### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20230 Summary Calendar

MAE HELEN MCCRIMMON, Plaintiff-Appellant,

versus WELLS F ARGO B ANK, N.A.; MANN & STEVENS, P.C.; ROBERT L. HORN; B-SURE FINANCIAL MORTGAGE, L.L.C.; NOVASTAR MORTGAGE, INCORPORATED; MILA, INCORPORATED; WEEKLEY HOMES, L.P.; WILSHIRE HOMES, LIMITED; AEGIS FUNDING CORPORATION; COUNTRYWIDE HOME LOANS, INCORPORATED; NAS/WILLI R. NELSON; BARCLAYS CAPITAL REAL ESTATE, INCORPORATED, Doing Business as Home EQ Servicing Corporation; EMC MORTGAGE CORPORATION; JP MORGAN CHASE BANK, N.A., as Successor in Interest to EMC Mortgage, L.L.C., Formerly Known as EMC Mortgage Corporation, Defendants-Appellees.

A ppeal from the United States District Court for the Southern District of Texas No. 4:09-CV-3049 U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 13, 2013 Ly l e W . Cay ce Clerk Case: 12-20230 Document: 00512173165 Page: 1 Date Filed: 03/13/2013No. 12-20230

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. JERRY E. SMITH, Circuit Judge: *

Mae McCrimmon took out seven mortgag e s , t h en sued numerous defendants under various state and federal laws, a lleging in essence that they failed to inform her she could not afford the loans. The dis t r i c t c ourt dismissed her complaint against several d efendants, refused to enter d efault judgment against others, and granted summary judgment in favor of t he rest. It also denied her motions to file a fifth amended complaint, to compel discovery, for s anctions, and for reconsideration. Finding no error, we affirm.

I. McCrimmon purchased three houses and refinanced a fourth in February and March 2 006, taking out s even mortgages totaling over $1 million. In 2007, she s topped m a k i n g principal and i nterest p ayments on at least two of the houses, which were foreclosed on. In September 2009, she sued numerous defendants for fraud, negligence, 1 and violations of the Truth in Lending Act (“TILA”), t h e R e a l E state Settlement Procedures Act (“RESPA”), t he Texas Deceptive Trade P ractices Act (“TDTPA”), and the Texas Debt Collection A c t ( “ T DCA”).

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4.

1 M cCrim m on als o p lead ed violations of the Texas Finance and Ad m inis trative Cod es . H er rep ly brief clarif

ies that thos e violations did not s up port f rees tand ing claim s , but only her claim of negligence p er se . 2 Case: 12-20230 Document: 00512173165 Page: 2 Date Filed: 03/13/2013No. 12-20230

The district court granted m o tions to dismiss filed b y s o me of the defendants 2 and m otions for summary judgment f iled by others. 3 T h e c ourt then denied McCrim m o n ’s motions for default judgment against MILA, Inc., and B-Sure Financial Mortgage, L.L.C., a nd her m o tions for leave to f ile a fifth amended

c o m p l a i n t, for sanctions against Wells Fargo and HomEq, and for reconsideration of the p revious rulings. M cCrimmon appeals each of these decisions. 4

I I. “We review a summary judgment d e novo , a pplying the same s tandard as the district court.” United States ex re l

. J a mison v. McKesson Corp. , 649 F.3d 322, 326 (5th Cir. 2011). T he same is true for a dismissal for failure to state a claim. LeClerc v. Webb , 4 19 F.3d 405, 413 ( 5th Cir. 2005). We review t he denial of motions for l eave to amend, to compel, for sanctions, to enter defa u l t judgment, and to reconsider, as well as the refusal to exercise equitable tolling, for abuse of discretion. 5

2 N ovaStar M ortgage, I nc. ; BAC H om e Loans Servicing, L

. P

. , erroneous ly nam ed as Countryw id e H om e Loans , Inc. ; Vericres t Financial, Inc. ; and EM C M ortgage Corp

.

3 Wells Fargo Bank , N

. A. ( “Wells Fargo”) , B arclays Cap ital R eal Es tate, I nc. , doing Bus

ines s as H om e EQ Servicing Corp

. ( “H om Eq”) , M ann & S t e v e n s , P. C. , Robert L. H orn, and Week ley H om es , L. P. ( “Week ley”)

.

4 M cCrim m on als o ap peals the d is trict court’s d enial of her m otion to com p el Week ley to res p ond to d is covery reques ts and d enial in p art of her m otion to com p el Wells Fargo.

5 See Ba l l a rd v. D ev on Energy Prod. Co. , 678 F. 3d 360, 364 ( 5th Cir. 2012) ( leave t o am end ) ; Wi w a v . Roya l D utch Petrol eum Co. , 392 F. 3d 812, 8 1 7 ( 5 t h Cir. 2004) ( com p el) ; U ni ted Sta tes v . G a rrett , 238 F. 3d 293, 297 ( 5th Cir. 2000) ( s anctions ) ; Ca m bri dge Toxi col ogy G roup , Inc. v . Exni ci os , 495 F

. 3d 169, 179 ( 5th C ir. 2007) ( d ef ault jud gm ent) ; Edw a rd H

. Bohl i n Co. v. Ba nni ng Co. , 6 F. 3d 350, 353 ( 5th Cir. 1993) ( recons id eration) ; Teem a c v . H enderson , 298 F. 3d 452, 457 ( 5th Cir. 2002) ( equitable tolling)

. 3 Case: 12-20230 Document: 00512173165 Page: 3 Date Filed: 03/13/2013No. 12-20230 III. A. The district court properly ruled in favor of each of the defendants, most by granting motions f

or s ummary judgment or to d i smiss, t he rest b y refusing to enter default judgment. All of McCrimmon’s claims, save for f raud and violation of the TDCA, were barred by statutes of limitations, and the district court did not abuse its discretion in refusing to exercise e quitable tolling. M c C rimmon failed to plead fraud with the requisite particularity a nd failed to state a claim for violation of the TDCA.

1

. Most of McCrimmon’s claims are t ime-barred. Claims a lleging i mproper disclosures under T ILA and kickbacks under RESPA are subject t o one-year limitations. 15 U .S.C. § 1640(e) (TILA); 12 U.S.C. § 2614 (RESPA). L i mitations for claims under the TDTPA and for negligence are t wo years. KPMG Peat Marwick

v. Harrison Cnty. Hous. Fin. Corp. , 988 S.W.2d 746, 749–50 (Tex. 1999). Claims for recession under T I L A m u s t be brought within three years. 15 U.S.C. § 1635(f). The loan d ocuments were executed in F ebruary and March 2 006, and McCrimmon sued more than three years l ater, i n September 2009. Therefore, her claims, other than for fraud and violation of the TDCA, are barred. 6 McCrimmon c o n t e n d s t h a t t h e d i strict court should have applied equitable tolling, which is appropriate “ only in rare and exceptional circumstances,” espe6 The s tatute of lim itations f or f raud is f our years . Exxon C

orp . v . E m era l d O i l & G a s Co. , 348 S. W. 3d 194, 202 (Tex. 2011) ( citing T E X

. C I V

. P R A C

. & R E M

. C ODE § 16. 004)

. M cCrim

m on’s claim s f

or violations of the TD CA w ould hav e a c c rued w henever the im p rop er d ebtcollection activities took p lace, p otentially long af ter the loan d ocum ents w ere executed

. 4 Case: 12-20230 Document: 00512173165 Page: 4 Date Filed: 03/13/2013No. 12-20230

cially “where the plaintiff is actively misled by the defendant about the cause of action or is p r e vented in some extraordinary way from asserting [her] rights.” Teemac , 298 F.3d at 457 (internal quotation marks o m i t t e d )

. McCrimmon’s vague a nd conclusional allegations—that t he defendants concealed kickbacks and failed to inform her she could not afford the loans—do n ot set forth r are and exceptional circumstances. Therefore, the district court did n ot abuse its discretion in refusing to exercise equitable tolling.

2

. McCrimmon failed to state a claim f or fraud or v iolation of t he T D CA. To survive a motion to dismiss, a claim m ust “state a claim to relief that is plausible

on its f ace.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). A c omplaint that offers merely “labels a nd conclusions” or “naked assertion[s] devoid of f urther factual enhancement” w ill n ot suffice. Id. (internal quotation marks omitted, alteration in o riginal). F ederal Rule of Civil P rocedure 9(b) requires t hat “in alleging fraud

or mistake, a p arty must state with p articularity the circumstances constituting fraud o r mistake.” This court “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statements c ontended to be fraudulent, identify the speaker, state when and where the s tatements were made, and explain w h y t h e s tatements were fraudulent.” Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp. , 565 F.3d 200, 207 (5th Cir. 2009) (interna l q u o t ation m arks omitted). It would be difficult to allege f raud in more general terms tha t M c C r immon employed. 7 Her p leadings contain no specific s tatements made or omitted,

7 For exam p le, s he as serted that “[ a] t all tim es m aterial, D ef end ants m is rep res ented and / or om itted m aterial facts to Plaintif f s . ” 5 Case: 12-20230 Document: 00512173165 Page: 5 Date Filed: 03/13/2013No. 12-20230

no i d entified speakers, no times or places, and no explanation of why the statements were fraudulent. A s the district court concluded, M c C r i mmon failed to meet the pleading standard for fraud. As to the TDCA, McCrimmon did not a llege any particular debt-collection activities. Her allegations were c onclusional—for example, that defendants violated the statute by “ [u]sing unfair a nd unconscionable collection methods”— and were entirely devoid of specific factual support. Therefore, she failed to state a cl a i m f

o r r e l ief for f

raud or violation of t he TDCA, the only claims not time barred. The district court did not err in ruling for defendants.

B. 1

. McCrimmon argues that the district court erred by denying h er motions to c o m p e l d iscovery from W eekley a nd Wells F argo. The magistrate judge denied the former because Weekley responded to all but three of her requests for production, and those three were overbroad and irrelevant. B e c ause those requests asked for lists of all homes s old by Weekley from 2006 on, the court did not ab u s e i ts discretion. T he magistrate judge carefully considered the latter and granted it in part. McCrimmon’s c riticisms of the district court

SS that she

was attempting to obtain relevant discovery a n d t h a t the court ought to have granted her more time for discovery sua s ponte

SS do not d emonstrate anything arbitrary or unreasonable. 8

8 Cf

. M oore v . Wi l l i s I

ndep

. Sch. D i st. , 233 F. 3d 871, 876 ( 5th Cir. 2000) ( hold ing that d is trict court d id not abus e it s d i s cretion by g ranting s um mary j ud g m ent w hile ref us ing to allow p laintif

f to cond uct ques tionable d is covery)

. 6 Case: 12-20230 Document: 00512173165 Page: 6 Date Filed: 03/13/2013No. 12-20230
2

. Two months a fter t he district court granted s ummary judgment to Wells Fargo and HomEq, McCrimmon s ought s anctions against them for alleged noncompliance w ith discovery orders; the court d e n i e d the motion as untimely. Because it provided a reasonable explanation for r e fusing to impose sanctions, 9 and because McCrimmon ’ s assertion t h at the court erred is entirely unsupported, the court did not abuse its discretion.

3

. McCrimmon contends t hat the district court e rred by denying her motion for reconsideration. “ Courts have b roa d d i s c r etion in d eciding such motions.” Johnson v. Diversicare Afton Oaks, LLC , 597 F.3d 673, 677 (5th Cir. 2010). “A motion to reconsider based on an alleged discovery of new e v i d e n c e should be granted only if ( 1) the facts discovered are of such a nature that they would probably change the outcome; (2) the facts alleged are actually newly d iscovered and could n ot have been discovered earlier by proper diligence; and ( 3) the facts are not merely cumulative or i mpeaching.” I d. (internal quotation marks and citation omitted). A lthough McCrimmon presented a number o f “additional facts that were found in discovery,” she failed to explain how any of them would have changed the o utcome o r to show t h a t t hey could not h ave been discovered through proper diligence. Therefore, the district court did not abuse i ts discretion in denying reconsideration.

9 Cf

. Cop el a nd v . Wa sserstei n, Perel l a & Co. , 278 F. 3d 472, 484–85 ( 5th Cir. 2002)

. 7 Case: 12-20230 Document: 00512173165 Page: 7 Date Filed: 03/13/2013No. 12-20230
4

. McCrimmon asserts that the district court erred by denying her leave to file a fifth amended compla i n t

. L e ave to amend should be granted “freely

. . . when justice so requires,” F E D
. R. C I V
. P. 15(a), but the “district c ourt may consider that the moving p arty failed to take advantage of earlier opportunities to amend,” Lozano v . Ocwen F ed. Bank, FSB , 489 F.3d 636, 644 (5th Cir. 2 007). In l ight of McCrimmon’s four o pportunities to amend

SS two with the benefit o f defendants’ motions to dismiss

SS t he court did not abuse i t s discretion in denying the motion to amend yet again. AFFIRMED.

8 Case: 12-20230 Document: 00512173165 Page: 8 Date Filed: 03/13/2013