Hancock, Talmadge v. HomEq Svc Corp , 526 F.3d 785 ( 2008 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2008 Decided May 23, 2008
No. 07-7076
TALMADGE HANCOCK AND OVEDA HANCOCK,
APPELLANTS
v.
HOMEQ SERVICING CORPORATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00307)
Anthony F. Shelley, appointed by the court, argued the cause
and filed the briefs as amicus curiae in support of appellant.
William S. Bach, Talmadge Hancock, and Oveda Hancock
entered appearances.
Rodney S. Caulkins and William L. Mitchell II argued the
cause for appellees. With them on the brief was Jennifer L.
Sarvadi. Charles E. Gustafson entered an appearance.
2
Before: ROGERS and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
PER CURIAM: The executors of Carolyn Hancock’s estate
appeal the grant of summary judgment on their complaint
alleging fraud and other illegal acts by appellees1 in connection
with a loan obtained by Carolyn Hancock in 1994. Because the
complaint is barred by the statute of limitations, D.C. Code
§§ 12-301(3), (8),2 we affirm.
I.
In 1994, Carolyn Hancock borrowed $55,000 from
appellees, pledging as security her house in the District of
Columbia where she lived with her two adult children, the
executors of her estate and appellants here. At the time, she was
seventy-eight years old and retired from her job as a keypunch
operator. She had lived in the house since the 1970s and
managed all of its financial affairs. She continued to make the
1
For purposes of this opinion it is unnecessary to distinguish
the roles of the various defendants and we refer to them collectively
as “appellees.”
2
The court will grant appellees’ motion to file an affidavit
pursuant to 28 U.S.C. § 1653 in order to establish complete diversity
of citizenship and hold that the district court had diversity jurisdiction.
See Draim v. Virtual Geosatellite Holdings, Inc., 522 F.3d 452, 454
n.1 (D.C. Cir. 2008); GEICO v. Fetisoff, 958 F.2d 1137, 1140 (D.C.
Cir. 1992); District of Columbia, ex rel. Am. Combustion, Inc. v.
Transamerica Ins. Co., 797 F.2d 1041, 1044 (D.C. Cir. 1986). The
complaint alleges that appellees’ claimed interest in the mortgage loan
was $89,000, Compl. ¶ 72, and thus states an amount in controversy
over $75,000, 28 U.S.C. § 1332(a).
3
monthly payment of $555 on the loan until her death in 1997.
Appellants, who knew few details about the loan, continued
making the monthly payments until 1999 and thereafter filed for
bankruptcy on several occasions in an apparent attempt to stave
off foreclosure on the house.
In January 1999, appellants obtained copies of loan
documents from the D.C. Recorder of Deeds, including the Deed
of Trust, which indicated that it had been executed by Carolyn
Hancock on October 7, 1994 in Baltimore County, Maryland.
Three years later, in January 2003, appellants found a file that
contained documents indicating that Carolyn Hancock’s
signature and the location of the execution of the Deed of Trust
had been forged. Appellants consulted an attorney and filed suit
against appellees on January 6, 2005. The complaint alleged
various unlawful acts, including that the loan documents
fraudulently indicated that the loan agreement was executed in
Baltimore County, Maryland.3 The district court granted
appellees’ motion for summary judgment on the ground that the
three-year statute of limitations had begun to run by January
1999.
II.
The parties agree that the three-year statute of limitations
under D.C. Code §§ 12-301(3), (8), applies, but disagree when
the limitations period commenced. Under the discovery rule in
the District of Columbia, a statute of limitations begins to run
3
The complaint alleged violations of the D.C. Consumer
Protection Procedures Act, D.C. Code §§ 28-3901 et seq., D.C. Usury
Law, id. §§ 28-3301 et seq., D.C. Money Transmitters Act, id. §§ 26-
1001 et seq., and conversion, breach of fiduciary duty, and common
law fraud, as well as related conspiracy, aiding and abetting, and
derivative claims.
4
from the time the injured party “knows, or with the exercise of
reasonable diligence would have known, of some injury, its
cause-in-fact, and some evidence of wrongdoing.” Diamond v.
Davis, 680 A.2d. 364, 381 (D.C. 1996). Appellants, through
amicus curiae, assert two errors by the district court; neither is
well taken.4
First, relying on Goldman v. Bequai, 19 F.3d 666, 669 (D.C.
Cir. 1994), appellants contend that the district court should have
taken into account the special circumstances of Carolyn
Hancock and appellants, specifically that she was elderly and
unsophisticated in financial matters, and that they lacked
knowledge about the loan transaction at the time of its
consummation. However, consistent with the reasonable person
standard of the D.C. discovery rule, see Hendel v. World Plan
Executive Council, 705 A.2d 656, 661 n.5 (D.C. 1997), the
district court adequately considered these circumstances. The
district court noted Carolyn Hancock’s age, her retirement
status, and the nature of her prior employment, and none of its
findings suggest that Carolyn Hancock was financially
sophisticated. Further, the district court’s findings do not
suggest that appellants were aware of the loan transaction in
1994.
Second, appellants contend that summary judgment on the
statute of limitations was improper because material facts are in
dispute as to when they had evidence of appellees’ wrongdoing.
Even assuming there was a material issue regarding what loan
documents Carolyn Hancock saw in 1994, no disputed facts
exist with respect to whether appellants were on inquiry notice
4
Our review of the grant of summary judgment is de
novo. See Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1040 (D.C.
Cir. 2008).
5
after they obtained loan documents from the D.C. Recorder of
Deeds in January 1999. The difficulty for appellants arises from
their theory of the case. According to the complaint, Carolyn
Hancock never learned to drive and did not have a driver’s
license. Compl. ¶ 18. In 1994, she stayed at home most days
unless appellants took her out and “never left the home unless
accompanied by one of them.” Id. ¶ 19. Further, appellants
“had an implicit understanding [with their mother that she]
would not leave the home for an extended period of time
without telling them, and certainly would not have traveled over
30 miles to borrow $55,000 without letting them know her
whereabouts.” Id. (emphasis added). Having alleged that
Carolyn Hancock would “certainly” not have traveled to
Baltimore to secure such a loan without alerting them, an
allegation that has not been retracted, appellants cannot avoid
the conclusion that loan documents reporting such an event are
evidence of wrongdoing.
Consequently, upon obtaining a copy of the Deed of Trust
in January 1999 that stated Carolyn Hancock had executed the
deed in Baltimore County, Maryland, appellants had “reason to
suspect that the [appellees] did something wrong, even if the full
extent of the wrongdoing [was] not yet known,” Wagner v.
Sellinger, 847 A.2d 1151, 1154 (D.C. 2004). Indeed, the record
indicates that appellants at that time had such suspicions and
were concerned about the propriety of the loan. Although
appellants did not discover physical evidence of forgery until
January 2003, the evidence and suspicion they had in 1999
indicates that they were not reasonably diligent in investigating
and legally challenging the loan. See Diamond, 680 A.2d at
377.
Accordingly, we affirm the grant of summary judgment.