Lewis v. Bank of America, N.A. et al

Filing 23

ORDER Granting With Prejudice 15 Defendant's Motion to Dismiss First Amended Complaint: IT IS ORDERED defendants motion to dismiss the first amended complaint with prejudice is GRANTED. The Clerk of the Court is directed to close this case. Signed by Judge M. James Lorenz on 4/5/2010. (mjj)

1 2 3 4 5 6 7 8 9 10 11 MARK E. LEWIS, 12 13 v. 14 BANK OF AMERICA, N.A. and its successors and/or assigns, 15 Defendants. 16 17 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Civil No. 09CV2444 L (WVG) ORDER GRANTING WITH PREJUDICE DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT [doc. #15] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendant Bank of America ("BofA") removed this case from the Superior Court for the

18 County of San Diego. Thereafter, the parties agreed for the filing of an amended complaint 19 ("FAC"). BofA now moves to dismiss the FAC. The motion has been fully briefed and is 20 considered without oral argument under Civil Local Rule 7.1(d)(1). 21 22 Discussion The Court first notes that the FAC contained six claims but plaintiff has consented to

23 dismissal of the first, second, fourth, fifth and sixth claims. (Opp. at 4.) The sole remaining 24 claim is for violation of the Truth in Lending Act ("TILA"). In his FAC, plaintiff states that he 25 is "informed and believes that the Defendant failed to provide the Plaintiff with the Federal 26 Truth in Lending Act requirement of TWO Notice of Right to Cancel forms with the transaction 27 date recession [sic] date correctly filled in." (FAC at ¶17.) Defendant contends the TILA claim 28 is barred by the applicable statute of limitations. Plaintiff relies on equitable tolling to maintain
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1 his TILA claim. 2 3 1. TILA Statute of Limitations

A lender's violation of TILA allows the borrower to seek damages or to rescind a

4 consumer loan secured by the borrower's primary dwelling. A plaintiff's cause of action for 5 damages under TILA is subject to a one-year statute of limitations, 15 U.S.C. § 1640(e), which 6 runs from the time the loan transaction is consummated. King v. State of California, 784 F.2d 7 910, 915 (1986). 8 It is undisputed that the BofA home loan at issue was consummated on August 10, 2007;

9 therefore, the deadline for a damage action on the home loan was August 10, 2008. The present 10 case was filed on September 25, 2009 in the Superior Court for the State of California, County 11 of San Diego, which makes the TILA claim for damages time barred. 12 But the Ninth Circuit has held equitable tolling of civil damages claims brought under

13 TILA may be appropriate "in certain circumstances" such as when a borrower might not have 14 had a reasonable opportunity to discover the nondisclosures within the one-year period. King v. 15 State of California, 784 F.2d 910, 915 (9th Cir. 1986); Nava v. VirtualBank, 2008 WL 2873406 16 at *3 (E.D. Cal. 2008). It is clear that a plaintiff is not automatically entitled to equitable tolling 17 whenever a creditor fails to provide required disclosures. 18 In the present case, plaintiff has not offered any facts demonstrating entitlement to

19 equitable tolling. As stated in his opposition, 20 21 22 (Opp. at 4.) 23 This allegation is insufficient for the application of equitable tolling. Plaintiff has not set quite simply put plaintiff did not become aware of the TILA violations until two factors occurred, one the plaintiff received the `forensic audit' of the loan, and two the plaintiff was rejected by the lender for his loan modification request.

24 forth any facts that would support a finding of delayed discovery or the lack of a reasonable 25 opportunity to discover the nondisclosures that form the basis of the TILA action. King, 784 26 F.2d at 915. 27 / / / 28 / / /
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Conclusion

Plaintiff's TILA claim is time barred and no factual basis has been alleged that would

3 support equitable tolling. Having had an opportunity to amend the complaint to make factual 4 allegations concerning equitable tolling and having not doing so, IT IS ORDERED defendant's 5 motion to dismiss the first amended complaint with prejudice is GRANTED. The Clerk of the 6 Court is directed to close this case. 7 IT IS SO ORDERED.

8 DATED: April 5, 2010 9 10 11 COPY TO: 12 HON. WILLIAM V. GALLO UNITED STATES MAGISTRATE JUDGE 13 14 ALL PARTIES/COUNSEL 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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M. James Lorenz United States District Court Judge