APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S.
L. Sherwood on brief for appellants.
Norton Coddington, Connie Flores Jones, and Winston &
Strawn LLP on brief for appellees Countrywide Home Loans,
Inc., Bank of America, N.A., and Bank of America Corporation.
Richard E. Briansky, Amy B. Hackett, and McCarter English,
LLP on brief for appellees Ditech Financial LLC, Mortgage
Electronic Registration Systems, Inc., and The Bank of New
York Mellon f/k/a The Bank of New York as Trustee for the
Certificate Holders of the CWABS, Inc., Asset-Backed
Certificate Series 2005-17.
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
HOWARD, CHIEF JUDGE.
November 2005, Thomas and Gretchen Harry borrowed $245, 350
from Countrywide Home Loans, Inc.,  to refinance their property
in Mashpee, Massachusetts. The Harrys defaulted on their loan
in 2009, and in 2016 they initiated this action to void their
transaction and enjoin their property's foreclosure sale.
The district court granted the defendants' motion to
dismiss the Harrys' complaint under Federal Rule of Civil
Procedure 12(b)(6), Harry v.
Countrywide Home Loans Inc., 219 F.Supp.3d 228 (D.
Mass. 2016), and denied the Harrys' request for
injunctive relief, Harry v. Countrywide
Home Loans Inc., 215 F.Supp.3d 183 (D. Mass. 2016). We
review of the dismissal is de novo. Maloy
v. Ballori-Lage, 744 F.3d 250, 252 (1st
Cir. 2014). The Harrys' eleven-count amended complaint
alleged that Countrywide falsified the Harrys' loan
application, failed to comply with federal law in the
preparation of the loan, and lacked a Massachusetts home
lender's license when their 2005 mortgage was executed.
On appeal, they reassert that a laundry list of errors
infected their application to refinance their home mortgage,
and they further argue that the district court erred in
dismissing the bulk of their claims as time-barred.
agree with the district court that the Harrys cannot escape
time bars for their RICO claim (four years to file, see
Lares Grp., II v. Tobin, 221 F.3d 41,
44 (1st Cir. 2000) (citing Agency Holding Corp.
v. Malley-Duff & Assocs., Inc., 483
U.S. 143, 156 (1987))); their Fair Debt Collection Practices
Act claim (one year to file, see 15 U.S.C. §
1692k(d)); their Real Estate Settlement Procedures Act claim
(maximum of three years to file, see 12 U.S.C.
§ 2614); their Truth in Lending Act claims (three years
to file, see 15 U.S.C. § 1635(f); In re
Sheedy, 801 F.3d 12, 19-20 (1st Cir. 2015); or their
state-law claims under the Massachusetts consumer protection
statute, Chapter 93A (four years to file, see Mass.
Gen. Laws ch. 260, § 5A) or for slander of title (three
years to file, see Mass. Gen. Laws ch. 260, §
4; Harrington v. Costello, 7 N.E.3d 449, 453 (Mass.
Harrys' only argument against finding these claims time
barred is that "the statute of limitations never runs on
void documents, period." But their basis for claiming
that the mortgage and note were void from the beginning is
simply their allegation that Countrywide "was never
licensed to lend money in Massachusetts." This, they
state in conclusory fashion, makes the note and mortgage deed
that they executed akin to forgeries and thus "void
ab initio . . . because Countrywide lacked the legal
authority to write these documents." The Harrys,
however, cite no authority for this unusual proposition, and
we have found none.
Harrys do make a somewhat more relevant pitch, urging us to
toll the applicable limitations periods under the doctrine of
fraudulent concealment. Tolling for fraudulent concealment,
however, like the Harrys' argument for equitable tolling,
requires them to make a threshold showing of due diligence.
See Protective Life Ins. Co.v.Sullivan, 682 N.E.2d 624, 635 (Mass. 1997)
(equitable tolling); Ortiz-Riverav.United States, 891 F.3d 20, 25 (1st Cir. 2018)
(equitable tolling); Gonzalezv.United
States, 284 F.3d 281, 292 (1st Cir. 2002) (fraudulent
concealment). That showing is absent here. As the district
court noted, the Harrys were represented by counsel at least
as of 2011, yet they failed to file any claim until March
2016, "more than five years after they retained counsel
and ten years after they granted the mortgage at issue."
219 F.Supp.3d at 236. In ...