IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LISA P. ROGERS, :

Plaintiff, :

v. : CA 15-00253-KD-C

MERCHANTS BANK, :

Defendant. :

REPORT AND RECOMMENDATION

This matter came before this Court on July 14, 2015 upon Merchants Bank’s 

(“Merchants”) Motion to Dismiss the Complaint filed by Lisa P. Rogers (“Ms. Rogers”). 

Mr. Blake B. Goodsell, Esq. appeared before this Court on behalf of Merchants. Ms. 

Rogers failed to appear. After considering arguments made in Merchants’ Motion to 

Dismiss, Ms. Rogers’ Opposition, and Merchants’ Reply thereto, and after taking oral 

arguments from Merchants, this Court recommends the following conclusions of law.

FACTUAL BACKGROUND

1. Merchants first extended a mortgage loan to Rogers on December 31, 1997.

2. The loan was secured by a Mortgage on property located at 20400 Highway 69, 

Coffeeville, Alabama 36524 (the “Property”).

3. The first loan was refinanced five more times with terms of three or five years.

4. The last loan of the series closed on March 11, 2011.

5. Since Merchants extended the original loan to Ms. Rogers, she has been the 

subject of bankruptcy proceedings four times with filing dates of January 18, 2000, 

November 27, 2000, February 6, 2004, and January 5, 2009.1

																																																												 1 Case Numbers 09-10028; 04-10677; 00-14766; 00-10167 (before the U.S. 

Bankruptcy Court for the Southern District of Alabama)

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6. In August 2014 the Property was struck by lightning, burned, and was a total 

loss.

7. Insurance proceeds satisfied the Loan in full.

8. Ms. Rogers filed this suit on May 13, 2015—over four years and two months after 

the most recent loan origination.

STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) examines the 

legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 

L.Ed.2d 80 (1957). The factual allegations must be sufficient to make the claim for relief 

more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 

1955, 167 L.Ed.2d 929 (2007). “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 

its face.’ A claim has facial plausibility when the pleaded factual content allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) 

(quoting Twombly, 550 U.S. at 570). “When considering a motion to dismiss, all facts set 

forth in the plaintiff's complaint are to be accepted as true and the court limits its 

consideration to the pleadings and the exhibits attached thereto.” Grossman v. 

Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000) (internal quotes omitted).

DISCUSSION

1. Failure to Prosecute

A district court is authorized to dismiss an action for failure to prosecute or to 

obey a court order or federal rule. FED. R. CIV. P. 41(b). A court’s power to dismiss is an 

inherent aspect of its authority to enforce its orders and ensure prompt disposition of 

lawsuits. Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985); citing Link v. Wabash R.R.

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Co., 370 U.S. 626, 630–31, 82 S.Ct. 1386, 1388–89, 8 L.Ed.2d 734 (1962). The decision to 

dismiss for want of prosecution lies within the trial court’s discretion and can be 

reversed only for an abuse of discretion. Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th 

Cir. 1980).

This Court issued a June 10, 2015 Order setting briefing deadlines for Ms. Rogers’ 

Opposition and Merchants’ Reply thereto. The June 10th Order also set the pending 

motion for a hearing on July 14, 2015 at 2:00 p.m. Ms. Rogers received the Court’s Order 

as evidenced by her timely-filed Opposition on June 25, 2015—the day before this 

Court’s deadline. Despite Ms. Rogers’ knowledge of the hearing date and time, she 

failed to appear. Ms. Rogers’ failure to abide by this Court’s Order demonstrates

disregard for the time of this Court and for the time of Merchants. This Court is 

empowered to dismiss Ms. Rogers’ Complaint for her lack of diligence in the 

prosecution of this suit, which she initiated. Her failure to prosecute, which is 

unexplained, appears to be an abandonment of her claims that have now been shown to 

be time-barred. 

2. Ms. Rogers’ claims under the Truth in Lending Act (“TILA”) and the Real 

Estate Settlement Procedures Act (“RESPA”) are time-barred.

Assuming that Ms. Rogers’ claims meet minimum pleading standards, her 

origination-based claims are nonetheless facially time-barred as a matter of law. 

Specifically, each and every one of Ms. Rogers’ claims relate to and entirely concern 

alleged failures to make disclosures at the March 11, 2011 loan closing, which occurred 

more than four years before Ms. Rogers filed suit on May 13, 2015.

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																																																												 2 To the extent that Ms. Rogers’ allegations concern any earlier loan closings, those 

too would be time-barred.

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More specifically, the Complaint is premised on allegations that Merchants failed 

to deliver disclosures at closing as required by the TILA. (Complaint, passim).3 TILA 

claims are subject to a three-year statute of limitations. 15 U.S.C. § 1640(e). Thus, those 

causes of action became time-barred over one-year before this action was filed. Ms. 

Rogers’ rescission demand under TILA is also untimely because according to the plain 

language of the governing statute, Ms. Rogers’ 3-day right of rescission has a limitations 

period that “. . . expire(s) three years after the date of consummation of the transaction.” 

15 U.S.C. § 1635(f); Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015). Ms. 

Rogers presented no evidence in her Complaint or Opposition indicating that she 

provided a rescission demand within three years of the loan closing as required to 

maintain her cause of action for rescission. Consequently, this Court recommends 

dismissal of Ms. Rogers’ origination-based TILA claims, with prejudice.

																																																												 3 Ms. Rogers’ sixteen count Complaint references the following specific violations 

of TILA: Count I – (All of TILA); Count II – 15 U.S.C. § 1635 (providing a right a rescission three 

days after loan closing); Count III – 15 U.S.C. § 1638(a)(2)(B ) (requiring disclosure of a 

consumer’s right to obtain a listing of the amount financed upon a written request), (a)(9) 

(requiring a statement that a security interest was taken in property), (a)(12) (requiring a 

statement that the consumer should refer to loan documents for details about nonpayment, 

default, acceleration, prepayment, etc.), Regulation Z, Part 226.17 (general disclosure 

requirements); Count IV – 12 C.F.R. § 226.17(a)(1) (prescribing general form of disclosures); 

Count V – 12 C.F.R. § 226 (generally); Count VI - 12 C.F.R. § 226.18(c) (requiring itemization of 

amount financed, including the prepaid finance charge); Count VII 12 C.F.R § 226.18(p) 

(requiring reference to the document with information about nonpayment, default, acceleration, 

prepayment, etc. [implementing regulation for 15 U.S.C. § 1638(a)(12), which Ms. Rogers 

references in Count III]); Count VIII – (all of TILA and Regulation Z referenced); Count IX – 12 

C.F.R. § 226.4 (governing disclosure of finance charges); Count X – 12 C.F.R. § 226.21 (governing 

treatment of credit balances); Count XI – 12 U.S.C. § 2610 (prohibiting fees for preparation of 

various closing disclosures [this is not consistent with the allegations of this paragraph 

pertaining to an alleged failure to disclose calculation of mortgage balance]); Count XII – 12 

C.F.R. § 226.18(p) (same as cited in Count VII); Count XIV – (citing all of RESPA, but discussing 

disclosure of origination fees); Count XV - 12 C.F.R. § 226.18 (same as cited in multiple other 

counts involving contents of disclosures generally; Count XVI – 12 C.F.R. § 226.4 (discussing 

disclosure of finance charges). Ms. Rogers also references the following two violations of 

RESPA: Count VI – 12 U.S.C. § 2601 (statement of congressional intent behind RESPA); Count 

XIII – (citing all of RESPA, but discussing an alleged failure to properly disclose interest rates). 

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Ms. Rogers also asserted two causes of action under the Real Estate Settlement 

Procedures Act (“RESPA”). (Complaint, ¶¶ 30-32; 49-51). These claims are also barred 

by the statute of limitations. Specifically, RESPA claims are subject to a one-year

limitations period, which begins to accrue on the date of the occurrence. 12 U.S.C. § 

2614. Here, Ms. Rogers’ RESPA claims pertaining to the loan closing that occurred on 

March 11, 2011 are now untimely and must be dismissed as a matter of law. 

While Ms. Rogers did not raise the issue in her briefing, it stands to note that the 

doctrine of equitable tolling, also does not excuse the untimeliness of Ms. Rogers’

Complaint. It is true that “[u]nless Congress states otherwise, equitable tolling should be 

read into every federal statute of limitations.” Ellis v. Gen. Motors Acceptance Corp., 160 

F.3d 703, 706 (11th Cir.1998); Young v. United States, 535 U.S. 43, 49 (2002). Claims under 

TILA are subject to equitable tolling because it is a remedial statute designed to protect 

consumers against fraud and that it would be anomalous to reward defendants who 

disguise their fraud. Boudin v. Residential Essentials, LLC, 2007 WL 2023466 (S.D. Ala. 

July 10, 2007), citing Ellis, 160 F.3d at 707-08. The same is true of claims under RESPA

because it too is remedial in nature. See Hardy v. Regions Mortg., Inc., 449 F.3d 1357, 1359 

(11th Cir. 2006); Ellis, 160 F.3d at 707. Where equitable tolling applies, plaintiffs may sue 

after the statutory period has expired if they have been prevented by inequitable 

circumstances from doing so previously. See Williams v. Saxon Mortg., Servs. Inc., 2007 

WL 2828752, (S.D. Ala. Sept, 27, 2007) citing Ellis, 160 F.3d at 706. Importantly however, 

equitable tolling must be based upon fraudulent concealment lest the exception 

swallow the rule. As this Court has previously observed, if “the failure to make TILA 

disclosures also tolled the limitations period for pursuing TILA claims, then the statute 

of limitations would be rendered meaningless because those nondisclosures are the 

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very essence of a TILA violation in the first place.” Williams, 2007 WL 2828752 * 4 

(internal citations omitted). 

Fraudulent concealment entails a heightened pleading standard that requires 

that a plaintiff prove “three necessary elements: (1) that the defendant actively misled 

the plaintiff; (2) which prevented the plaintiff from recognizing the validity of her claim 

within the limitations period; and (3) where the plaintiff’s ignorance is not attributable 

to her lack of reasonable due diligence in attempting to uncover the relevant facts.” 

White v. PNC Fin. Services. Group, Inc, 2014 WL 4063344 *3 (E.D. Pa. Aug., 18, 2014); 

citing Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 509 (3d Cir.2006). Here, Ms. Rogers 

has not stated a claim for fraudulent concealment as required to maintain an equitable 

tolling claim. FED. R. CIV. P. 9(b); see also United States ex rel. Atkins v. McInteer, 470 F.3d 

1350 (11th Cir. 2006). Even the most expansive reading of Ms. Rogers’ allegations could 

only uncover an implicit argument that the limitations period should be tolled simply 

because Merchants allegedly failed to make the required disclosures under TILA and 

RESPA. Ms. Rogers merely alleges that the disclosures were not given—she does not 

contend that Merchants somehow obscured relevant information that prevented Ms. 

Rogers from discovering the existence of her TILA and RESPA causes of action. Absent 

some affirmative deception by Merchants, the mere nondisclosure does not, by itself, 

justify equitable tolling of the limitations period. Id. citing McAnaney v. Astoria Fin.

Corp., 2007 WL 2702348, *9 (E.D.N.Y. Sept. 12, 2007). As such, equitable tolling does not 

save Ms. Rogers untimely Complaint, and this Court recommends dismissal her claims

as time-barred.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, the undersigned recommends entry 

of an order dismissing Ms. Rogers’ Complaint, with prejudice, because she failed to 

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diligently prosecute the action and because Ms. Rogers’ causes of action, which entirely 

sound under TILA and RESPA, are facially barred by the relevant statute of limitations.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 

72(b); S.D. Ala. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, 

“[a] party failing to object to a magistrate judge’s findings or recommendations 

contained in a report and recommendation in accordance with the provisions of 28 

U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based 

on unobjected-to factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to object. In the absence 

of a proper objection, however, the court may review on appeal for plain error if 

necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection 

must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this the 23rd day of July 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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