17-4003 Latouche v. Wells Fargo Home Mortgage Inc. 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5 th day of February, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, PETER W. HALL, GERARD E. LYNCH, Circuit Judges.

_____________________________________ Michelle Latouche, Plaintiff-Appellant , v. 17-4003 Wells Fargo Home Mortgage Inc., Wells Fargo Bank, N.A., Asef Mortgage Capital, Steven Shahipour, Panebianco Thomas, Esq., Steven J. Baum, Howard Associate Inc., Bruce Howard, Plaza Homes LLC, Albert Basal, Fred Basal, Alfr ed Basal, Stein and Shieldlower LLP, Michael Craigton, Janus Abstract Inc., Sahriar Afshari, Higinio Martinez, Vigo Construction Corp., Defendants-Appellee s.

_____________________________________FOR PLAINTIFF-APPELLANT: M ICHELLE L ATOUCHE , pro se, Cambria Heights, NY.

FOR DEFENDANTS-APPELLEES: C HRISTIAN F LETCHER , E SQ ., Chava Brandriss, Esq., Lisa J. Fried, Esq., Hogan Lovells US LLP, New York, NY ( for Wells Fargo Home Mortgage Inc. and Wells Fargo Bank, N.A.). Steven Shahipour, pr o se, Albertson, NY. Richard Francis Harrison, Esq., Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale, NY ( for Plaza Homes LLC, Albert Basal, Fred Basal, and Alfred Basal). Matthew J. Bizzaro, Esq., Marian C. Rice, Esq., L’Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY ( for Stein and Shieldlower LLP and Michael Craigton). Michael Coffey, Esq., Nancy Quinn Koba, Esq., Wood Smith Henning & Berman, LLP, New York, NY ( for Janus Abstract Inc.). Steven J. Baum, Esq., pro se, Amherst, NY. Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Korman, J .; Mann, M.J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Michelle Latouche sued Wells Fargo Home Mortgage Inc. and Wells Fargo Bank NA (collectively “Wells Fargo”), and sixteen other na med defendants, for violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq., and state law, in connection with the sale and mortgage of real property. Latouche alleged a fraudulent scheme concerning the purchase and repair of the subject premises. The district c ourt adopted the magistrate judge’s Report and3 Recommendation (“R&R”), dismissing Latouche’s TILA claim as untim ely and declining to exercise supplemental jurisdiction over the rema ining state law claims. On appeal, Latouche argues that the district c ourt erred by dismissing her TILA clai m as time barred. Latouche does not challenge the district court’s decision to d ecline jurisdiction over her state law claims. We assume the parties’ familiarity with the underlying facts, the proc edural history of the case, and the issues on appeal. We “review the grant of a motion to dismiss de novo , accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time

Warner Cable , 714 F.3d 739, 740–41 (2d Cir. 2013). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough facts to st ate a claim to relief th at is plausible on its

face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (Although allegations in a complaint are assumed to be true, this tenet is “inapplicable to legal co nclusions” and “[t]hreadbare recitals of the elemen ts of a cause of action, supported by mere conclusory statements, do not suffice.”).

I. Federal TILA Claim Latouche seeks monetary damages for a TI LA violation under 15 U.S.C. §§ 1601 et seq., alleging hidden costs, discrepancies, and mi srepresentations in documents concerning her purchase of a home in Brooklyn, New York. TILA was enacted to promote the “informed use of credit” by consumers. Household Credit Servs., Inc. v. Pfennig , 541 U.S. 232, 235 (2004) (quoting 15 U.S.C. § 1601(a)).4 A. Statute of Limitations The district court correctly he ld that Latouche’s TILA cl aim was time-barred. Private

actions based on violations of TILA must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). While this Court has not spoken directly on the issue, among lower courts in this circuit, “[ i]t is well-settled law that in closed-end credit transactions, like [a mortgage loan], the date of the occurrence of violation is no later than the date the plaintiff enters the loan agreement or, possibly, when defendant performs by transmitting the funds to plaintiffs.” McLean-Laprade v. HSBC , No. 12 CV 1774, 2013 WL 3930565, at *3 (N.D.N.Y. July 30, 2013) (quoting Cardiello v. The Money Store, Inc. , No. 00 Civ. 7332, 2001 WL 604007, at *3 (S.D.N.Y. June 1, 2001) (collectin g cases from numerous circuits)). Thus, a suit for damages under TILA, in connection with a mortgage loan, may not be brought more than one year after entering into that loan. Barnett v. Countrywide Bank, FSB , 60 F. Supp. 3d 379, 392 (E.D.N.Y. 2014) (TILA statute of limitations runs from the date the borrower accepts the creditor’s extension of credit); Arroyo v. PHH Mortg. Corp. , No. 13 CV 2335, 2014 WL 2048384, at *12 (E.D.N.Y. May 19, 2014) (“[C]ourts have made abundantly clear that the statute of limitations [for TILA claims] runs from the time of the occurrence, not the time of discovery.”). Here, Latouche entered into the original loan ag reement in 2002 and subseque ntly entere d into the loan modification agreement in 2009. She did not assert her TILA claim until 2016, many years after the one-year limita tions period had expired. 1

1 To the extent that Latouche now raises an argument on appeal invoking the conti nuing violation doctrine, the Court notes that the cases cited by Latouche do not involve TILA claims. See United States v. Rivera-Ventura , 72 F.3d 277, 281 (2d Cir. 1995) (in volving the “continuing offense” of being found illegally in the Un ited States after deportation); Leonhard v. United States , 633 F.2d5 a. Equitable Tolling

As there is no doubt that Latouche filed her TILA claim well outside the one-year limitations period, the district court properly consid ered whether she adequately pled a basis for equitable tolling. Equitable to lling applies “in rare and excep tional circumstances, where . . . extraordinary circumstances prevented a party fro m timely performing a required act, and . . . the party acted with reasonable diligence throughout the period [s]he [sought] to toll.” Walker v.

Jastremski , 430 F.3d 560, 564 (2d Cir. 2005) (internal quotation marks omitted); see also ZerilliEdelglass v. New York City Transit Auth. , 333 F.3d 74, 80–81 (2d Cir. 2003). To qualify for equitable tolling, a plaintiff must show that some extraordinary circumstance, such as fraudulent concealment of the cause of action, stood in the wa y of bringing suit and that she had been pursuing her rights diligently. Ellul v. Congregation of Christian Bros. , 774 F.3d 791, 801 (2d Cir. 2014).

This Court reviews a district co urt’s decision to deny equitable tolling for abuse of discretion. Phillips v. Generations Family Health Ctr. , 723 F.3d 144, 149 (2d Cir. 2013); Zerilli-Edelglass , 333 F.3d at 81. Latouche’s conclusory allegations of non-disc losure, such as hidden costs in documents concerning purchase of the premises, do not amount the sort of extraordin ary circumstances that

599, 613 (2d Cir. 1980) (claim for damages involvi ng removal and concealment of children). District courts in this circuit have held that the continuing viol ation doctrine doe s not apply to TILA claims. Craig v. Saxon Mortg. Servs., Inc. , No. 13 CV 4526, 2015 WL 171234, at *9 (E.D.N.Y. Jan. 13, 2015) (rejecting continuing viol ation theory and dismissing time-barred TILA claim); Van Pier v. Long Island Sav. Bank, FSB , 20 F. Supp. 2d 535, 538–39 (S.D.N.Y. 1998) (an “alleged continuing failure to provi de TILA disclosures is not a ‘c ontinuing violation’ for purposes of the one-year statute of limitations”). However, because Latouche failed to raise this argument below, this Court need not address th e merits of this argument on appeal. See Greene v. United States , 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well-es tablished general rule that an appellate court will not consider an issue raised for the first time on appeal.”).6 would warrant tolling. See Williams v. Aries Fin., LLC , No. 09 CV 1816, 2009 WL 3851675, at *7 (E.D.N.Y. Nov. 18, 2009) (“The essence of [plaintiff’ s] argument is that the defendants’ failure

to disclose the terms of the [mortgage] loan amounted to fr audulent concealment. . . . If

nondisclosure tolled the statute of limitations for a claim brought based on the nondisclosure, the statute of limitations would have no effect.”). To the extent Latouche argues that defendants actively concealed their fraud by failing to produce at closing an appraisal report that she contends was misleading as to the value of the property, which was not produced until discovery in an ongoing state foreclosure action, she did not plead su ch concealment in her complaint. Nor does she allege in her complaint that she was actively prevented from obtaining or reviewing the report. On the contrary, with respect to the appraisal report, the complaint alleged that the report was prepared to defraud Latouche and “presented to [her ] as a true reliable estimate of the worth of the premises.” And Latouche only conclusorily alle ged equitable tolling in her papers opposing the defendants’ motion to dismiss. In any event, it is not clear how inaccuracies in the appraisal report could have given rise to a TILA claim, the only federal claim in the complaint, rather than

to her state fraud claims. Accord ingly, the district court did not abuse its discretion in dismissing Latouche’s TILA claim as untimely.

We have considered all of Latouche’s remaining argumen ts and find them to be without merit. For the foregoing reasons, th e judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court