Filed: Jan. 09, 2020
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-1333 _ DONALD EBNER, Appellant v. THE BANK OF NOVA SCOTIA On Appeal from the District Court of the Virgin Islands District Court No. 1-18-cv-00002 Magistrate Judge: The Honorable George W. Cannon Argued December 11, 2019 Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges (Filed: January 9, 2020) Vincent A. Colianni, II [ARGUED] Colianni & Colianni 1138 King Street Christiansted, VI 00820 Counsel for Appell
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 19-1333 _ DONALD EBNER, Appellant v. THE BANK OF NOVA SCOTIA On Appeal from the District Court of the Virgin Islands District Court No. 1-18-cv-00002 Magistrate Judge: The Honorable George W. Cannon Argued December 11, 2019 Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges (Filed: January 9, 2020) Vincent A. Colianni, II [ARGUED] Colianni & Colianni 1138 King Street Christiansted, VI 00820 Counsel for Appella..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1333
_____________
DONALD EBNER,
Appellant
v.
THE BANK OF NOVA SCOTIA
On Appeal from the District Court
of the Virgin Islands
District Court No. 1-18-cv-00002
Magistrate Judge: The Honorable George W. Cannon
Argued December 11, 2019
Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges
(Filed: January 9, 2020)
Vincent A. Colianni, II [ARGUED]
Colianni & Colianni
1138 King Street
Christiansted, VI 00820
Counsel for Appellant
Carol A. Rich [ARGUED]
Malorie R. Winne Diaz
Dudley Rich
5194 Dronningens Gade
Suite 3
St. Thomas, VI 00802
Counsel for Appellee
_____________________
OPINION*
_____________________
SMITH, Chief Judge.
Donald Ebner claims that the Bank of Nova Scotia (“Scotiabank”), his mortgage
servicer and escrow agent, failed to timely renew his property insurance in 2014, 2015,
2016, and 2017. As a result, he asserts that Scotiabank violated the Real Estate
Settlement and Procedures Act (“RESPA”) and the related contractual and fiduciary
duties it owed Ebner. Because Ebner’s claims are time-barred, we will affirm the District
Court’s order granting summary judgment to Scotiabank.
I
In July 2010, Ebner financed the purchase of a home in Estate Judith’s Fancy, St.
Croix with a mortgage from Scotiabank.1 The mortgage agreement required Ebner to
maintain insurance on the property and to make monthly payments into an escrow
account. As the escrow agent, Scotiabank used the deposited funds to pay various
expenses, including taxes and insurance premiums.
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
As part of the mortgage package, Ebner certified his mailing address. All written
communications between Scotiabank and Ebner regarding the mortgage were mailed to
this address. There is no evidence that any items were returned undeliverable, and Ebner
never attempted to change his mailing address.
2
Ebner arranged for an insurance policy from Real Legacy Insurance Company
(“Real Legacy”) on July 14, 2010. He made timely deposits into the mortgage escrow
account, and Scotiabank paid the policy premium. A year later, Scotiabank received an
insurance renewal certificate from Real Legacy, and it paid the insurance premium.
Scotiabank continued to use escrow funds to pay the Real Legacy policy premium in
2012 and 2013.2
Scotiabank has no record of receiving an insurance renewal certificate from Real
Legacy in 2014, and as a result, Scotiabank did not pay the policy premium that year.3
Recognizing that Ebner’s insurance might lapse, Scotiabank mailed him a notice on July
24, 2014 in the form required by RESPA. The notice informed Ebner that (1) his
insurance policy was expiring, (2) Scotiabank did not have evidence that he had obtained
new insurance, and (3) Scotiabank would purchase insurance for the property if he did
not provide proof of coverage. Scotiabank mailed a second notice to Ebner on August
25, 2014. It requested that Ebner provide proof of insurance. If he failed to do so,
Scotiabank would purchase coverage at his expense. On October 2, 2014, Scotiabank
mailed a third notice to Ebner, apprising him that it had obtained insurance on the
property. This letter included a copy of the new policy, recommended that Ebner obtain
his own hazard insurance, and advised him that the “force-placed” policy would remain
2
It is unclear from the record whether Scotiabank received renewal certificates in 2012 or
2013.
3
Ebner offers no evidence that Real Legacy sent a renewal notice to either Scotiabank or
to him personally in 2014.
3
in effect until Ebner provided proof of other coverage.
Thereafter—from 2015 through 2017—Scotiabank mailed Ebner the required
RESPA notices regarding the force-placed insurance policy.4 Ebner never provided proof
of other insurance coverage, so Scotiabank continued to renew the force-placed policy.
On September 19, 2017, Hurricane Maria struck St. Croix, causing damage to the
mortgaged property. Ebner filed a claim with Real Legacy on September 27, 2017, but
he was informed that his policy had lapsed for non-payment in July 2014. This is when
Ebner alleges he became aware, for the first time, that Scotiabank had not renewed the
Real Legacy insurance policy.5 Ebner asked Scotiabank why it had allowed the policy to
lapse. In response, Scotiabank provided Ebner with copies of its letters regarding his
expiring insurance. At the same time, Scotiabank sought to evaluate the extent of
damage to the property. Although Ebner did not submit any contractor’s estimates,
photographs, or other evidence detailing his losses, an insurance adjustor inspected the
property and documented a loss totaling $254,882.32.
4
Notices were mailed on June 1, 2015; May 5, 2016; May 30, 2016; May 31, 2017; and
July 25, 2017.
5
Ebner denies receiving any insurance related notices from Scotiabank; yet he concedes
that all the letters were sent to the correct mailing address. If there is evidence that a
communication was properly addressed, had sufficient postage, and was placed in the
U.S. mail, a presumption of regularity arises that the addressee received the item. Denial
of receipt, supported by no explanation or evidence, such as a recent change of address or
problems with receipt of mail, is not sufficient to rebut the presumption. See Santana
Gonzalez v. Att’y Gen., 506 F.3d 274, 277-280 (3d Cir. 2007); In re Cendant Corp.
Prides Litig.,
311 F.3d 298, 304-05 (3d Cir. 2002). Moreover, in September 2015, Ebner
received an escrow refund check from Scotiabank, which he promptly deposited. The
check was mailed to the same certified address as the insurance correspondence.
4
On January 30, 2018, Ebner sued Scotiabank in federal court, claiming that the
failure to renew the Real Legacy insurance policy constituted a violation of RESPA
(specifically 12 U.S.C. § 2605(g)), a breach of Scotiabank’s fiduciary duty as his escrow
agent, and a breach of contract. Scotiabank filed a motion to dismiss or, in the
alternative, a motion for summary judgment. Both parties consented to jurisdiction by a
U.S. Magistrate Judge, and oral argument occurred on December 19, 2018. The District
Court granted summary judgment to Scotiabank on January 31, 2019. Ebner timely
appealed.
On appeal, Ebner asserts that there was sufficient evidence for a reasonable jury to
find that Scotiabank had violated RESPA and its contractual and fiduciary duties. Before
we can examine each alleged violation, we must first determine whether Ebner’s claims
are time-barred.
II
The District Court exercised subject matter jurisdiction over Ebner’s claims based
on 28 U.S.C. §§ 1331, 1367(a) and 48 U.S.C. § 1612(a). We have jurisdiction under 28
U.S.C. § 1291.
Review of an order granting summary judgment is plenary: “we apply the same
standards that the District Court applied in determining whether summary judgment was
appropriate.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Thus,
viewing the evidence in the light most favorable to Ebner, summary judgment is proper if
there is no genuine issue as to any material fact such that Scotiabank is entitled to
5
judgment as a matter of law. See Fed. R. Civ. P. 56(c).
III
Claims6 made under 12 U.S.C. § 2605(g)7 have a three-year statute of limitations.8
Here, the District Court held that Ebner’s RESPA claims were time-barred because the
only plausible violation occurred in July 2014, more than three years before Ebner filed
this suit. While Ebner acknowledges that his 2014 claim may be time-barred, he argues
that Scotiabank’s failure to pay the policy premium in 2015, 2016, and 2017 constitutes
violations that occurred within the statute of limitations under the separate accrual rule.9
6
Ebner’s claims, including his arguments relating to contractual and fiduciary duties,
necessitate violations of RESPA. Consequently, if Ebner’s RESPA claims are time-
barred, his other claims are also time-barred. Even if these common law claims were not
predicated upon RESPA, they would also fail because Scotiabank’s failure to make
payments after the policy lapse neither breached the mortgage agreement nor any
fiduciary duty.
7
That section reads, “If the terms of any federally related mortgage loan require the
borrower to make payments to the servicer of the loan for deposit into an escrow account
for the purpose of assuring payment of taxes, insurance premiums, and other charges with
respect to the property, the servicer shall make payments from the escrow account . . . as
such payments become due.” 12 U.S.C. § 2605(g) (emphasis added).
8
“Any action pursuant to the provisions of section 2605 . . . of this title may be brought .
. . within 3 years in the case of a violation of section 2605 of this title . . . from the date of
the occurrence of the violation[.]” 12 U.S.C. § 2614.
9
We do not decide whether equitable tolling excuses Ebner’s failure to file his claims
within the three-year statute of limitations. Ebner’s briefs fail to raise equitable tolling.
So this potential argument is waived. See United States v. DeMichael, 461 F.3d 414, 417
(3d Cir. 2006) (“An issue is waived unless a party raises it in its opening brief, and for
those purposes a passing reference to an issue will not suffice to bring that issue before
this court.” (internal quotation marks and citations omitted)).
Ebner’s opening brief refers to the discovery rule only once in the questions
presented section. Beyond this, Ebner provides no argument as to why the discovery rule
is relevant and dispositive. This passing reference is also insufficient to adequately raise
the issue for our consideration. See DeMichael, 461 F.3d at 417.
6
We disagree.
Under the separate accrual rule, “when a defendant commits successive violations,
the statute of limitations runs separately from each violation.” Petrella v. Metro-
Goldwyn-Mayer, Inc., 572 U.S. 663, 671 (2014). This doctrine requires discrete unlawful
acts,
Blake, 927 F.3d at 706; only when each act individually violates the law does each
act trigger its own limitations period.
Petrella, 572 U.S. at 671.
Ebner argues that, based on Scotiabank’s prior experience, the bank should have
paid the Real Legacy insurance premium each July of 2014 through 2017—even though
Scotiabank received no renewal notices. If Scotiabank was obligated under § 2605(g) to
pay Ebner’s insurance premium, then its failure to do so in 2014 was a discrete violation
of RESPA. Once the policy had lapsed, however, Real Legacy would send no more
renewal notifications and Scotiabank would expect to make no further payments to Real
Legacy. There were no discrete violations of § 2605(g) in 2015, 2016, and 2017 because
there was nothing to pay.10 Therefore, Ebner must rely solely on Scotiabank’s actions in
Moreover, this Court has previously determined that the discovery rule does not
apply to RESPA. “[T]he discovery rule is not apt for RESPA claims because Congress
specifically provided that the limitations period begins to run on the date of the
occurrence of the violation. It is thus irrelevant for purposes of the statute of limitations
in RESPA when a reasonable plaintiff would have discovered her claim.” Cunningham v.
M&T Bank Corp., 814 F.3d 156, 162-63 (3d Cir. 2016) (internal quotation marks and
citations omitted).
Additionally, Ebner correctly conceded that, under Blake v. JP Morgan Chase
Bank NA, 927 F.3d 701, 706 (3d Cir. 2019), the continuing violation doctrine does not
apply to the statute of limitations that governs a violation of § 2605(g).
10
Importantly, Ebner provides no evidence that Scotiabank received policy renewal
notices from Real Legacy in 2014 through 2017.
7
2014, which lie outside the three-year statute of limitations. The separate accrual rule
does not spare Ebner’s claims from being time-barred.
IV
Ebner’s claims are time-barred as a result of RESPA’s three-year statute of
limitations. We will affirm the District Court’s order granting summary judgment to
Scotiabank.
8
