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Roche v. Sparkle City Realty

June 12, 2009


The opinion of the court was delivered by: Kauffman, J.


Now before the Court is Defendant EverHome Mortgage Company's Motion to Dismiss Plaintiffs' First Amended Complaint (the "Motion"). For the reasons discussed below, the Motion will be granted.


This action arises from the February 2, 2006 sale of a residence located at 850 E. Schiller Street in Philadelphia, Pennsylvania. According to the First Amended Complaint, Plaintiffs Sylvia Roche and Antonio Martin ("Plaintiffs") approached Defendant Nick Huynh ("Huynh") d/b/a Sparkle City Realty, Inc. (collectively, "Sparkle City") in November 2005 to inquire about purchasing a home and to seek a real estate broker. First Am. Compl. ¶ 13-1.*fn1 Thereafter, Sparkle City, acting as Plaintiffs' realtor, showed them numerous homes, including a home that it was refurbishing. Id. ¶ 14. When Plaintiffs expressed interest, Sparkle City "required" them to provide payment toward a home inspection, which was thereafter completed without their knowledge. Id. ¶¶ 16-18. Sparkle City then directed Plaintiffs to apply for a mortgage, which was later approved by Defendant Flagstar Bancorp d/b/a Flagstar Bank ("Flagstar"), Plaintiffs' mortgage lender. Id. ¶¶ 19-20.

At the February 2, 2006 closing of the property, Huynh directed Plaintiffs "to execute all closing documents without explanation or review" and claimed that "the premises was in completed, good, and habitable condition." Id. ¶ 22. Relying on Huynh's misrepresentations, Plaintiffs executed the mortgage and other closing documents. Id. ¶ 23. After the closing, "Plaintiffs were for the first time since [the] initial showing able to view their new home." Id. ¶ 24.

When Plaintiffs moved into the residence, they discovered various material defects, including a leaking roof, faulty plumbing, and a deteriorating kitchen ceiling. Id. ¶¶ 25-26. In August 2006, Plaintiffs attempted to speak with Huynh "following Plaintiffs' son's bedroom ceiling collapsing on him" but were unable to do so. Id. ¶ 29. Sparkle City hired workmen to make repairs to the ceiling in November 2007, but they failed to make all necessary repairs. Id. ¶ 30. Plaintiffs eventually defaulted on the loan, and after the default, Flagstar sold Plaintiffs' loan to Defendant EverHome Mortgage Co. ("EverHome"). Id. ¶¶ 31-32.

Plaintiffs allege that Defendants "misrepresented and/or omitted material facts" about the loan, including the fact that its fees were customary and that it had a fixed rate. Id. ¶ 41.*fn2 Plaintiffs' First Amended Complaint contains a total of ten counts: (1) violations of the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq.; (2) violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2602 et seq.; (3) violations of the Pennsylvania Credit Services Act ("CSA"), 73 Pa. Cons. Stat. §§ 2182 et seq.; (4) violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Cons. Stat. §§ 201-1 et seq.; (5) a common law claim for fraud and/or fraudulent misrepresentation; (6) a common law claim for breach of contract; (7) a common law claim for negligence and/or negligent misrepresentation; (8) a common law claim for breach of fiduciary duty; and (9) a common law claim for "conspiracy, acting in concert, and aiding and abetting."*fn3

EverHome filed the instant Motion on September 4, 2008. In response, Plaintiffs have withdrawn all common law claims against EverHome. See Pls.' Resp. 11 ("For strategy re efficiency [sic], Plaintiffs concede withdrawal of their common law causes of action against [EverHome]."). Accordingly, the three remaining claims against EverHome are the TILA,*fn4 RESPA, and UTPCPL claims.


When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court is required "to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). However, the Court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). In deciding a 12(b)(6) motion, "a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). "To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (citations omitted in original) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)).


A. The TILA Claim

EverHome contends that Plaintiffs' TILA claim is barred by the one-year statute of limitations for claims seeking monetary damages. 15 U.S.C. § 1640(e); see also Smith v. Fid. Consumer Disc. Co., 898 F.2d 896, 903 (3d Cir. 1990).*fn5 The one-year limitations period begins the date the loan transaction is consummated. See, e.g., Bartholomew v. Northampton Nat'l Bank, 584 F.2d 1288, 1296 (3d Cir. 1978) ("The Truth-In-Lending Act requires that creditors make full disclosure prior to the extension of credit. Thus, the statute begins to run on the date that a contract to sell land is executed."); see also Oldroyd v. Assocs. Consumer Disc. Co., 863 F. Supp. 237, 240-41 (E.D. Pa. 1994). In the instant case, the loan documents were executed on February 2, 2006. First Am. Compl. ¶ 22. Plaintiffs did not file their Complaint until May 30, 2008, more than two years after the date the statute of limitations began to run. Accordingly, the TILA claim is time-barred.

Plaintiffs, however, contend that their TILA claim encompasses a claim for recoupment, which is not subject to a statute of limitations.*fn6 Recoupment, however, is a defense to an independent cause of action, not a freestanding affirmative claim for relief. See Bull v. United States, 295 U.S. 247, 262 (1935) ("[R]ecoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded."); Algrant v. Evergreen Valley Nurseries Ltd. P'ship, 126 F.3d 178, 184 (3d Cir. 1997) ("Recoupment . . . is a defensive claim which can only be asserted in response to an independent action instituted by another party; recoupment does not permit the party asserting it to present otherwise time-barred claims simply by creative pleading in an independent proceeding brought by it."). Indeed, TILA itself explains that recoupment may be asserted after the limitations period only when used as a defense to a debt collection action. See 15 U.S.C. ยง 1640(e) (explaining that the one-year statute of limitations "does not bar a person from ...

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