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Harry v. Countrywide Home Loans, Inc.

United States Court of Appeals, First Circuit

August 23, 2018

THOMAS HARRY, JR., GRETCHEN HARRY Plaintiffs, Appellants,
v.
COUNTRYWIDE HOME LOANS, INC.; BAC HOME LOANS SERVICING, LP; BANK OF AMERICA, N.A.; THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee for the Certificate Holders of CWABS, Inc., Asset-Backed Certificates, Series 2005-17; GREEN TREE SERVICING, LLC, n/k/a Ditech Financial LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants, Appellees.

          APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge

          Tina L. Sherwood on brief for appellants.

          Phoebe 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.

          Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

          HOWARD, CHIEF JUDGE.

         In November 2005, Thomas and Gretchen Harry borrowed $245, 350 from Countrywide Home Loans, Inc., [1] 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 affirm.

         I.

         A.

         Our 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.

         We 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. 2014)).

         The 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.

         The 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 ...


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