2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-2013

John Kliesh v. Select Portfolio Servicing Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3955

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Recommended Citation

"John Kliesh v. Select Portfolio Servicing Inc" (2013). 2013 Decisions. Paper 977.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3955

___________

JOHN KLIESH,

Appellant

v.

SELECT PORTFOLIO SERVICING, INC.;

CREDIT SUISSE FIRST BOSTON (U.S.A.);

ECKERT, SEAMANS, CHERIN & MELLOTT, LLC

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-12-cv-00548)

District Judge: Honorable Michael M. Baylson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 17, 2013

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: April 17, 2013 )

___________

OPINION

___________

PER CURIAM

John Kliesh commenced this action in the District Court against Defendants Select 

Portfolio Servicing, Inc. (“SPS”), Credit Suisse First Boston (U.S.A.) (“CS”), and Eckert 
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Seamans Cherin & Mellott, LLC (“ESCM”)1demanding that they rescind his mortgage 

contract and that they pay him $10 million in damages. The matter arises out of SPS’s 

efforts to collect mortgage payments from Kliesh and its ultimate decision to foreclose on 

his home. Kliesh obtained a mortgage in September 1997; the mortgage was later 

assigned to SPS. Over the years, SPS wrote numerous letters and made repeated phone 

calls to Kliesh in an effort to collect the money that Kliesh owed. When these efforts 

proved unsuccessful, SPS instituted a foreclosure action in the Bucks County Court of 

Common Pleas.

Kliesh raised numerous counterclaims in the state court action alleging, generally, 

that the mortgage agreement itself was illegal, that SPS had charged Kliesh unwarranted 

fees, and that SPS’s collection actions violated federal law. The Court of Common Pleas 

granted summary judgment to SPS. The Court concluded that Kliesh’s various defenses 

were “simply attempts to prolong this litigation with further baseless allegations.” The 

Superior Court affirmed and the Pennsylvania Supreme Court denied Kliesh’s petition for 

allowance of appeal.

 

1 Credit Suisse First Boston (U.S.A) is the parent company of Select Portfolio 

Servicing, Inc., and Eckert Seamans Cherin & Mellott, LLC is the law firm representing 

both companies.
3

In June 2009, Kliesh filed a complaint in the United States District Court for the 

Eastern District of Pennsylvania (“the First Federal Action”).2 The District Court granted 

SPS’s and CS’s motions to dismiss. We affirmed on appeal. Kliesh v. Select Portfolio 

Servicing Inc., 419 F. App’x 268 (3d Cir. 2011).

In January 2012, Kliesh commenced the instant action in the District Court (“the 

Second Federal Action”), raising the following claims against SPS and CS: 

(1) fraudulent foreclosure action; (2) contract fraud; (3) unjust enrichment; (4) civil 

conspiracy; (5) violations of the Pennsylvania State Constitution; (6) damages by way of 

harassment. Kliesh also asserted claims 4, 5, and 6 against and ESCM. SPS, CS, and 

ESCM jointly moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the 

Federal Rules of Civil Procedure. They also filed a motion to preclude Kliesh from 

commencing any further actions. The District Court denied the motion to preclude, but 

 

2

In that action, Kleish raised the following claims against SPS and CS: 

(1) fraudulent foreclosure action; (2) violation of the Truth in Lending Act (TILA), 15 

U.S.C. §§ 1601-67; (3) unlawful enrichment; (4) violation of the Fair Debt Collection 

Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p; (5) violation of the Fair Credit 

Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x; and (6) intentional infliction of 

emotional distress.
4

granted the motion dismiss on multiple grounds.3 Kliesh filed a motion for 

reconsideration, which the District Court also denied. This appeal followed.

We have jurisdiction under 28 U.S.C. § 1291 and exercise de novo review over the 

District Court’s order. Ballentine v. United States, 486 F.3d 806, 808 (3d Cir. 2007).

We agree with the District Court’s determination that all of Kliesh’s claims are 

barred by their respective statutes of limitations.4 See 15 U.S.C. § 1640(e) (one-year 

statute of limitations for claims under TILA); 42 Pa. Cons. Stat. § 5524(7) (two-year 

statute of limitations for claims of emotional distress, fraud, civil conspiracy, and 

violations of the state Constitution); Id. at § 5525(a)(4) (four-year statute of limitations 

for claims of unjust enrichment). The statute of limitations begins to run on the date that 

“the cause of action accrued.” Id. at § 5502(a). A cause of action accrues “when the 

injury is inflicted.” Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005).

Kliesh’s causes of action accrued in October 2005 when SPS commenced the state 

foreclosure action against Kleish after providing him with all of the required pre-

 

3

The District Court determined that: a) Claims 1 and 2 were barred by the 

Rooker-Feldman doctrine, see District of Columbia Court of Appeals v. Feldman, 460 

U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), because they were 

“inextricably intertwined” with the state foreclosure action; b) Counts 4, 5, and 6 failed to 

sufficiently state claims for relief; c) collateral estoppel barred Counts 1, 2, 3, and 6 

because they were previously litigated in the state foreclosure action and/or the First 

Federal Action; d) Counts 4 and 5 were barred by res judicata; and e) Counts 1 through 6 

were barred by their respective statute of limitations.

4 Because we affirm the dismissal of Kliesh’s complaint on this basis, we need not, 

and accordingly do not, address whether the District Court was also correct to dismiss the 

complaint on the additional grounds offered in its opinion.
5

foreclosure notices. Kleish did not file the complaint at issue here until January 2012, 

over six years later.

We further agree with the District Court that Kleish is not entitled to equitable 

tolling. Equitable tolling, applied sparingly, see Irwin v. Dep’t of Veterans Affairs, 498 

U.S. 89, 90 (1990), is appropriate in such circumstances as “(1) where the defendant has 

actively misled the plaintiff respecting the plaintiff’s cause of action; (2) where the 

plaintiff in some extraordinary way has been prevented from asserting his or her rights, or 

(3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong 

forum.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 

1994). Although Kleish argued that the ESCM “conspired” with SPS to prevent him 

from recognizing the validity of his claims within the limitations period, we agree with 

the District Court that his vigorous defense of the state foreclosure action, and of the First 

Federal Action, belies any such argument. We also reject as meritless Kliesh’s assertion

that the District Court was biased in rendering these determinations.

To the extent Kliesh argues that he should have been given leave to amend his 

complaint, we agree with the District Court that further amendment would be futile. See

Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Kliesh’s claims fail 

as a matter of law, and he could not cure these deficiencies with further pleading.

Finally, we discern no abuse of discretion in the District Court’s denial of Kliesh’s 

motion for reconsideration. Kliesh did not demonstrate any basis for granting the motion, 

such as an intervening change in controlling law, new evidence, or the need to correct 
6

clear error of law or fact or prevent manifest injustice. See Lazaridis v. Wehmer, 591 

F.3d 666, 669 (3d Cir. 2010).

Accordingly, we will affirm the District Court’s order dismissing Kliesh’s 

complaint. Appellees’ request for imposition of sanctions pursuant to Federal Rule of 

Appellate Procedure 38 is denied. We will, however, tax costs against Kliesh under 

Federal Rule of Appellate Procedure 39. See Fed. R. 39(a)(2).