James Rowe v. Aurora Commercial Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cv-21369 Copies to all parties and the district court/agency. [999560263].. [14-1906]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1906

JAMES J. ROWE, and; SHARON H. ROWE,
Plaintiffs – Appellants,
v.
AURORA COMMERCIAL CORP., f/k/a Aurora Loan Services, Inc.,
a Delaware Corporation; NATIONSTAR MORTGAGE, LLC, a Texas
Limited Liability Company,
Defendants – Appellees,
and
CITIBANK, N.A.; LEHAM XS
CERTIFICATES, SERIES 2005-6,

TRUST

MORTGAGE

PASS-THROUGH

Defendants.

Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.
David A. Faber, Senior
District Judge. (5:13-cv-21369)

Submitted:

January 29, 2015

Decided:

April 7, 2015

Before SHEDD, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

L. Lee Javins, II, Guy R. Bucci, Mark A. Barney, BUCCI, BAILEY &
JAVINS, LC, Charleston, West Virginia, for Appellants. John C.

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Lynch, Jason E. Manning, TROUTMAN SANDERS LLP, Virginia Beach,
Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellants

James

and

Sharon

Rowe

appeal

from

the

district court’s order dismissing their civil action contesting
the

terms

property

related

in

South

to

a

note

Carolina

of

against

obligation
the

loan

on

their

real

servicers.

The

Rowes also appeal the district court’s determination in the same
order that granting the Rowes leave to amend their complaint to
add additional claims would be futile because the claims were
barred or did not state a claim.

The Rowes argue that the

district court erred in: (1) finding that they did not state a
claim for actual fraud; (2) not sufficiently ruling on their
constructive fraud claim; (3) denying leave to amend to add a
claim

under

the

South

Carolina

Consumer

Protection

Code

for

unconscionable conduct; and (4) finding that it would be futile
to assert claims against the creditor under the Truth in Lending
Act because the statute of limitations had run and there were
insufficient or inapplicable circumstances of equitable tolling.
We affirm.
We review the grant of a motion to dismiss for failure
to state a claim de novo.

Weidman v. Exxon Mobil Corp., __ F.3d

__, 2015 WL 103954, *4 (4th Cir. Jan. 8, 2015) (No. 13-2007).
“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.’”
3

Ashcroft v. Iqbal,

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556

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U.S.

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662,

678

(2009)

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(quoting

Twombly, 550 U.S. 544, 570 (2007)).

Bell

Atlantic

Corp.

v.

“The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570);
see also Francis v. Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir.
2009) (noting that the Conley v. Gibson, 355 U.S. 41, 45-56
(1957), standard was explicitly overruled in Twombly, 550 U.S.
at 562-63)).
“On appeal from a motion to dismiss under Federal Rule
of

Civil

Procedure

12(b)(1),

we

review

the

district

court’s

factual findings with respect to jurisdiction for clear error
and the legal conclusion that flows therefrom de novo.”

In re

KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014)
(citation and internal quotations omitted), cert. denied, 2015
WL 231968 (U.S. Jan. 20, 2015) (No. 13-1241).

“On review of a

Rule 12(b)(6) dismissal, we consider a case de novo,” evaluating
“whether

the

plausible

on

complaint
its

states

face.”

a

United

claim
States

to
ex

relief

that

is

rel.

Oberg

v.

Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136
(4th

Cir.

2014)

(citations

and

internal

quotations

omitted).

“Generally, we review a district court’s denial of a motion for
leave to amend for abuse of discretion,” “[b]ut where, as here,
the district court denied such a motion on grounds of futility,
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we employ the same standard that would apply to our review of a
motion to dismiss.”

United States ex rel. Ahumada v. NISH, 756

F.3d 268, 274 (4th Cir. 2014) (citations and internal quotations
omitted).
We

have

carefully

reviewed

the

briefs

and

record

before us and, with the appropriate standards of review in mind,
conclude that the district court did not err in granting the
motion

to

dismiss

the

contested

claims

and

denying

leave

to

amend the complaint as to the claims the Rowes unsuccessfully
sought

to

add.

Rowe

v.

Aurora

Commercial

5:13-cv-21369 (S.D. W. Va. Aug. 1, 2014).

Corp.,

No.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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