Shahin v. PNC Bank et al

Filing 16

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 10/8/14. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MAZEN SHAHIN and NINA SHAHIN,
Plaintiffs,

v.

Civ. No. 13-1404-LPS

PNC BANK, N.A, et aI.,
Defendants.

Mazen Shahin and Nina Shahin, Dover, DE.
Pro se Plaintiffs.

Beth Moscow-Schnoll, Esquire, BALLARD SPAHR, LLP, Wilmington, DE.
Attorney for Defendants.

MEMORANDUM OPINION

October 8,2014
Wilmington, Delaware

I.

INTRODUCTION
Plaintiffs Mazer Shahin and Nina Shahin (collectively, "Plaintiffs") filed this action on

August 12,2013, against Defendants PNC Bank, N.A.,' Andrew Rogan, and Leghsa Copetillo
(collectively, "Defendants"), alleging violations ofthe Fair Housing Act, Real Estate Settlement
Procedures Act, Truth in Lending Act, and Equal Credit Opportunity Act. (D.I. 1) Presently
before the Court are Defendants' Motion to Dismiss for Failure to State a Claim and Plaintiffs'
Motion for Sanctions. (D.I. 9, 13) For the reasons that follow, the Court will grant in part the
Motion to Dismiss and will deny the Motion for Sanctions.

II.

BACKGROUND
On July 23,2012, Plaintiffs applied for a home equity loan at a PNC Bank branch located

in Dover, Delaware. The following day, Andrew Rogan, the branch's assistant manager,
requested tax returns, pay stubs, and proof of homeowner's insurance, which Plaintiffs provided.
Plaintiffs did not receive a Good Faith Estimate within three days from PNC Bank. On August 8,
2012, Plaintiffs submitted a complaint to the Office of the Comptroller of Currency, which was
transferred to the Consumer Financial Protection Bureau and eventually closed. On August 10,
2012, after exchanging correspondence with the branch, Nina Shahin came into the Dover branch
and requested a letter relating to closing costs; Rogan did not provide it. Thereafter, Rogan and
the branch manager, Leghsa Copetillo, threatened to call the police and eventually did, resulting

'Both a local branch in Dover, Delaware, and the corporate headquarters in Pittsburgh,
Pennsylvania were named as Defendants.
1

in Shahin being arrested and taken to prison. On August 13,2012, PNC Bank demanded that all
of Plaintiffs' accounts be closed.
Plaintiffs' complaint alleges violations of four laws: Real Estate Settlement Procedures
Act ("RESPA"), Truth in Lending Act ("TILA"), Fair Housing Act ("FHA"), and Equal Credit
Opportunity Act ("ECOA"). (D.L 1) Defendants move for dismissal for failure to state a claim
on which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.L 9,
10) In response to this motion, Plaintiffs filed a motion for sanctions pursuant to Federal Rule of
Civil Procedure 11 as well as Rule 3.1 of the Delaware Lawyers' Rules of Professional Conduct.
(D.!. 13)

III.

MOTION TO DISMISS
A.

Legal Standards

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
the Court to accept as true all material factual allegations ofthe complaint. See Spruill v. Gillis,
372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat
Factory Sec. Litig., 114 F 3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted).
Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded
allegations in the complaint as true, and viewing them in the light most favorable to plaintiff,
plaintifIis not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000)
(internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintifImust allege facts that 'raise a
right to relief above the speculative level on the assumption that the allegations in the complaint

2

are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007». While heightened fact pleading
is not required, "enough facts to state a claim to reliefthat is plausible on its face" must be
alleged. Twombly, 550 U.S. at 570. At bottom, "[t]he complaint must state enough facts to raise
a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a
plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir.
2008) (internal quotation marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported
conclusions and unwarranted inferences," Schuylkill Energy Resources, Inc. v. Pennsylvania

Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently
false," Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).

B.

Real Estate Settlement Procedures Act

Plaintiffs allege a violation ofRESPA based on Defendants' failure to provide a Good
Faith Estimate, as required by 12 U.S.C. § 2604. Defendants raise three arguments to support
their motion to dismiss: (1) Section 2604 does not provide a private right of action; 2) the claim
is time-barred; and (3) Plaintiffs did not sufficiently plead damages.
RESP A does not provide a private right of action for violations of Section 2604. See

Collins v. FMHA-USDA, 105 F.3d 1366, 1368 (10th Cir. 1997) (per curiam) ("[T]here is no
private civil action for a violation of 12 U .S.c. § 2604( c), or any regulations relating to it."); see

also Brophy v. Chase Manhattan Mortg. Co., 947 F. Supp. 879, 881-83 (RD. Pa. 1996)

3

(examining legislative history and related statutes). Accordingly, Plaintiffs' claim under RESP A
will be dismissed.
C.

Truth in Lending Act

Plaintiffs allege a violation of TILA, but do not specifY what alleged conduct actually
violates the law or Regulation Z. Defendants move to dismiss on two grounds: (l) the complaint
provided no legal or factual basis for a claim under TILA; and (2) the statute of limitations bars
Plaintiffs' claim.
TILA contains a one-year statute of limitations. See 15 U.S.C. § 1640( e). Plaintiffs'
TILA claim appears to be based on an alleged violation of the statute's disclosure requirements,
and for such a claim the statute of limitations ordinarily begins to run on the date of the violation,
which is the date of consummation of the lending agreement. See Bartholomew v. Northampton

Nat. Bank ofEaston, 584 F .2d 1288, 1294 (3d Cir. 1978). In this case, there was no
consummation of an agreement, because PNC Bank did not approve Plaintiffs' loan application.
The alleged conduct in the complaint relating to the loan application occurred between July 24,
2012, and August 10,2012. 2 Plaintiffs did not file their complaint until August 12,2013, but
Plaintiffs have not alleged any conduct which would constitute a potential violation of TILA
within one year of that date, i.e., on or before August 12,2012. Accordingly, Plaintiffs' TILA
claim is barred by the statute oflimitations and will be dismissed.

2It was on August 13,2012 that PNC demanded that all of Plaintiffs' accounts be closed,
but this conduct was unrelated to any disclosure issue and, more importantly, is not a basis for
Plaintiffs' TILA claim.
4

D.

Fair Housing Act

Plaintiffs' claim under the FHA is premised on the allegation that "[w]hen the PNC
manager and assistant manager called police they violated provisions of Title VII (Fair Housing
Act) treating the Plaintiff, a Ukranian born woman as a stupid and irresponsible who can be
fooled, threatened, and deprived of her civil and constitutional rights." (D.l. I at 4) Plaintiffs'
claim relies on 42 U.S.C. § 3605, which makes it unlawful to discriminate in a "residential real
estate-related transaction," and 42 U.S.C. § 3617, which makes it unlawful to "coerce, intimidate,
threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having
exercised or enjoyed, or on account of having aided or encouraged any other person in the
exercise or enjoyment of," rights under section 3605.
In order to state a claim for a violation of section 3605 of the Fair Housing Act, Plaintiffs

must establish that the actions complained of were either (i) based on intentionally discriminatory
treatment or (ii) that there was discriminatory effect alone, without proof of discriminatory intent.
See Doe v. City ofButler, 892 F.2d 315, 323 (3d eir. 1989). Section 3617 requires intentional
discrimination. See United States v. Sea Winds o.fMarco, Inc., 893 F. Supp. 1051,1055 (M.D.
Fla 1995) (requiring Plaintiffs to allege that "the Defendants' conduct was at least in part
intentional discrimination" as one of four elements to state claim under section 3617).
Plaintiffs have alleged that Defendants were aware of their national origin, Egyptian and
Ukranian, but have not adequately alleged any discriminatory intent or discriminatory effect.
They have not alleged, for instance, that Defendants decided to call the police because of
Plaintiffs' national origin. They have not alleged that Defendants provide more favorable
treatment to individuals of different national origins. To the extent Plaintiffs generally allege in a

5

conclusory fashion discriminatory intent, their allegation is insufficient. See HDC, LLC v. City
ofAnn Arbor, 675 F.3d 608, 614 (6th Cir. 2012) ("[Plaintiffs'] vague and conclusory allegations
that [Defendant] acted with 'a discriminatory intent, purpose, and motivation' ... do not
transform the [Plaintiffs'] otherwise insufficient factual pleadings into allegations that plausibly
support an inference of discriminatory animus."). At bottom, Plaintiffs allege nothing more than
that Defendants were aware of their national origin, which fails to state a claim.
Accordingly, Plaintiffs have failed to state a claim under either Section 3605 or Section
3617. Their FHA claim will be dismissed.

E.

Equal Credit Opportunity Act

Plaintiffs' ECOA claim rests on the denial oftheir home equity loan by Defendants. "The
ECOA makes it unlawful for a creditor to discriminate against an applicant 'with respect to any
aspect of a credit transaction. '" Visconti v. Veneman, 204 Fed. Appx. 150, 154 (Oct. 30, 2006)
(quoting 15 U.S.c. § 1691 (a»; see also Chiang v. Veneman, 385 F.3d 256, 258 (3d Cir. 2004),
abrogated on other grounds by In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 318 n.18
(3d Cir. 2012). To state a claim on which relief may be granted, Plaintiffs must allege, among
other things, that they are members of a protected class (which they have done) and that others
not in their protected class were treated more favorably (which they have not done). Visconti,
204 Fed. App. at 154. As with their FHA claim, Plaintiffs have not alleged that any adverse
credit decision was made because of their national origin, nor that Defendants treat credit
applicants of different national origins more favorably. Accordingly, Plaintiffs' ECOA claim
will be dismissed.

6

V.

MOTION FOR SANCTIONS
Plaintiffs moves for sanctions against defense counsel under F.R.C.P. 11 and Rule 3.1 of

the Delaware Lawyers' Rules of Professional Conduct. (D.L 10) Plaintiffs disapprove of
Defendants' filing of the motion to dismiss and believe sanctions are an appropriate remedy_
Defendants, of course, oppose the motion. (D.L 15)
The Court has reviewed Plaintiffs motion and finds it frivolous and untimely. Defense
counsel took no action to warrant the imposition of sanctions under Rule 11, and the Delaware
Lawyers' Rules similarly provide no basis for imposition of liability. Further, Plaintiff did not
wait 21 days after service of the motion on Defendants' counsel before filing the motion. See
D.L 13 (motion for sanctions filed on Oct. 24, 2013) Accordingly, the Court will deny Plaintiffs'
motion.

VI.

CONCLUSION
For the reasons stated above, Defendants' motion to dismiss will be granted in part and

denied in part. Plaintiffs' motion for sanctions will be denied. An appropriate Order follows.

7