United States District Court, D. Delaware
La Mar Gunn, Camden Wyoming, Delaware; Pro Se Plaintiff.
Seth Andrew Niederman, Esquire, Fox Rothschild LLP, Wilmington, Delaware; Counsel for Defendant.
RICHARD G. ANDREWS, District Judge.
Plaintiff La Mar Gunn filed this action alleging violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617; the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601, and a claim for breach of contract. (D.I. 3, 20). Gunn seeks compensatory, statutory, treble, and punitive damages, as well as equitable relief. He appears pro se and has been granted leave to proceed in forma pauperis (D.I. 7). The Court now considers the Defendant's Motion to Dismiss (D.I. 22) the amended complaint. The matter has been fully briefed. (D.I. 23, 24).
This is a lawsuit following the foreclosure of property Gunn purchased that was encumbered by a first mortgage. ( See D.I. 14 n.2). The original complaint named Douglas A. Shachtman and First American Financial Corporation as defendants. Upon motion, the Court dismissed all claims against Shachtman and, upon screening of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), dismissed the remaining claims (RESPA, TILA, and contract) as frivolous finding them time-barred. Upon appeal, the dismissal of Shachtman was affirmed. The Third Circuit vacated dismissal of the remaining claims and remanded for consideration of the issue of equitable tolling upon Plaintiff's filing of an amended complaint. ( See D.I. 18).
Gunn filed an amended complaint on January 29, 2014. (D.I. 20). On February 12, 2014, First American filed a motion to dismiss pursuant to Rule 12(b)(6) on the grounds that the Amended Complaint names the wrong defendant, fails to state claims under the RESPA and the TILA, and that all claims are time-barred with no basis for equitable tolling.
First American provided Gunn settlement services at the time he purchased real property in Bear, Delaware. The Amended Complaint alleges that on March 6, 2006, First American Financial Corporation, doing business as First American Title, through its agent Lender's First Choice, provided Gunn with a title policy commitment. (D.I. 20, ¶¶ 7, 9). At closing, First American issued a first lien title insurance policy on the property. ( Id. at ¶ 11). Gunn alleges that First American represented to him that there were no liens on the property, that all outstanding liens were satisfied and, based upon those representations, he incurred a $360, 000 mortgage. ( Id.). The Amended Complaint alleges that First American "fraudulently concealed the facts as evidenced by the subject title policy issued on March 6, 2006." ( Id. at ¶ 13). It further alleges that a counterfeit document was prepared and signed by Select Portfolio Servicing employees Madeline Ramos and Nikole Shelton, none of whom are named defendants in this action. ( Id. at ¶ 15). Finally, the Amended Complaint alleges that the closing took place without an attorney, even though one is required in Delaware. Gunn alleges that First American told Gunn an attorney was not needed. ( Id. at ¶ 20).
STANDARDS OF LAW
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). "In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements." Id. at 678. When determining whether dismissal is appropriate, the court must take three steps: "(1) identify the elements of the claim, (2) review the complaint to strike conclusory allegations, and then (3) look at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Because Gunn proceeds prose, his pleading is liberally construed and his Amended Complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).
Count One (¶¶ 21-27) alleges that First American willfully violated RESPA when it misrepresented to Gunn that he was in first title position and that there were no liens against the property in violation of 12 U.S.C. §§ 2601 through 2617. The count alleges that First American, through its agents, performed a title search and was aware of the counterfeit document clouding title. In addition, it alleges that an agent of First American reviewed and confirmed the title search performed by Lenders First Choice on March 3, 2006, and that First American and its agents intentionally misrepresented the facts surrounding Gunn's title. Count One alleges that Lenders First Choice issued "bogus title policies" through First American. Gunn alleges that, because he paid for the title policy, First American is obligated to either attack the counterfeit documents filed ...