Faye Larrabee v. Bank of America, NA

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cv-00712-HEH Copies to all parties and the district court/agency. [998823103].. [10-2416]

Appeal: 10-2416

Document: 24

Date Filed: 04/02/2012

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2416

FAYE D. LARRABEE,
Plaintiff – Appellant,
v.
BANK
OF
AMERICA,
CORPORATION,

NA;

FEDERAL

HOME

LOAN

MORTGAGE

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Henry E. Hudson, District
Judge. (3:09-cv-00712-HEH)

Submitted:

February 10, 2012

Decided:

April 2, 2012

Before MOTZ, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Henry W. McLaughlin, III, LAW OFFICE OF HENRY MCLAUGHLIN, P.C.,
Richmond, Virginia, for Appellant.
Bryan A. Fratkin, Seth A.
Schaeffer, MCGUIRE WOODS LLP, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-2416

Document: 24

Date Filed: 04/02/2012

Page: 2 of 5

PER CURIAM:
Faye D. Larrabee appeals the district court’s orders
granting in part Defendants’ Fed. R. Civ. P. 12(b)(6) motion to
dismiss and granting Defendants’ Fed. R. Civ. P. 56 motion for
summary judgment in her civil action seeking rescission of two
secured consumer credit transactions (one in 2006 and the other
in 2007) under the Truth in Lending Act (“TILA”), 15 U.S.C.A.
§§ 1601-1667f

(West

2009

&

Supp.

2011).

Larrabee

argues

on

appeal that the district court erred in granting Defendants’
motion to dismiss because she adequately pled TILA violations
with respect to the 2006 credit transaction and based on the use
by a lender in connection with the 2007 credit transaction of a
form notice to disclose her right to cancel that transaction.
Larrabee also argues that the court erred in granting summary
judgment

to

Defendants

because

an

application

fee

disclosure

made in connection with the 2007 credit transaction rendered
unclear the notice disclosing her right to cancel.

We affirm.

We review de novo the district court’s Rule 12(b)(6)
dismissal for failure to state a claim.
521 F.3d 298, 302 (4th Cir. 2008).
true

all

factual

allegations

Giarratano v. Johnson,

In this regard, we accept as

contained

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

in

the

complaint.

While a plaintiff’s

statement of her claim “need only give the defendant fair notice
of what the claim is and the grounds upon which it rests,” id.
2

Appeal: 10-2416

at

Document: 24

93

(internal

Date Filed: 04/02/2012

quotation

marks

Page: 3 of 5

and

alteration

omitted),

a

complaint may survive a motion to dismiss only if it “states a
plausible claim for relief” that “permit[s] the court to infer
more

than

judicial

the

mere

experience

possibility

of

and

sense.”

common

misconduct”

based

Ashcroft

on

v.

“its

Iqbal,

556 U.S. 662, ___, 129 S. Ct. 1937, 1950 (2009).
After review of the record and the parties’ briefs, we
conclude that the district court properly dismissed Larrabee’s
claim challenging the 2006 credit transaction.

Larrabee failed

to state a plausible claim for relief under the TILA because her
proposed reading of the notice disclosing the number and due
dates of payments due under that transaction is not objectively
reasonable.

Further, because the disclosure to Larrabee of her

right to cancel the 2007 credit transaction contained all of the
information required by the TILA, 15 U.S.C.A. § 1635(a)-(b), and
Regulation
complied

Z,

with

12
the

C.F.R.
TILA.

§ 226.23(a)-(b),
Watkins

v.

663 F.3d 232, 238-40 (4th Cir. 2011).
not

state

a

plausible

claim

for

(d),

the

SunTrust

disclosure

Mortg.,

Inc.,

Accordingly, Larrabee did

TILA

relief

based

on

the

lender’s use of the form notice.
Turning to Larrabee’s remaining claim, we review de
novo the district court’s adverse grant of summary judgment and
construe the facts in the light most favorable to Larrabee, the
non-moving

party.

PBM

Prods.,
3

LLC

v.

Mead

Johnson

&

Co.,

Appeal: 10-2416

Document: 24

Date Filed: 04/02/2012

639 F.3d 111, 119 (4th Cir. 2011).
granted

only

“if

the

movant

shows

Page: 4 of 5

Summary judgment may be
that

there

is

no

genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

To

withstand a motion for summary judgment, the non-moving party
must produce competent evidence to reveal the existence of a
genuine

issue

of

material

Potomac

Elec.

Power

Co.,

fact
312

for

F.3d

trial.
645,

Thompson

See

649

(4th

Cir.

v.

2002)

(“Conclusory or speculative allegations do not suffice, nor does
a

mere

scintilla

of

evidence

in

support

of

[the

non-moving

party’s] case.” (internal quotation marks omitted)).
After

review

of

the

record,

we

conclude

that

the

district court properly granted summary judgment to Defendants
on Larrabee’s remaining claim.

Larrabee did not suggest that

she was confused as to whether she could cancel the 2007 credit
transaction without cost, and she did not put forth any evidence
explaining how or suggesting that an average borrower faced with
both the notice of right to cancel and the fee notice would be
confused

as

to

whether

she

could

cancel

the

2007

credit

court’s

orders.

transaction without cost.
Accordingly,
We

dispense

with

oral

we

affirm

argument

4

the

district

because

the

facts

and

legal

Appeal: 10-2416

Document: 24

Date Filed: 04/02/2012

Page: 5 of 5

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

5