United States Court of Appeals

For the First Circuit

No. 12-1462

DYNELL LATSON and ANNABEL LATSON,

Plaintiffs, Appellants,

v.

PLAZA HOME MORTGAGE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,

Souter, Associate Justice, *

and Selya, Circuit Judge.

Robert D. Loventhal on brief for appellants.

AiVi Nguyen on brief for appellee.

February 27, 2013

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme *

Court of the United States, sitting by designation.
SOUTER, Associate Justice. Massachusetts residents

Dynell and Annabel Latson sued their mortgage lender, Plaza Home

Mortgage, Inc., alleging state common law and statutory violations

in making two house loans. The district court dismissed for

failure to state a claim, Fed. R. Civ. P. 12(b)(6), and the Latsons

appealed. We review the decision de novo, accepting as true all

well-pleaded facts and drawing all reasonable inferences from them

in favor of the plaintiffs-appellants. Tasker v. DHL Ret. Sav.

Plan, 621 F.3d 34, 38 (1st Cir. 2010). The enquiry is whether "the

combined allegations, taken as true, . . . state a plausible,

[rather than] merely conceivable, case for relief." 

Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st

Cir. 2010). We think they do not as to the Latsons' common law

claim, and the substantive issues raised under the statute are

obviated by untimeliness. We accordingly affirm.

If true, the complaint, with the attached exhibits, see

Blackstone Realty LLC v. FDIC, 244 F.3d 193, 195 n.1 (1st Cir.

2001), would establish the following facts. In March 2006, the

Latsons bought a three-family dwelling in Dorchester,

Massachusetts, financing the entire $525,000 price with two

mortgage loans from Plaza. The first, for $367,500.00, had a

starting interest rate of 6.75% adjustable as high as 11.75%. The

second, for $157,500.00, had a fixed rate of 11.50%.

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In August 2011, more than five years later and after the

collapse of the housing market, the Latsons hired a lawyer, who

sent Plaza a demand letter citing the Massachusetts consumer

protection statute, Mass. Gen. Laws ch. 93A, § 9(3). It included

allegations that Plaza had not adequately disclosed the terms of

the Latsons' loans before their signing. The Latsons sought

damages of "at least $100,000" as well as "interest, costs and

attorneys' fees." Plaza rejected the claims, and the Latsons filed

this action in federal district court under its diversity

jurisdiction.

They charged that in making the two home loans Plaza

breached the implied covenant of good faith and fair dealing under

Massachusetts law and violated the Commonwealth's consumer

protection statute, Mass. Gen. Laws ch. 93A, §§ 2, 9. The specific

allegations were that prior to closing Plaza failed to provide them

with a proper commitment letter, good-faith estimate, or other

documents required by the Real Estate Settlement Procedures Act

(RESPA), 12 U.S.C. §§ 2601–2617, and gave them insufficient

opportunity to review the terms of the loans. They also claimed

that Plaza either "knew or should have known" that an appraisal of

the property that the Latsons obtained at Plaza's request was "too

high." The Latsons asserted that all these acts and omissions were

actionable under both their common-law and statutory claims.

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In its motion to dismiss, Plaza denied that the Latsons

had alleged any conduct that breached the covenant of good faith

and fair dealing or violated chapter 93A; it also argued that the

statute of limitations had run on the statutory claim. The Latsons

filed no response, and the district court granted the motion. The

Latsons moved for reconsideration, which the district court

refused, and then filed this timely appeal.

The Massachusetts covenant of good faith and fair dealing

is taken to be implied in every contract, Anthony's Pier Four, Inc.

v. HBC Assocs., 583 N.E.2d 806, 820 (Mass. 1991), and provides

"that neither party shall do anything that will have the effect of

destroying or injuring the right of the other party to receive the

fruits of the contract," id. (quoting Drucker v. Roland Wm. Jutras

Assocs., 348 N.E.2d 763, 765 (Mass. 1976)) (internal quotation mark

omitted). To the point here, the covenant only "governs conduct of

parties after they have entered into a contract." Mass. Eye & Ear

Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 230 (1st

Cir. 2005) (citing Levenson v. L.M.I. Realty Corp., 575 N.E.2d 370,

372 (Mass. App. Ct. 1991)). Once they have done so, the covenant

"may not . . . be invoked to create rights and duties not otherwise

provided for in the existing contractual relationship, as the

purpose of the covenant is to guarantee that the parties remain

faithful to the intended and agreed expectations of the parties in

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their performance." Uno Rests., Inc. v. Bos. Kenmore Realty Corp.,

805 N.E.2d 957, 964 (Mass. 2004).

Here, the guaranteed "fruits" of the Latsons' two loan

contracts with Plaza were the loan funds, which the Latsons

unquestionably received, subject to repayment terms they do not

claim to have been violated. The allegedly wrongful conduct they

describe all occurred before the contracts existed, not in

violation of their terms after formation. The injuries claimed

were in contract preparation, not contract performance. Although

the Latsons assert that the covenant applies to parties simply

negotiating a contract, the cases they cite for this proposition

contain no such statements. See, e.g., Finard & Co. v. Sitt Asset

Mgmt., 945 N.E.2d 404 (Mass. App. Ct. 2011). The district court

correctly dismissed the good faith and fair dealing claim.

Next is the charge that Plaza violated the Massachusetts

consumer protection statute, which gives a cause of action to those

"injured" by "unfair or deceptive acts or practices in the conduct

of any trade or commerce." Mass. Gen. Laws ch. 93A, §§ 2(a), 9(1);

see also Hershenow v. Enter. Rent-A-Car Co. of Bos., 840 N.E.2d

526, 534 (Mass. 2006). The district court dismissed this claim on

the grounds that the Latsons had not pleaded acts by Plaza that

were actually unfair or deceptive, and that in any event they had

not alleged a causal connection between the damages alleged and the

acts said to have been unfair or deceptive.

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We do not reach these issues, however, because the

statute of limitations is an even more straightforward basis for

dismissing the chapter 93A claim. See Carroll v. Xerox Corp., 294

F.3d 231, 241 (1st Cir. 2002) (we may affirm an order granting a

motion to dismiss for any reason supported by the record). The

limitations period for chapter 93A actions is four years from

injury. Mass. Gen. Laws ch. 260, § 5A; Cambridge Plating Co. v.

Napco, Inc., 991 F.2d 21, 25 (1st Cir. 1993); accord Int'l Mobiles

Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 560 N.E.2d 122,

125-26 (Mass. App. Ct. 1990). The Latsons signed the mortgage

agreements at issue in March 2006, and their complaint alleges that

date as the commencement of their injury, described as payment of 1

too much interest as required by "economically unviable" loan

terms. The four-year period, therefore, began to run on the

signing date when the interest began to accrue. They did not send

the required 93A demand letter, however, until August 2011, more

than a year after the limitations period expired.

Although the Latsons' motion to reconsider suggested that

the district court should toll the limitations period under the

discovery rule or the fraud exception, they invoke no basis for

applying either one. While the discovery rule stops the

The Latsons' complaint dates their injury to March 21, 2000, 1

but this is an obvious typographical error; clearly, they intended

to refer to March 21, 2006, the date they signed the loan

agreements.

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limitations clock until a plaintiff knows (or reasonably should

know) that he has or may have been harmed by a defendant's conduct,

see Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 741 (Mass. 1990), so

far as it matters in this case, it does so only when the injuries

are "inherently unknowable" at the moment of their occurrence. 

Patsos v. First Albany Corp., 741 N.E.2d 841, 846 & n. 8 (Mass.

2001) (internal quotation marks omitted). Here the interest terms

and the implications of their burdens were apparent when the

Latsons signed and got their money, a conclusion underscored by the

Massachusetts rule that the terms of written agreements are binding

whether or not their signatories actually read them. See St. Fleur

v. WPI Cable Sys./Mutron, 879 N.E.2d 27, 35 (Mass. 2008).

As for the argument that a fraud exception tolls the

statute of limitations, neither the complaint nor the Latsons'

appellate brief speaks of any fact indicating fraud by Plaza. 

Accordingly, the chapter 93A claim is time barred and was properly

dismissed.

Affirmed.

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