Mary Edmondson v. Eagle National Bank , 922 F.3d 535 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1216
MARY E. EDMONSON,
Plaintiff - Appellant,
v.
EAGLE NATIONAL BANK; EAGLE NATIONWIDE MORTGAGE
COMPANY; EAGLE NATIONAL BANCORP, INCORPORATED; ESSA
BANCORP, INCORPORATED; ESSA BANK & TRUST,
Defendants - Appellees.
No. 18-1229
RENITA JAMES,
Plaintiff - Appellant,
v.
ACRE MORTGAGE & FINANCIAL, INC.,
Defendant - Appellee.
No. 18-1230
D’ALAN E. BAUGH; PENNY FRAZIER,
Plaintiffs - Appellants,
v.
THE FEDERAL SAVINGS BANK,
Defendant - Appellee.
No. 18-1260
TRACIE PARKER DOBBINS; GLADYS PARKER,
Plaintiffs - Appellants,
v.
BANK OF AMERICA, N.A.,
Defendant - Appellee.
No. 18-1262
JILL BEZEK; MICHELLE HARRIS
Plaintiffs - Appellants,
v.
FIRST MARINER BANK
Defendant - Appellee.
2
Appeals from the United States District Court for the District of Maryland at Baltimore.
Richard D. Bennett, District Judge. (1:16-cv-03938-RDB; 1:17-cv-00540-RDB; 1:17-cv-
01734-RDB; 1:17-cv-01735-RDB; 1:17-cv-02902-RDB)
Argued: December 11, 2018 Decided: April 26, 2019
Before KEENAN, WYNN, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge Keenan and Judge Harris joined.
ARGUED: William James Murphy, ZUCKERMAN SPAEDER LLP, Baltimore,
Maryland, for Appellants. Ryan Thomas Becker, FOX ROTHSCHILD LLP,
Philadelphia, Pennsylvania, for Appellees. Brian David Schmalzbach,
MCGUIREWOODS LLP, Richmond, Virginia, for Appellee Bank of America National
Association. ON BRIEF: Cyril V. Smith, Adam B. Abelson, ZUCKERMAN
SPAEDER LLP, Baltimore, Maryland; Michael Paul Smith, SMITH, GILDEA &
SCHMIDT, LLC, Towson, Maryland; Timothy F. Maloney, JOSEPH, GREENWALD &
LAAKE, P.A., Greenbelt, Maryland, for Appellants. George J. Krueger, FOX
ROTHSCHILD LLP, Philadelphia, Pennsylvania; Brian Moffet, MILES &
STOCKBRIDGE P.C., Baltimore, Maryland, for Appellees Eagle Nation Bank, Eagle
Nationwide Mortgage Company, Eagle National Bancorp, Incorporated, Essa Bancorp,
Incorporated, and Essa Bank & Trust. Bradley R. Kutrow, MCGUIRE WOODS LLP,
Charlotte, North Carolina, for Appellee Bank of America National Association. Ari
Karen, OFFIT KURMAN, PA, Baltimore, Maryland, for Appellees Acre Mortgage &
Financial, Inc, and The Federal Savings Bank. Michael E. Blumenfeld, NELSON
MULLINS RILEY & SCARBOROUGH LLP, Baltimore, Maryland, for Appellee First
Mariner Bank.
3
WYNN, Circuit Judge:
Each of the five Plaintiffs in this matter brought a putative class action alleging
that between 2009 and 2014 certain lenders participated in “kickback schemes”
prohibited by the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et
seq. But the district court dismissed their claims because the first of the five class actions
at issue in this appeal was not filed until June 23, 2016, well after the expiration of
RESPA’s one-year statute of limitations. We, however, hold that, under the allegations
set forth in their complaints, Plaintiffs are entitled to relief from the limitations period
under the fraudulent concealment tolling doctrine. Accordingly, we reverse the district
court’s dismissal of Plaintiffs’ actions.
I.
Because the district court dismissed Plaintiffs’ actions under Federal Rule of Civil
Procedure 12(b)(6), we take the non-conclusory factual allegations in Plaintiffs’
complaints as true and draw all reasonable inferences therefrom in Plaintiffs’ favor. In re
GNC Corp., 789 F.3d 505, 512 (4th Cir. 2015).
Between 2009 and 2014, Defendants—several banks and mortgage companies
(each, a “Lender,” and collectively, the “Lenders”) 1—originated or serviced residential
mortgages obtained by Plaintiffs. Mortgage brokers and loan officers employed by the
Lenders referred Plaintiffs to Genuine Title, LLC (“Genuine Title”) to procure title
1
The Lenders are Eagle National Bank and several of its predecessors and
affiliates; Bank of America, N.A.; Acre Mortgage & Financial, Inc.; The Federal Savings
Bank; and First Mariner Bank.
4
insurance and obtain escrow and settlement services. Plaintiffs allege that Genuine Title
provided the Lenders with several forms of “unearned fees and kickbacks” to induce
those referrals, J.A. 8, in violation of RESPA, which forbids, among other things, any
person from “giv[ing or] accept[ing] any fee, kickback, or thing of value pursuant to any
agreement or understanding . . . [as] part of a real estate settlement service involving a
federally related mortgage loan,” 12 U.S.C. § 2607(a).
In the scheme’s most basic form, Genuine Title transferred more than $4,000,000
to an entity named Brandon Glickstein, Inc. (“BGI”), which purportedly provided
“advertising and marketing” services. J.A. 13–14. Brandon Glickstein, who founded
BGI, had previously served as “Genuine Title’s lead marketing and account
representative.” J.A. 13. Using the funds it received from Genuine Title, BGI made
millions of dollars in direct cash payments to the Lenders’ brokers and loan officers who
made referrals to Genuine Title. Brokers and loan officers who referred more customers
to Genuine Title received larger payments from BGI.
Plaintiffs further allege that Glickstein founded a second company, Competitive
Advantage Media Group, LLC (“Competitive Advantage”), that made in-kind payments
to the Lenders’ brokers and loan officers. In particular, Competitive Advantage provided
“free or discounted leads, postage, and/or marketing materials and services and/or credits
for mortgage brokers and lenders” associated with the Lenders. J.A. 14. Genuine Title
allegedly paid for some or all of the promotional materials Competitive Advantage
provided to the Lenders’ brokers and loan officers.
5
According to the complaint, the amount that Genuine Title paid Competitive
Advantage for the promotional materials Competitive Advantage provided to the
Lenders’ brokers or loan officers varied with the number of referrals the broker or loan
officer made to Genuine Title. “For example, if a [r]eferring [b]roker who used
[Competitive Advantage] for his or her marketing materials referred five (5) mortgages
that closed with Genuine Title in one month, and the agreement with Genuine Title was
that each closing was valued at $200, Genuine Title would pay [Competitive Advantage]
$1,000 the next month to be applied to the [r]eferring [b]roker’s marketing materials
produced by [Competitive Advantage].” J.A. 15.
Furthermore, Plaintiffs allege that Genuine Title entered into agreements pursuant
to which a broker or loan officer associated with a Lender that refused to lend to a
prospective borrower because the borrower failed to meet the Lender’s underwriting
standards would refer the borrower to another Lender that frequently worked with
Genuine Title. That second Lender’s broker or loan officer would refer the borrower to
Genuine Title for title services. Under these agreements, Genuine Title would provide a
cash or in-kind kickback to (1) the broker or loan officer of the Lender that referred the
borrower to the second Lender and (2) the second Lender’s broker or loan officer, who
ultimately originated or serviced the borrower’s mortgage and who referred the borrower
to Genuine Title. Again, the payments to the brokers or loan officers employed by the
two Lenders varied with the volume of referrals. Neither Genuine Title nor the Lenders
disclosed the alleged kickbacks to Plaintiffs.
6
Although the complaint alleges violations between 2009 and 2014, the first of the
five class actions at issue in this appeal was not filed until June 23, 2016, well after the
expiration of RESPA’s one-year statute of limitations. Plaintiffs’ complaints assert that
Plaintiffs are entitled to relief from the limitations period, however, because the Lenders
fraudulently concealed the alleged kickback scheme.
To that end, Plaintiffs allege that BGI and Competitive Advantage were “sham”
entities and that “the use of [BGI and Competitive Advantage] was intended to conceal,
and did conceal, the Kickback Scheme from borrowers, including Plaintiff, Class
Members, and regulators.” J.A. 13. In support of the allegation that BGI and
Competitive Advantage were “sham[s],” the complaints allege, for example, that “[t]he
Resident Agent for [Competitive Advantage] at the time of organization was Jonathan S.
Bach, Esq., the in-house attorney for Genuine Title” and that, at that time, “the address
for [Competitive Advantage] was the same physical address [as] Genuine Title.” J.A. 14.
The complaints further allege that some of the brokers or loan officers employed
by the Lenders “created shell companies to receive the [cash] payments” from BGI,
whereas other brokers and loan officers used previously existing entities for the sole
purpose of receiving the payments. J.A. 16. According to the complaints, the
“[p]ayments were made and received in this way to conceal, and did conceal, the
Kickback Scheme from borrowers, including Plaintiff and other Class Members, and
regulators.” Id. Once investigators began examining the payments from BGI to the
Lenders’ brokers and loan officers, “Genuine Title drafted sham Title Services
Agreements for [r]eferring [b]rokers with the intent to disguise and conceal [cash]
7
payments as legitimate fees for alleged title services provided by [r]eferring [b]rokers,
and Genuine Title back-dated said agreements.” J.A. 16–17. In support of the allegation
that the Title Service Agreements were “sham[s],” the complaints allege that the cash
payments from BGI to the Lenders’ referring brokers and loan officers “were not made in
accordance with the fee schedule in the Title Services Agreements and the [r]eferring
[b]rokers performed no services for Genuine Title.” J.A. 17.
The complaints further alleged that the Lenders concealed the kickbacks by not
reporting the payments from BGI on HUD-1 Settlement Statements 2 and other settlement
documents the Lenders provided to Plaintiffs, notwithstanding that federal regulations
require that HUD-1 Settlement Statements “include any amounts received for origination
services, including administrative and processing services, performed by or on behalf of
the loan originator,” 12 C.F.R. § 1024, App. A, and provide a good faith estimate of “all
charges that all loan originators involved in [the] transaction will receive,” id. § 1024,
App. C.
Potentially complicating Plaintiffs’ request for relief from RESPA’s limitation
period based on fraudulent concealment, however, is that Genuine Title, its officers, and
brokers and loan officers employed by lenders not named as defendants in this case
2
A HUD-1 Settlement Statement is a standard form provided to borrowers listing
the “actual charges and adjustments paid by the borrower and seller,” and “given to the
parties in connection with the settlement.” 12 C.F.R. § 124, App. A. For most mortgage
transactions occurring after October 3, 2015, borrowers now receive what is called a
“Closing Disclosure” instead. What Is a HUD-1 Settlement Statement?, Consumer
Financial Protection Bureau, https://www.consumerfinance.gov/ask-cfpb/what-is-a-hud-
1-settlement statement-en-178/ (last visited on March 27, 2019).
8
previously have faced legal actions premised on similar conduct. In 2013, for example,
Edward and Vickie Fangman filed a complaint alleging that Genuine Title provided
kickbacks to mortgage brokers and loan officers affiliated with several mortgage lenders
and brokers in exchange for referrals. See Fangman v. Genuine Title, No. RDB-14-0081
(D. Md. 2014). Counsel for the Fangman plaintiffs—the law firms Smith, Gildea &
Schmidt, LLC, and Joseph, Greenwald & Lake, P.A.—represented some of the Plaintiffs
in the present action.
Genuine Title filed for bankruptcy in 2014. Thereafter, Genuine Title’s
bankruptcy receiver provided counsel for the Fangman plaintiffs with access to Genuine
Title’s documents, records, and computer servers. From these records, Fangman counsel
identified and located prospective class members as well as several additional lenders that
allegedly received kickbacks from Genuine Title. Counsel then contacted these members
and filed two Amended Complaints, naming several lenders as additional defendants,
including, for a short time, two of the defendants in the instant case: Eagle National Bank
and Bank of America, N.A.
Like Plaintiffs, the Fangman plaintiffs sought relief from RESPA’s one-year
limitations period under the doctrine of fraudulent concealment. The district court in
Fangman held the plaintiffs’ allegations of fraudulent concealment—which track those
asserted by Plaintiffs in the instant case—were sufficient to satisfy Federal Rules of Civil
Procedure 9(b) and 12(b)(6). See J. v. Genuine Title, LLC, No. RDB-14-0081, 2015 WL
8315704, at *7 (D. Md. Dec. 9, 2015).
9
In reaching that conclusion, the court first held that the Fangman defendants
engaged in affirmative acts of concealment, including by concealing the business
relationship between Genuine Title and the defendant lenders, failing to disclose the
referral payments on the borrowers’ HUD-1 Settlement Statements, and entering into
sham Title Services Agreements. The court further held the Fangman Plaintiffs
adequately alleged that they did not and “could not have reasonably known of their cause
of action until contacted by [their] attorneys.” Id. “Rather than sleeping on their rights,
[the Fangman] Plaintiffs’ counsel has undergone a large-scale review of Defendant
Genuine Title’s computer system. It is only through this review, aided by early discovery
and a proprietary software system, that potential plaintiffs have been identified,” the court
held. 3 Id. The district court subsequently ruled that the evidence the Fangman plaintiffs
adduced in discovery was sufficient to satisfy their burden to prove their entitlement to
tolling based on fraudulent concealment. See Fangman v. Genuine Title, LLC, No. RDB-
14-0081, 2016 WL 6600509, at *4–7 (D. Md. Nov. 8, 2016).
Meanwhile, on January 22, 2015, the Consumer Financial Protection Bureau and
the Maryland Attorney General initiated enforcement proceedings against Wells Fargo
Bank, N.A. (“Wells Fargo”) and JPMorgan Chase Bank, N.A. (“J.P. Morgan”), alleging
those two financial institutions engaged in a similar kickback scheme with Genuine Title.
Wells Fargo and J.P. Morgan entered into a settlement agreement with the enforcement
3
The Fangman plaintiffs voluntarily withdrew their claims against Bank of
America before the district court considered the motion to dismiss. See id. at *1 n.6.
10
agencies, agreeing to pay approximately $35 million dollars. That agreement received
press coverage in, among other media outlets, The Wall Street Journal, The Baltimore
Sun, and The Washington Post.
Additionally, on April 29, 2015, the Consumer Financial Protection Bureau and
the Maryland Attorney General brought a separate enforcement action against Genuine
Title, alleging that Genuine Title, its principal, and affiliates engaged in cash payments
and other kickbacks in exchange for referrals. Although the case settled, and the
settlement orders contemplated additional private litigation by consumers, neither the
Consumer Financial Protection Bureau nor the Maryland Attorney General required any
of the financial institutions named in the enforcement actions to issue any formal notices
to the public.
During the pendency of the Fangman litigation and the federal and state
enforcement proceedings, Plaintiffs’ counsel further analyzed the materials provided by
Genuine Title’s bankruptcy receiver and identified additional borrowers potentially
impacted by Genuine Title’s alleged kickbacks to lenders and brokers. Based on that
analysis, Plaintiffs filed the five putative class actions at issue in this appeal. Each
putative class action names as defendant a separate financial institution or corporate
family of financial institutions, which employed brokers and loan officers that allegedly
received kickbacks from Genuine Title.
Like the defendants in Fangman, the Lenders moved to dismiss on grounds that
Plaintiffs failed to file their actions within RESPA’s one-year limitations period and were
not entitled to rely on the doctrine of fraudulent concealment to obtain relief from the
11
limitations period. Unlike in Fangman, however, the district court refused to toll the
limitations period based on fraudulent concealment and, therefore, dismissed Plaintiffs’
actions. See Edmondson v. Eagle Nat’l Bank, No. RDB-16-3938, 2018 WL 582514, at
*8-9 (D. Md. Jan. 29, 2018).
In Fangman, the district court focused on whether the defendants engaged in
affirmative acts of concealment and whether the plaintiffs failed to discover the facts
within the statutory period despite the exercise of due diligence, Fangman, 2015
8315704, at *7—the traditional factors this Court has recognized bear on fraudulent
concealment. See Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d
119, 122 (4th Cir. 1995). However, this time, the district court’s opinion dismissed
Plaintiffs’ action on grounds that they failed to sufficiently allege “extraordinary
circumstances” prevented the timely filing of their claims. Edmondson, 2018 WL
582514, at *6–9 (quoting Menominee Indian Tribe of Wisconsin v. United States, 136 S.
Ct. 750, 755 (2016)).
In dismissing Plaintiffs actions, the district court held no extraordinary
circumstances were present because (1) Plaintiffs’ counsel had access to the data used to
identify the Lenders’ alleged wrongdoing “by June 2015” and (2) the named Plaintiffs
should have discovered the existence of their claims “in May 2015 at the latest” based on
information publicly disclosed in the Fangman complaint and the media coverage of
Genuine Title’s wrongdoing. Id. at *7–8. The district court further concluded that no
“extraordinary circumstances” existed—that this case did not “present one of those rare
instances where . . . it would be unconscionable to enforce the limitation period . . . and
12
gross injustice would result”—because Plaintiffs’ counsel “has already secured
significant awards for their efforts to hold Genuine Title and other financial institutions
accountable for violating RESPA.” Id. at *8 (internal quotation marks and alterations
omitted).
Plaintiffs timely appealed.
II.
We review de novo a district court’s decision to grant a motion to dismiss pursuant
to Rule 12(b)(6), including claims for fraudulent concealment. See Al-Abood ex rel. Al-
Abood v. El-Shamari, 217 F.3d 225, 233 (4th Cir. 2000); Wood v. Com., 155 F.3d 564
(4th Cir. 1998) (unpublished) (reviewing de novo whether the complaint sufficiently
alleged fraudulent concealment).
The sole issue on appeal is whether the district court properly dismissed the five
complaints on grounds that Plaintiffs failed to sufficiently allege their entitlement to relief
from RESPA’s one-year limitations period based on fraudulent concealment. To decide
this issue, we will consider (A) whether RESPA’s one-year statute of limitations for
claims under Section 2607, 12 U.S.C. § 2614, is subject to tolling based on fraudulent
concealment; (B) if so, whether the district court applied the proper test in holding that
Plaintiffs failed to adequately allege their entitlement to tolling based on fraudulent
concealment; and (C) whether Plaintiffs’ allegations bearing on fraudulent concealment
are sufficient to survive a motion to dismiss under Rule 12(b)(6).
13
A.
We first look at whether RESPA’s one-year statute of limitations for claims under
Section 2607, 12 U.S.C. § 2614, is subject to tolling based on fraudulent concealment.
The Supreme Court has held that “time bars in suits between private parties are
presumptively subject to” tolling on equitable grounds. United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1630 (2015) (emphasis in original). To that end, the Supreme Court has
held that “the fraudulent concealment tolling doctrine is to be ‘read into every federal
statute of limitation.’” Marlinton, 71 F.3d at 122 (quoting Holmberg v. Armbrecht, 327
U.S. 392, 397 (1946)). We believe Holmberg ends the inquiry and makes RESPA’s one-
year statute of limitations, like “every federal statute of limitation,” 327 U.S. at 397,
subject to tolling based on fraudulent concealment. 4 Even so, we follow our sister
circuits and consider whether the time limitations in Section 2614 operate as a
jurisdictional bar rendering tolling on equitable grounds categorically unavailable. We
conclude it does not.
4
In an unpublished per curiam opinion, a panel of this Court concluded that
RESPA’s one-year statute of limitations was jurisdictional, and therefore not subject to
tolling based on fraudulent concealment. See Zaremski v. Keystone Title Assocs., Inc.,
884 F.2d 1391 (4th Cir. 1989) (unpublished). Unpublished decisions, of course, do not
constitute binding precedent in this Circuit. Hogan v. Carter, 85 F.3d 1113, 1118 (4th
Cir. 1996). And we are not persuaded to follow Zaremski, which was “sparely reasoned,”
Minter v. Wells Fargo Bank, N.A., 675 F. Supp. 2d 591, 594 (D. Md. 2009), and which
predates the Supreme Court’s recent jurisprudence “press[ing] a stricter distinction
between truly jurisdictional rules . . . and nonjurisdictional ‘claim-processing rules’” and
admonishing lower courts to “not lightly attach those ‘drastic’ consequences” of treating
a timely filing provision as jurisdictional, Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
14
When Congress makes a limitations period a jurisdictional prerequisite, then
courts may not toll the limitations period on any equitable grounds. See Harris v.
Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); see also, e.g., Ramadan v. Chase
Manhattan Corp., 156 F.3d 499, 500 (3d Cir. 1998) (“A limitation period is not subject to
equitable tolling if it is jurisdictional in nature.”). For guidance, “the Supreme Court has
established a clear statement rule for determining whether procedural rules, including
time bars, are jurisdictional.” Stewart v. Iancu, 912 F.3d 693, 700 (4th Cir. 2019); see
also Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) (holding that “absent
such a clear statement . . . courts should treat [a statutory timeliness requirement] as
nonjurisdictional in character” (internal quotation marks omitted)). “Only if the statutory
text ‘plainly show[s] that Congress imbued a procedural bar with jurisdictional
consequences’ should a court treat a rule as jurisdictional.” Stewart, 912 F.3d at 700
(quoting Kwai Fun Wong, 135 S. Ct. at 1632 (emphasis added)). Put otherwise, Congress
must “do something special, beyond setting an exception-free deadline, to tag a statute of
limitations as jurisdictional and so prohibit a court from tolling it.” Kwai Fun Wong, 135
S. Ct. at 1632.
RESPA’s limitation provision states, in pertinent part:
Any action pursuant to the provisions of [this title] may be brought in the
United States district court or in any other court of competent jurisdiction,
for the district in which the property involved is located, or where the
violation is alleged to have occurred, within . . . 1 year in the case of a
violation of section 2607 . . . from the date of the occurrence of the
violation[.]
15
12 U.S.C. § 2614. Thus, the plain language of Section 2614 does not state—clearly or
otherwise—that the one-year limitations period is a jurisdictional prerequisite. And, as
the Ninth Circuit emphasized in holding Section 2614’s statute of limitations provision
non-jurisdictional, the provision uses the “non-mandatory” term “may” and is therefore
“far more permissive than several limitations provisions that have been held amenable to
equitable tolling.” Merritt v. Countrywide Financial Corp., 759 F.3d 1023, 1037 (9th
Cir. 2014) (citing Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 438–39
(2011)).
Decades prior to the Supreme Court’s recent effort “to ‘ward off profligate use of’
the label ‘jurisdictional,’” Nauflett v. C.I.R., 892 F.3d 649, 652 (4th Cir. 2018) (quoting
Sebelius, 568 U.S. at 153), the D.C. Circuit held that Section 2614’s limitations period
was jurisdictional, principally because Congress titled the section: “Jurisdiction of
Courts; limitations,” see Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1041 (D.C.
Cir. 1986). We do not believe the reference to “Jurisdiction” in the title of Section 2614
bears the interpretive weight placed on it in Hardin, nor does it constitute the “clear
statement” necessary to render Section 2614’s limitations provision jurisdictional. To
begin, it is significant that the plain language of the Section 2614’s title references both
“Jurisdiction” and “limitations,” indicating that Congress viewed the limitations aspect of
Section 2614 as distinct from the provision’s “jurisdiction[al]” aspect. See Reed Elsevier,
Inc. v. Muchnick, 559 U.S. 154, 163–64 (2010) (rejecting the argument that the “presence
of the word ‘jurisdiction’” in a statute renders the entire statute jurisdictional).
16
Additionally, we note that “‘[j]urisdiction . . . is a word of many, too many,
meanings,’” only some of which refer to a “court’s adjudicatory authority”—the crucial
question in determining whether a statute of limitations is subject to tolling on equitable
grounds. Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004) (quoting Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 90 (1998)). Section 2614’s reference to “jurisdiction” “is
not a ‘jurisdiction-granting provision’”—it does not create a court’s adjudicatory
authority—but rather deals with “venue” and therefore does not preclude tolling on
equitable grounds. Merritt, 759 F.3d at 1038 (quoting Reed Elsevier, 559 U.S. at 166)
(emphasis retained).
We further note that “the purposes and policies underlying the limitation
provision, the Act itself, and the remedial scheme developed for the enforcement of the
rights given by the Act,” see Burnett v. New York Cent. R. Co., 380 U.S. 424, 427 (1965),
also support treating the limitations period in Section 2614 as non-jurisdictional.
Congress enacted RESPA to eliminate “kickbacks or referral fees that tend to increase
unnecessarily the costs of certain settlement services.” 12 U.S.C. § 2601(b)(2). In so
doing, Congress sought to provide consumers “with greater and more timely
information on the nature and costs of the settlement process” so that they may be
“protected from unnecessarily high settlement charges caused by certain abusive
practices that have developed in some areas of the country.” Id. § 2601(a). As the
Eleventh Circuit observed in construing a limitations provision in the Truth In Lending
Act, which also serves to protect consumers from abusive practices by entities that
originate and service mortgages, treating the limitations provision as jurisdictional
17
“would lead to the anomalous result that a statute designed to remediate the effects of
fraud would instead reward those perpetrators who concealed their fraud long enough to
time-bar their victims’ remedy. We cannot believe this was Congress’ intent.” Ellis v.
GMAC, 160 F.3d 703, 708 (11th Cir. 1998) (finding the Truth In Lending Act statute of
limitations non-jurisdictional).
This reasoning applies equally to RESPA, which uses a “similarly worded”
limitations provision and serves analogous “consumer-protection purposes.” Merritt, 759
F.3d at 1038 (internal quotation marks omitted). As one district court in this circuit
correctly observed, “[s]urely RESPA . . . [was] directed at the best as well as the worst of
swindlers.” Kerby v. Mortgage Funding Corp., 992 F. Supp. 787, 793 (D. Md. 1998).
We do not believe that Congress intended to allow individuals and entities that conceal
their unlawful kickback schemes and other RESPA violations to reap the benefit of the
statute of limitations as a defense. On the contrary, allowing tolling based on fraudulent
concealment advances the goals Congress sought to serve in enacting RESPA.
Therefore, we join the majority of our sister circuits and hold that the statute of
limitations found in Section 2614 is not jurisdictional in nature and may be tolled based
on equitable grounds, including fraudulent concealment. See, e.g., In re Cmty. Bank of N.
Va. Mortg. Lending Practices Litig., 795 F.3d 380, 400 n.20 (3d Cir. 2015); Merritt, 759
F.3d at 1036–39; Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1166–
67 (7th Cir. 1997).
18
B.
Having determined that RESPA’s one-year statute of limitations is subject to
tolling on equitable grounds—including fraudulent concealment—we turn to whether the
district court applied the proper test in holding that Plaintiffs failed to adequately allege
their entitlement to tolling based on fraudulent concealment. This Court long has held
that to toll a limitations period based on fraudulent concealment, “a plaintiff must
demonstrate: (1) the party pleading the statute of limitations fraudulently concealed facts
that are the basis of the plaintiff’s claim, and (2) the plaintiff failed to discover those facts
within the statutory period, despite (3) the exercise of due diligence.” Marlinton, 71 F.3d
at 122 (citing Weinberger v. Retail Credit Co., 498 F.2d 552, 555 (4th Cir. 1974)). This
Court has repeatedly and consistently applied that three-part framework when a plaintiff
sought to invoke fraudulent concealment to toll a limitations period, including as recently
as April 2018. See, e.g., SD3 II LLC v. Black & Decker (U.S.) Inc., 888 F.3d 98, 107–08
(4th Cir. 2018); EQT Prod. Co. v. Adair, 764 F.3d 347, 370 (4th Cir. 2014); Go
Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 178 (4th Cir. 2007); Detrick v.
Panalpina, Inc., 108 F.3d 529, 541 (4th Cir. 1997); Pocahontas Supreme Coal Co., Inc.
v. Bethlehem Steel Corp., 828 F.2d 211, 218 (4th Cir. 1987).
Notwithstanding this unbroken line of precedent—which the district court
followed in Fangman—the district court this time applied a different framework in
analyzing the sufficiency of Plaintiffs’ fraudulent concealment allegations: the Supreme
Court’s two-step test for determining whether a plaintiff is entitled to equitable tolling of
a statute limitations. Under that test—which the Supreme Court most recently applied in
19
Menominee Indian Tribe v. United States, but which dates, at least, to the Court’s
decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990)—a plaintiff
seeking relief from a limitations period based on “equitable tolling” must show “(1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing,” Edmondson, 2018 WL 582514, at *4–5
(quoting Menominee, 136 S. Ct. at 755).
Contrary to the district court’s reasoning, we conclude that the two-step test the
Supreme Court applied in Menominee did not displace this Court’s three-step test for
determining whether a plaintiff is entitled to relief from a limitations period based on
fraudulent concealment. To understand why, it is necessary to recognize the “subtle and
difficult” differences between the various equitable doctrines that potentially afford
plaintiffs relief from a limitations period. Klehr v. A.O. Smith Corp., 521 U.S. 179, 192
(1997); cf. Pearl v. City of Long Beach, 296 F.3d 76, 81 (2d Cir. 2002) (noting that “[t]he
taxonomy of tolling, in the context of avoiding a statute of limitations, includes at least
three phrases: equitable tolling, fraudulent concealment of a cause of action, and
equitable estoppel”).
The first equitable doctrine that provides for tolling of a limitations period—
referred to most commonly as “fraudulent concealment”—“prevents a defendant from
‘concealing a fraud, or . . . committing a fraud in a manner that it concealed itself until’
the defendant ‘could plead the statute of limitations to protect it.’” Marlinton, 71 F.3d at
122 (quoting Bailey v. Glover, 88 U.S. 342, 349 (1874)). Put differently, the fraudulent
concealment tolling doctrine applies in situations “where the defendant has wrongfully
20
deceived or misled the plaintiff in order to conceal the existence of a cause of action.”
English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). The purpose of
fraudulent concealment doctrine is to “ensur[e] that wrongdoers are not permitted, or
encouraged, to take advantage of the limitations period to commit secret illegal conduct
without penalty.” Marlinton, 71 F.3d at 125. Under this doctrine, because of the
defendant’s wrongful acts of concealment, the plaintiff is not aware of the facts giving
rise to his claim within the limitations period.
The second equitable doctrine that provides for tolling of a limitations period—
referred to most commonly as “equitable estoppel”—applies “where, despite the
plaintiff's knowledge of the facts, the defendant engages in intentional misconduct to
cause the plaintiff to miss the filing deadline.” English, 828 F.2d at 1049. Equitable
estoppel differs from fraudulent concealment in that, unlike with fraudulent concealment,
the plaintiff is aware of his claim within the limitations period. The plaintiff’s failure to
timely file his claim derives not from his ignorance of the cause of action, but rather from
conduct taken by the defendant to induce the plaintiff not to timely file his claim. For
example, equitable estoppel might apply if a plaintiff did not timely file suit because the
defendant “promis[ed] not to plead the statute of limitations” as a defense if the plaintiff
held off on filing suit during settlement negotiations. Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 450–51 (7th Cir. 1990).
The third equitable doctrine that allows a plaintiff to avoid a statute of
limitations—referred to most frequently as “equitable tolling”—“focuses on whether
there was excusable delay by the plaintiff.” Johnson v. Henderson, 314 F.3d 409, 414
21
(9th Cir. 2002) (internal quotation marks omitted). Equitable tolling is appropriate “in
those rare instances where—due to circumstances external to the party’s own conduct—it
would be unconscionable to enforce the limitation period against the party and gross
injustice would result.” Whiteside v. United States, 775 F.3d 180, 184 (4th Cir. 2014) (en
banc) (internal quotation marks omitted). For example, equitable tolling may be
available when a plaintiff’s attorney engages in “serious misconduct” such as “ma[king]
misrepresentations to the [plaintiff], disregard[ing] the [plaintiff’s] instructions, refus[ing]
to return documents, or abandon[ing] the [plaintiff’s] case.” Downs v. McNeil, 520 F.3d
1311, 1321–22 (11th Cir. 2009) (collecting cases). Critically, however, equitable tolling
“differs from [fraudulent concealment and equitable estoppel] in that it does not assume a
wrongful—or any—effort by the defendant to prevent the plaintiff from suing.” Cada,
920 F.2d at 451; see also Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d 593,
597 (7th Cir. 2001) (characterizing “tolling of the statute of limitations . . . on the basis of
defendant misconduct” as “the domain of fraudulent concealment and equitable estoppel”
(emphasis added)).
As the Supreme Court has recognized, opinions have not always used consistent or
precise terminology to distinguish these three tolling doctrines. See Klehr, 521 U.S. at
194 (noting that “some courts have said [fraudulent concealment] ‘equitably tolls’ the
running of a limitations period . . . while other courts have said it is a form of ‘equitable
estoppel’”) (internal citation omitted). For example, notwithstanding that the doctrine we
term “equitable tolling” substantively differs from fraudulent concealment and equitable
estoppel, some opinions characterize all three doctrines as falling under the overarching
22
heading of “equitable tolling” because each of the three doctrines tolls a limitations
period on equitable grounds. See, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1387 (3d Cir. 1994), abrogated on other grounds as recognized by Rotkiske v.
Klemm, 890 F.3d 422,427–28 (3d Cir. 2018). Likewise, other opinions characterize
fraudulent concealment as a subcategory of equitable estoppel because, like the doctrine
we term “equitable estoppel,” fraudulent concealment tolls a limitations period when a
defendant’s misconduct precluded a plaintiff from timely filing its claims. See, e.g.,
Lukovsky v. City & Cty. of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008)
(“Equitable estoppel . . . focuses primarily on actions taken by the defendant to prevent a
plaintiff from filing suit, sometimes referred to as ‘fraudulent concealment.’” (emphasis
in original)); Shropshear, 275 F.3d at 597 (describing “fraudulent concealment” as “one
instantiation” of “equitable estoppel”).
Although courts have not always agreed on a uniform terminology for labeling the
various doctrines for tolling a limitations period on equitable grounds—which failure has
led to some “confus[ion],” Valdez ex rel. Donely v. United States, 518 F.3d 173, 182 (2d
Cir. 2008)—the Supreme Court, lower courts, and commentators agree that the three
doctrines are substantively different and therefore subject to different pleading and proof
standards. See Klehr, 521 U.S. at 192 (characterizing “equitable tolling” and “equitable
estoppel” as “different limitations doctrines”); Johnson, 314 F.3d at 413–14; Pearl, 296
F.3d at 81; Oshiver, 38 F.3d at 1387; 4 Charles Alan Wright, Arthur R. Miller & Adam
N. Steinman, Fed. Prac. & Proc. § 1056 (4th ed. 2015) (distinguishing “equitable tolling,”
“equitable estoppel,” and “fraudulent concealment” and noting that fraudulent
23
concealment “[m]ingl[es] elements from both the doctrines of equitable tolling and
equitable estoppel”).
Once one recognizes these substantive differences, the district court’s error in
applying Menominee’s two-part framework is apparent. Menominee deals not with
“fraudulent concealment”—the tolling doctrine Plaintiffs seek to invoke. Rather,
Menominee—and the earlier Supreme Court decisions Menominee follows in applying its
two-part test—involves the tolling doctrine that is potentially applicable when a
plaintiff’s failure to timely file suit is not attributable wrongful conduct by the
defendant—the tolling doctrine this opinion terms “equitable tolling.”
In Menominee, for example, the Supreme Court considered whether the
Menominee Indian Tribe of Wisconsin (the “Tribe”) could rely on “equitable tolling to
preserve contract claims not timely presented to a federal contracting officer.” 136 S. Ct.
at 753. The Tribe did not timely present its contract claims to a federal contracting
officer because the Tribe (mistakenly) believed (1) that it was the member of a proposed
class in an earlier-filed putative class action related to the same alleged wrongdoing and,
therefore, (2) that the Tribe’s claim was eligible for class-action tolling. Id. at 755. Put
differently, the Tribe sought “equitable tolling” based on its mistaken belief that it was
eligible for class-action tolling, despite knowing of its contract claims. Id. at 756–57.
Applying the two-part test under which a plaintiff must establish “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing,” the Supreme Court held that the Tribe was not
entitled to equitable tolling. Id. at 755–57 (quoting Holland v. Florida, 560 U.S. 631,
24
649 (2010)). In particular, the Court held that the Tribe failed to satisfy the
“extraordinary circumstances” element because the Tribe’s “mistaken reliance on the
putative . . . class action was not an obstacle beyond its control.” Menominee, 136 S. Ct.
at 756. “This mistake was fundamentally no different from a garden variety claim of
excusable neglect . . . such as a simple ‘miscalculation’ that leads a lawyer to miss a
filing deadline,” and was thus insufficient to meet the “extraordinary circumstances”
standard, the Court reasoned. Id. at 757 (internal quotation marks and citations omitted).
Menominee, therefore, involved the tolling doctrine this opinion terms “equitable
tolling.” The Tribe sought relief based on its mistake. Unlike Plaintiffs’ invocation of
the fraudulent concealment tolling doctrine, the Tribe did not contend that the defendant
was in any way responsible for the Tribe’s failure to timely file its action.
Notably, all the precedent that Menominee relied on in applying its two-part
“equitable tolling” test presented the same scenario—a plaintiff seeking tolling of a
limitations period on grounds that did not involve misconduct by the defendant. See
Holland, 560 U.S. at 634 (addressing whether a habeas petitioner was entitled to
equitable tolling based on his attorney’s unprofessional conduct); Lawrence v. Florida,
549 U.S. 327, 336–37 (2007) (addressing whether a habeas petitioner was entitled to
equitable tolling based on, among other grounds, purported “legal confusion” as to
whether the relevant limitations period was tolled by the filing of a certiorari petition and
his counsel’s “mistake in miscalculating the limitations period”); Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005) (addressing whether a habeas petitioner was entitled to
equitable tolling because “‘state law and Third Circuit exhaustion law created a trap’ on
25
which he detrimentally relied”); Irwin, 498 U.S. at 96 (addressing whether plaintiff in
employment action was entitled to equitable tolling “because his lawyer was absent from
his office at the time the [Equal Employment Opportunity Commission] notice was
received” (emphasis added)). None of these cases involved a plaintiff seeking tolling
based on fraudulent concealment—the tolling doctrine that applies when a defendant’s
wrongful conduct prevents a plaintiff from learning of the facts necessary to assert a
claim within the limitations period—the form of tolling at issue here.
Because Menominee dealt with a different tolling doctrine, it could not—and did
not—abrogate this Court’s long-standing three-step test for determining whether a
plaintiff is entitled to relief from a limitations period based on fraudulent concealment.
See Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993) (“A decision of
a panel of this court becomes the law of the circuit and is binding on other panels unless
it is overruled by a subsequent en banc opinion of this court or a superseding contrary
decision of the Supreme Court.” (internal quotation marks omitted)). That this Court has
applied Marlinton’s three-step framework in assessing fraudulent concealment claims
numerous times after the Supreme Court first adopted the two-step test applied in
Menominee—including after Menominee itself—further demonstrates that fraudulent
concealment differs from the form of equitable tolling at issue in Menominee. See SD3,
888 F.3d at 107–08; EQT Prod., 764 F.3d at 370; Go Computer, 508 F.3d at 178.
Tellingly, none of these prior fraudulent concealment opinions discuss, much less apply,
the two-step test applied in Menominee.
26
Equally tellingly, none of the cases the Lenders cite as establishing the
applicability of Menominee to Plaintiffs’ request for tolling on equitable grounds dealt
with alleged fraudulent concealment; rather, each case deals with the tolling doctrine this
opinion terms “equitable tolling.” See Cunningham v. C.I.R., 716 Fed. App’x 182, 185
(4th Cir. 2018) (seeking “equitable tolling” based on the plaintiff’s “miscalculation of the
filing deadline [that] may well have been an innocent mistake”); Knaupf Installation, Inc.
v. S. Brands, Inc., 820 F.3d 904, 907–10 (7th Cir. 2016) (requesting equitable tolling
when plaintiff, through no fault of the defendant, did not “realiz[e] that it been removed
from the class” of a previously filed class action and, therefore, that it was no longer
entitled to class action tolling); Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d 958,
971–72 (11th Cir. 2016) (applying the Menominee test because the plaintiff did not allege
that the defendant “actively misled him”).
In sum, we hold that Menominee does not supplant this Court’s long-standing
three-step framework for analyzing allegations of fraudulent concealment. Accordingly,
the district court committed legal error when it applied Menominee’s two-step framework
and dismissed Plaintiffs’ action for failing to satisfy the “extraordinary circumstances”
element. 5
5
Even if Menonminee’s “extraordinary circumstances” element was a component
of the fraudulent concealment analysis—which it is not—a defendant’s fraudulent
concealment of its wrongdoing would seem to constitute per se “extraordinary
circumstances.” See Menominee, 136 S. Ct. at 757 (stating that “relying on actually
binding precedent that is subsequently reversed” or other “obstacle[s] beyond [a
plaintiff’s] control” could constitute “extraordinary circumstances,” whereas “garden
variety . . . excusable neglect” and “simple miscalculation” would not); see also Harris,
(Continued)
27
C.
Having concluded that this Court’s three-step test for determining whether a
plaintiff is entitled to invoke the doctrine of fraudulent concealment continues to apply,
we now turn to whether Plaintiffs’ allegations bearing on fraudulent concealment are
sufficient to survive a motion to dismiss under Rule 12(b)(6).
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.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “Although it is true that the complaint must contain sufficient facts to state
a claim that is plausible on its face, it nevertheless need only give the defendant fair
notice of what the claim is and the grounds on which it rests.” Hall v. DirecTV, LLC, 846
F.3d 757, 765 (4th Cir. 2017) (internal quotation marks omitted).
Additionally, under Rule 9(b) “a party must state with particularity the
circumstances constituting fraud or mistake,” including Plaintiffs’ allegations bearing on
the Lenders’ alleged fraudulent concealment. To satisfy Rule 9(b), a plaintiff must plead
209 F.3d at 330 (noting that in the absence of allegations of wrongful conduct by the
defendant, the plaintiff “must be able to point to some other extraordinary circumstance
beyond his control that prevented him from complying with the statutory time limit”
(emphasis added)). Put simply, a defendant’s affirmative effort to conceal its
wrongdoing in a manner that prevents a plaintiff from learning the facts necessary to
allege a cause of action within the limitations period amounts to circumstances “external”
to the plaintiff’s control in which it would be “unconscionable to enforce the limitation
period against the [plaintiff] and gross injustice would result.” Whiteside, 775 F.3d at
184 (internal quotation marks omitted).
28
“the time, place, and contents of the false representations, as well as the identity of the
person making the misrepresentation and what he obtained thereby.” Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (quoting 5 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1297, at 590 (2d
ed. 1990)). Nevertheless, a court “should hesitate to dismiss a complaint under Rule 9(b)
if the court is satisfied (1) that the defendant has been made aware of the particular
circumstances for which [it] will have to prepare a defense at trial, and (2) that plaintiff
has substantial prediscovery evidence of those facts.” Id.
To satisfy the first element of the fraudulent concealment test, a plaintiff must
“provide evidence of affirmative acts of concealment” by the defendants. Marlinton, 71
F.3d at 126. “Those acts, however, need not be separate and apart from the acts of
concealment,” but instead “may include acts of concealment involved in the [alleged]
violation itself.” Id. A plaintiff satisfies its burden to allege an affirmative act of
concealment if, for example, it alleges that the defendant employed “some trick or
contrivance intended to exclude suspicion and prevent inquiry.” Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 446–47 (6th Cir. 2012) (internal quotation marks
omitted).
Here, Plaintiffs allege, with particularity, several “trick[s] or contrivance[s]”
Genuine Title and the Lenders employed to conceal the alleged unlawful kickback
scheme. Plaintiffs allege that both Genuine Title and the Lenders created and used
“sham” entities to channel the allegedly unlawful cash kickbacks—entities that, in many
cases, shared the same registered agent and address as Genuine Title. E.g., J.A. 18–20,
29
23, 26. The complaints allege the names of the sham entities, the broker or loan officer
connected to each sham entity, and the dates Genuine Title allegedly funneled kickback
payments through the entities. The use of sham entities to conceal the source and flow of
the kickback payments constitutes an affirmative act of concealment. Reiser v.
Residential Funding Corp., 420 F. Supp. 2d 940, 947 (S.D. Ill. 2004) (holding that
alleged use of “sham entity . . . to funnel secret kickbacks” constituted an affirmative act
of concealment in RESPA case), rev’d in part on other grounds by 380 F.3d 1027 (7th
Cir. 2004); cf. United States v. Bolden, 325 F.3d 471, 490 (4th Cir. 2003) (“The creation
and use of sham businesses is highly relevant to the proof of concealment money
laundering.”).
The complaints further allege that, after regulators began investigating the
kickback scheme, the Lenders’ brokers and loan officers entered into “sham” Title
Services Agreements and “back-dated” those agreements to further disguise the kickback
scheme. J.A. 16–17. As with the Lenders’ alleged use of sham business entities, the
alleged creation of sham business agreements—such as the “back-dated” agreements at
issue here—constituted an affirmative act of concealment. See GolTV, Inc. v. Fox Sports
Latin Am., Ltd., No. 16-cv-24431, 2018 WL 1393790, at *23 (S.D. Fla. Jan. 26, 2018); cf.
State of N.Y. v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988) (“The
passing off of a sham article as one that is genuine is an inherently self-concealing
fraud.”).
Finally, Plaintiffs allege the Lenders concealed their kickback scheme by not
reporting the payments on Plaintiffs’ required HUD-1 Settlement Statements,
30
notwithstanding that governing regulations required reporting such payments. As the
Third Circuit has recognized, omitting required information from the HUD-1 Settlement
Statement form can constitute an affirmative act of concealment for purposes of the
fraudulent concealment tolling doctrine. See In re Comm. Bank of N. Va. Mortg. Lending
Practics Lit., 795 F.3d 380, 403 (3d Cir. 2015) (“[I]nclusion of misleading information in
a HUD-1 can constitute an independent act of concealment.”).
When taken as true for purposes of a motion to dismiss—as we must—these are
adequate factual allegations of acts of concealment. Notably, the district court in
Fangman reached exactly that conclusion when it considered substantively
indistinguishable factual allegations. See Fangman, 2016 WL 6600509, at *6.
Having concluded that Plaintiffs satisfied their burden to allege affirmative acts of
concealment, the remaining question is whether Plaintiffs exercised due diligence to
uncover the facts supporting their claims and yet failed to uncover such facts within the
limitations period. See Marlinton, 71 F.3d at 122. Generally, whether a plaintiff
exercised due diligence is a jury issue not amenable to resolution on the pleadings or at
summary judgment. See, e.g., TCF Nat. Bank v. Market Intelligence, Inc., 812 F.3d 701,
711 (8th Cir. 2016) (“Generally, fraudulent concealment and a plaintiff’s due diligence
are questions of fact unsuited for summary judgment.” (internal quotation omitted));
Morton’s Market, Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 832 (11th Cir. 1999)
(“[T]he issue of when a plaintiff in the exercise of due diligence should have known of
the basis of his claims is not an appropriate question for summary judgment.”); Carrier
Corp., 673 F.3d at 448–49 (declining to dismiss on the pleadings fraudulent concealment
31
claim on lack of diligence grounds); see also Reiser v. Residential Funding Corp., 380
F.3d 1027, 1030 (7th Cir. 2004) (“[B]ecause the period of limitations is an affirmative
defense it is rarely a good reason to dismiss under Rule 12(b)(6).”).
Although the district court did not decide whether Plaintiffs’ complaints
sufficiently alleged diligence, see Edmondson, 2018 WL 582514, at *6, the Lenders
principally argue that Plaintiffs cannot satisfy the diligence requirement because
Plaintiffs conceded that they did not engage in any inquiry during the limitations period.
But this Court long has held that “it is possible for a plaintiff to satisfy [the due diligence
requirement] without demonstrating that it engaged in any specific inquiry.” Marlinton,
71 F.3d at 128. “If the plaintiff establishes that it was not (and should not have been)
aware of facts that should have excited further inquiry on its part”—if the plaintiff was
not on inquiry notice—“then there is nothing to provoke inquiry.” Id. 6
As explained above, Marlinton continues to set forth this Court’s controlling test
for determining whether a plaintiff is entitled to tolling based on fraudulent concealment.
See supra Part II.B. In accordance with Marlinton, Plaintiffs allege that they “did not and
could not have known about the Kickback Scheme, due to Genuine Title and [the
6
By contrast, if a plaintiff is “aware of facts that should have excited further
inquiry,” then, so long as the plaintiff engages in “reasonable further inquiry,” the
limitations period is tolled—and therefore does not begin to run—until such an inquiry
would have revealed sufficient facts for the plaintiff to state a claim that would survive a
motion to dismiss. Marlinton, 71 F.3d at 128; see also SD3, 888 F.3d at 112 (holding
that a plaintiff is on notice when it is aware (or should have been aware) of “enough
factual information from which [the plaintiff] could plead their cause of action for Rule
12(b)(6) purposes”).
32
Lenders’] efforts to conceal the kickbacks from Plaintiff, Class Members, and regulators,
until contacted by . . . counsel on or about April 20, 2016.” J.A. 18. Likewise, Plaintiffs
further allege that “[n]o reasonable borrower diligence or investigation would have
uncovered the fact, mechanics, and extent of this illegal kickback scheme until contacted
by counsel.” J.A. 185–86.
Nevertheless, the Lenders argue that several pieces of public information should
have “excited further inquiry” by Plaintiffs, Marlinton, 71 F.3d at 128—private litigation,
including Fangman, related to Genuine Title’s RESPA violations; the Consumer
Financial Protection Bureau’s and Maryland Attorney General’s enforcement actions
against Genuine Title, Wells Fargo, and J.P. Morgan; and media coverage of those
enforcement actions. Given that the adequacy of a plaintiff’s diligence is generally not
amenable to resolution on the pleadings, we conclude that none of these pieces of
information precluded Plaintiffs’ from meeting their pleading stage burden as to the
diligence element of the fraudulent concealment test.
To be sure, the filing of similar lawsuits against the same defendant “may in some
circumstances suffice to give notice” of possible claims. In re Beef Indus. Antitrust
Litig., 600 F.2d 1148, 1171 (5th Cir. 1979). In other circumstances, however, “the mere
availability of open and readily accessible public records”—such as legal filings—“may
not suffice by itself to defeat a fraudulent-concealment claim,” particularly if a plaintiff
lacks “ample reason to look at these records.” Ruth v. Unifund CCR Ptrs., 604 F.3d 908,
911 (6th Cir. 2010).
33
Regarding Fangman in particular, only two of the Lenders (Eagle Bank and Bank
of America) were ever parties to that litigation. And Eagle Bank and Bank of America
were dismissed from the Fangman litigation in its early stages. See J. v. Genuine Title,
LLC, 2015 WL 8315704, at *1. Indeed, the Fangman plaintiffs voluntarily withdrew
their claims against Bank of America before the court ruled on Bank of America’s motion
to dismiss. Id. at *1 n.6. It is difficult to imagine that Plaintiffs in this action could have
accessed—or did access—the relevant filings, orders, and opinions in Fangman, all of
which were unpublished and accessible only through a LexisNexis, WestLaw, or a
PACER account. And the motion to dismiss record before this Court includes no
evidence that any aspect of the Fangman proceedings was publicized, let alone
publicized in a media outlet regularly consulted by a Plaintiff, meaning that this record is
devoid of any “reason [for a Plaintiff] to look at these records.” Ruth, 604 F.3d at 911.
In the absence of such information, we decline to hold the Fangman litigation, as a
matter of law, placed Plaintiffs on inquiry notice. Put simply, the fraudulent concealment
doctrine requires reasonable diligence; it does not necessarily hold individual borrowers
to the diligence standard of combing court filings in potentially related cases, particularly
when the borrower has no reason to be aware of the related cases. Additionally, to the
extent any Plaintiff was, or should have been aware, that Eagle Bank and Bank of
America were parties to the Fangman litigation, the two Lenders’ early dismissal may
have led that Plaintiff to reasonably believe that Eagle Bank and Bank of America were
not involved in the alleged wrongdoing.
34
Unlike with the Fangman litigation, the Consumer Financial Protection Bureau’s
and Maryland Attorney General’s enforcement actions against Genuine Title, Wells
Fargo, and J.P. Morgan were publicized, both through agency press releases and in
newspaper articles in the Baltimore Sun and the Washington Post (albeit, on pages 12A
and A14 of those papers, respectively). But whereas two of the Lenders were (briefly)
party to the Fangman proceedings, none of the Lenders in this case were parties to the
federal and state enforcement proceedings, nor were any of the Lenders mentioned in the
newspaper articles discussing those enforcement proceedings. “[N]otice of one wrong by
a defendant” does not necessarily “trigger[] a duty for potential plaintiffs to investigate
all other potential wrongs the defendant might be committing.” Morton’s Market, 198
F.3d at 834. Just because Genuine Title engaged in an illegal kickback scheme with
brokers and loan officers employed by certain lenders does not establish, for purposes of
a motion to dismiss under Rule 12(b)(6), that a reasonable borrower would have
suspected that Genuine Title provided such kickbacks to brokers and loan officers
employed by other lenders. See In re Cmty. Bank, 795 F.3d at 404 (“Due diligence does
not mean that borrowers must presume their bank is lying or dissembling and therefore
that further investigation is needed.”).
More significantly, the limited record before this Court is devoid of evidence
suggesting—much less proving—that any Plaintiff had access to, or read, the press
releases or the newspaper articles that the Lenders maintain placed Plaintiffs on inquiry
notice. The absence of such evidence sets this case apart from the cases relied on by the
Lenders in which a court found publicly available information placed a plaintiff on
35
inquiry notice. For instance, in Pomeroy v. Schlegel Corp., 780 F. Supp. 980 (W.D.N.Y.
1991), the plaintiff sought relief from the limitations period in a securities fraud case
based on fraudulent concealment, id. at 983. Following discovery, the defendant moved
for summary judgment on grounds that plaintiff was on inquiry notice—but failed to
engage in a reasonable investigation—based on a newspaper article discussing an earlier-
filed lawsuit alleging the same fraud. Id. at 981. The district court held that, under the
undisputed facts, the plaintiff was on inquiry notice because the plaintiff admitted during
his deposition that he read the specific newspaper article discussing the related lawsuit.
Id. at 983 (“Mr. Pomeroy had inquiry notice of Schlegel’s alleged fraudulent concealment
when he read about the Hickman lawsuit.”).
Likewise, in J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc.,
76 F.3d 1245 (1st Cir. 1996), the plaintiff employee benefit plan sought to invoke
fraudulent concealment to avoid the limitations period in a fraud and breach of fiduciary
duty case against the investment manager for a retirement plan, id. at 1255–56. The
plaintiff alleged the investment manager made “material oral and written
misrepresentations regarding the value and safety of the investments, the amount of profit
generated by the trades, and the amounts of commissions charged.” Id. at 1256. The
First Circuit held that the district court properly awarded summary judgment to the
investment manager on limitations grounds, holding that the undisputed evidence
established that the plaintiff received several investment prospectuses from the
investment manager that, coupled with the investment manager’s public statements,
36
provided the plaintiff with “sufficient storm warnings of the alleged misrepresentations
and the possibility of fraud” to place the plaintiff on inquiry notice. Id.
Similarly, in Cunningham v. M&T Bank Corp., 814 F.3d 156 (3d Cir. 2016), the
plaintiff sought relief from the limitations period based on fraudulent concealment in a
RESPA case alleging that the defendant bank used a reinsurance program that allegedly
constituted an unlawful fee-splitting agreement, id. at 161. The Third Circuit held that
the district court properly awarded the defendant summary judgment on limitations
grounds. Id. at 158. The plaintiffs could not rely on fraudulent concealment, the court
reasoned, because the plaintiffs received and signed documents during the closing of their
mortgages that disclosed and explained the allegedly unlawful reinsurance arrangement,
yet “took no steps to investigate” whether the arrangement violated RESPA. Id. at 161–
62; see also Egerer v. Woodland Realty, Inc., 556 F.3d 415, 422 (6th Cir. 2009) (rejecting
a request for tolling based on fraudulent concealment in a RESPA case when a document
signed by the plaintiffs at closing disclosed the alleged kickback).
Whereas the summary judgment record in Pomeroy, J. Geils Band, and
Cunningham established that the plaintiff read or received the specific article or
document that placed the plaintiff on inquiry notice, here the record is devoid of any
evidence that any Plaintiff read, or even received, the press releases or newspaper articles
37
that the Lenders claim placed Plaintiffs on inquiry notice. Accordingly, at this early stage
of the proceedings, Pomeroy, J. Geils Band, and Cunningham are inapposite. 7
In rejecting the Lenders’ assertion that Plaintiffs were on inquiry notice based on
the state and federal enforcement actions and media coverage of those actions, we also
find it significant that several of the decisions relied on by the Lenders for the proposition
that publicly available information can place a plaintiff on inquiry notice involved
plaintiffs that were sophisticated business entities, as opposed to consumers. For
example, Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir. 1975),
involved an antitrust action by a defunct tire manufacturer, Dayco, that alleged it was
forced out of the market as a result of a price-fixing scheme orchestrated by two other tire
manufacturers, id. at 390. The Sixth Circuit held that Dayco could not obtain relief from
the limitations period based on fraudulent concealment because congressional hearings
and a Federal Trade Commission suit had described some of the violations alleged in
Dayco’s complaint more than a decade before Dayco filed suit. Id. at 394. Those
7
As part of its analysis of Menominee’s (inapplicable) “extraordinary
circumstances” element, the district court relied heavily on the fact that “[i]n June 2015,
Plaintiff[s’] counsel had access to Genuine Title’s buyers’ names, addresses, telephone
numbers, property addresses, settlement dates, lender and in some cases mortgage broker
information.” Edmondson, 2018 WL 582514, at *6. But counsel did not contact
Plaintiffs to inform them of their potential claims—and become Plaintiffs’ counsel—until
a year later. The notice component of Marlinton’s three-prong test focus on the
information known to the plaintiff, not the plaintiff’s counsel. To be sure, once a plaintiff
hires counsel to investigate a claim, it may be appropriate to impute the counsel’s
knowledge to the plaintiff. But until that point, a plaintiff cannot be charged with the
knowledge of his yet-to-be-retained counsel. We know of no opinion holding otherwise,
nor have the Lenders identified any such opinion.
38
proceedings “should have aroused Dayco’s suspicions, and its failure to investigate
further at that time was not the exercise of due diligence required in order to employ the
fraudulent concealment doctrine.” Id. Likewise, the First Circuit held that the
investment prospectuses placed the plaintiff employee benefit plan on inquiry notice of
its fraud and breach of fiduciary duty claims against the defendant investment manager.
See J. Geils Band, 76 F.3d at 1256–57.
In short, “[i]nquiry notice . . . charges a person to investigate when the information
at hand would have prompted a reasonable person to do so.” Go Computer, 508 F.3d at
178 (emphasis added). Thus, the Sixth Circuit in Dayco Corp. held that one should
expect a reasonable tire manufacturer to be aware of enforcement actions and
congressional investigations into the tire manufacturer’s competitors, and the First Circuit
in J. Geils Band held that one should expect a reasonable employee benefit plan to
review the investment prospectuses it receives from its investment manager.
But what constitutes reasonable conduct for one type of plaintiff may not
constitute reasonable conduct for another type of plaintiff. See Morton’s Market, 198
F.3d at 832. Such is particularly true in determining whether one would expect a
reasonable residential mortgage borrower to keep abreast of all enforcement actions
related to the mortgage lending and title services industries. We believe that issue should
be decided by the finder of fact and is not amenable to resolution on the pleadings or at
summary judgment.
39
*****
In sum, Plaintiffs sufficiently pleaded that the Lenders engaged in affirmative acts
of concealment. And based upon the limited record before this Court, we cannot
conclude as a matter of law that these Plaintiffs unreasonably failed to discover or
investigate the basis of their claims within the limitations period.
III.
For the reasons stated above, the district court erred in holding that the two-
element test applied in Menominee abrogated this Court’s long-standing three-element
test for determining whether a plaintiff is entitled to relief from a limitations period based
on the fraudulent concealment tolling doctrine. Applying the proper test, we hold that
Plaintiffs’ allegations as to fraudulent concealment are sufficient to withstand the
Lenders’ motions to dismiss. 8
Accordingly, we reverse the judgment of the district court and remand this case for
further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED
8
Defendant Bank of America further argues that the complaint against it should be
dismissed because the plaintiffs “failed to adequately plead valid claims under RESPA.”
Appellee’s Br. at 60. The district court did not address this argument in its motion-to-
dismiss opinion, and, therefore, we decline to exercise our discretion to address it in the
first instance.
40