Geary v. Wells Fargo Bank, N.A.
| Decision Date | 31 July 2017 |
| Docket Number | CIVIL ACTION No. 17-2468 |
| Parties | ALFRED GEARY and PATRICIA GEARY, Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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. (Id. ¶ 6.) The Gearys claim the discussions with Dooley culminated in an agreement between Wells Fargo and themselves to refinance their existing mortgage through Wells Fargo at a "locked in" rate of two and a half percent. (Id. ¶ 7.) The Gearys aver that various writings, such as email communications, are sufficient to constitute an express agreement that was memorialized on April 26, 2013. (Id. ¶ 8.) The Gearys claim 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%." (Id. ¶ 9.)
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, 2017.1 The Gearys' Complaint contains five counts: Count I—Breach of Contract; Count II—Violation of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Cons. Stat. § 201-1 et seq.; Count III—Promissory Estoppel; Count IV—Breach of Implied-In-Fact Agreement; and Count V—Violation of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1601 et seq. (Compl.) On June 8, 2017, Wells Fargo filed the instant Motion to Dismiss seeking dismissal of Counts II and V of the Complaint.2
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "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, 679 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). In deciding a motion to dismiss under Rule 12(b)(6), courts must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant." Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir.2016) (quoting Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014)) (internal quotation marks omitted). However, courts need not "accept mere[] conclusory factual allegations or legal assertions." In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 133 (3d Cir. 2016) (citing Iqbal, 556 U.S. at 678-79). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Twombly, 550 U.S. at 555. Finally, we may consider "only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon [those] documents." Davis, 824 F.3d at 341 (quoting Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)) (internal quotation marks omitted).
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 unambiguouslypermits only persons who have purchased or leased goods or services to sue." Balderston v. Medtronic Sofamor Danek, Inc., 285 F.3d 238, 241 (3d Cir. 2002) (quoting Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)). In Wise v. Am. Gen. Life Ins. Co., the Third Circuit held that "[a] plaintiff who seeks to enter into a contract for purchase but fails to do so may not bring a claim under the UTPCPL, even where the plaintiff is prevented from making the purchase by the defendant's allegedly fraudulent conduct." 459 F.3d 443, 452 (3d Cir. 2006) (citing Lauer v. McKean Corp., 2 Pa. D & C 4th 394, 395-96 (Pa. Com. Pl. 1989)). Accordingly, a plaintiff who fails to make a purchase has no standing to bring an action under the UTPCPL. See id.
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. 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. Thus, the Gearys are not "purchasers" or "lessors" of any goods or services in this case, and they cannot maintain a claim under the UTPCPL. Further, the deficiency in their Complaint would not be cured by allowing them to amend their pleading. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). Accordingly, Count II of the Complaint is dismissed with prejudice.3
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.4 Again, we agree.
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." Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005) (quoting Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). The limitations defined in 15 U.S.C. § 1640(e) are subject to equitable tolling. Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 505 (3d Cir. 1998). There are generally three circumstances where equitable tolling may be appropriate: "(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action, (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights, or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Wise v. Mortg. Lenders Network USA, Inc., 420 F. Supp. 2d 389, 393-94 (E.D. Pa. 2006) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)). Further, a plaintiff must plead the applicability of the equitable tolling doctrine in order to invoke it. See In re Cmty. Bank of N. Va., 622 F.3d 275, 301 ...
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