defendants, including Ameriquest. But like the 

FCRA claims against Ocwen and MBNA/BOA, they lack the required elements. City of 

Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp, 908 F.3d 872, 878 (3d Cir. 2018) 

(“Leave to amend is properly denied if amendment would be futile . . . .”).
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Schianos have not met their burden, and the District Court properly dismissed the 

remaining diversity claims. 

III. CONCLUSION

The Schianos have enjoyed more than their day in court while the District Court 

ably managed this matter to resolution. There is no error in the District Court’s conclusions, 

and we will affirm its decisions dismissing this case.