ROBERT F. KELLY, Sr. District Judge.
Presently before the Court is Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo") Motion to Dismiss the Complaint, Plaintiffs Alfred Geary and Patricia Geary's ("the Gearys") Response to Wells Fargo's Motion, and Wells Fargo's Reply in Further Support of its Motion. For the reasons noted below, we grant Wells Fargo's Motion.
In January 2013, Alfred Geary began receiving unsolicited emails from Wells Fargo, titled, "Mortgage Rate Monitor Alert," which purported to offer a special discounted, reduced mortgage refinance rate. (Compl. ¶¶ 4, 5.) In response to the emails, the Gearys commenced discussions with Brian Dooley ("Dooley"), a Wells Fargo representative, regarding refinancing their mortgage. (
On May 10, 2017, the Gearys filed a Complaint in the Pennsylvania Court of Common Pleas of Philadelphia County, which Wells Fargo removed to this Court on June 1, 2017.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint.
There is a private right of action under the UTPCPL to "[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act." 73 Pa. Cons. Stat. § 201-9.2(a) (footnote omitted). Wells Fargo argues that the UTPCPL claim must be dismissed because the Gearys did not purchase or lease any goods or services. (Def.'s Mem. Support Mot. to Dismiss at 4.) In other words, Wells Fargo claims that the Gearys do not have a private right of action under the UTPCPL because the gravamen of their Complaint is that Wells Fargo refused to complete the mortgage refinance transaction, and thus, the Gearys are not "purchasers" or "lessors" of goods or services. We agree.
Although the UTPCPL does not define the term "purchaser," the United States Court of Appeals for the Third Circuit ("Third Circuit") has recognized that "the statute unambiguously permits only persons who have purchased or leased goods or services to sue."
In response to Wells Fargo's contention, the Gearys put forth the argument that they did purchase goods or services because their existing mortgage is with Wells Fargo. (Pls.' Resp. to Def.'s Mot. to Dismiss at 2.) However, they disregard the fact that their entire Complaint is predicated on the allegation that they failed to enter into a subsequent transaction with Wells Fargo such that they would have a refinanced interest rate on their mortgage. (Compl. ¶ 9.) The initial transaction with Wells Fargo has nothing to with this matter. Rather, it is the failure to enter into a subsequent transaction that forms the basis of the Gearys' Complaint, and it is the alleged breach of that subsequent transaction that they claim entitles them to damages. (
Wells Fargo also moves to dismiss the Gearys' claim of a violation of the TILA on the basis that it is untimely under the applicable statute of limitations.
The limitations on actions in the TILA provides that "any action under this section may be brought . . . within one year from the date of the occurrence of the violation," but that "[a]ny action under this section with respect to any violation of section 1639, 1639b, or 1639c of this title may be brought . . . before the end of the 3-year period beginning on the date of the occurrence of the violation." 15 U.S.C. 1640(e) (emphasis added). As Wells Fargo notes, the Complaint does not specify which section of the TILA the Gearys are proceeding under, making it unclear whether the one-year or three-year statute of limitations applies. (Def.'s Mem. Support Mot. to Dismiss at 9.) But as Wells Fargo also points out, the lack of clarity is immaterial because the Gearys' TILA claim is untimely under both limitations set forth in § 1640(e).
The Gearys filed their Complaint on May 10, 2017, which alleges that Wells Fargo "materially breached the agreement during or about June 26, 2013[,] when it notified plaintiffs that it was reneging on the express written agreement to lock in plaintiffs' refinanced interest rate at 2.5%." (Compl. ¶ 9.) (emphasis added). Therefore, even assuming the three-year statute of limitations applies in this case, the Gearys' TILA claim is untimely on the face of the Complaint because the latest that the claim could have been filed was June 26, 2016. However, in a last ditch effort to save their TILA claim, the Gearys argue that Wells Fargo's failure to formally deny the two and a half percent loan, after already accepting it, constituted an ongoing violation such that the statute of limitations should be equitably tolled.
The doctrine of equitable tolling applies when a plaintiff has "been prevented from filing in a timely manner due to sufficiently inequitable circumstances."
As noted above, the Gearys' TILA claim is untimely unless the statute of limitations can be equitably tolled. They argue equitable tolling is warranted because Wells Fargo failed to formally deny the two and a half percent refinance loan after having already accepted it. (Pls.' Resp. to Def.'s Mot. to Dismiss at 4.) The Gearys' argument fails for several reasons. First, their Complaint completely contradicts their position that Wells Fargo never formally denied their refinance loan. The Gearys aver that Wells Fargo "materially breached the agreement during or about June 26, 2013[,] when it notified plaintiffs that it was reneging on the express written agreement." (Compl. ¶ 9.) (emphasis added). We do not see how Wells Fargo failed to formally deny the refinance loan in light of the Gearys' specific pleading to the contrary. Second, they have not pleaded the equitable tolling doctrine in their Complaint or any facts to form the basis of it. They allege no facts to show that Wells Fargo "actively misled" them or prevented them from asserting their rights in an "extraordinary" way.
We are mindful that "because the question whether a particular party is eligible for equitable tolling generally requires consideration of evidence beyond the pleadings, such tolling is not generally amenable to resolution on a Rule 12(b)(6) motion."
Even giving the Gearys the longer of the statute of limitations under § 1640(e), they had until June 26, 2016, to file a claim under the TILA.
The basis of the Gearys' Complaint is that Wells Fargo failed to refinance their mortgage in breach of an express written agreement. Because Wells Fargo never actually went through with the refinance transaction, the Gearys did not "purchase" or "lease" any goods or services. Accordingly, they have no private right of action under the UTPCPL, and Count II of their Complaint is dismissed with prejudice.
The Gearys aver that Wells Fargo notified them on June 26, 2013, that it was reneging on the alleged express written agreement to refinance their mortgage. Even assuming the three-year statute of limitation in the TILA applies, the Gearys' claim is untimely. Further, they are not eligible for equitable tolling, nor would there be utility or equity in allowing them to amend their Complaint. Accordingly, Count V of the Complaint is dismissed with prejudice.
An appropriate Order follows.
Given that the Gearys do not pass the standing threshold to assert a private right of action under the UTPCPL, we decline to add to the confusion and see no need to address the applicability of the economic loss doctrine.