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Ruggiero v. Bank

June 17, 2009

JOANNE RUGGIERO, ET AL. PLAINTIFFS,
v.
K BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is the Motion of Defendants K Bank ("K Bank") and K Capital Corporation ("K Capital") to Dismiss Plaintiffs' Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons set forth below, the Motion is granted.

I. FACTS

Plaintiff Joanne Ruggiero ("Ruggiero") is an adult individual who resides at 39687 Seaside Avenue, Bethany Beach, Delaware. Plaintiff Holly Setzler ("Setzler") is an adult individual who resides at 21 Red Rock Lane, Chester Springs, Pennsylvania. Ruggiero is the wife of Joseph J. Ruggiero, and Setzler is the wife of Joseph L. Ippolito. The Plaintiffs' husbands, Joseph Ruggiero and Joseph Ippolito, along with a third individual, Alfio J. Tropea, are the indirect owners of Ruggiero Development Group, LLC, a Pennsylvania limited liability company in the business of developing land upon which to build and sell residential homes. Ruggiero Development Group, LLC is the sole member of The Retreat at Love Creek, LLC, a Pennsylvania limited liability company. Joseph Ruggiero, Joseph Ippolito, and Alfio Tropea are the sole members of The Retreat at Love Creek, LLC.

In 2003, Ruggiero Development Group, LLC entered into an agreement to purchase parcels of land in the state of Delaware with the intention of developing the land and constructing residential homes on it. The agreement of sale was later transferred to The Retreat at Love Creek, LLC. The Retreat at Love Creek, LLC then applied to K Bank and K Capital for financing to acquire, develop, and construct homes on the property.

On December 3, 2004, K Capital extended a loan in the amount of $630,000.00 to The Retreat at Love Creek, LLC, requiring that Ruggiero and Setzler guarantee the loan and remain personally liable for it. This loan is evidenced by a promissory note dated December 3, 2004. On or about the same day, K Bank extended a loan in the amount of $5,600,000.00 to The Retreat at Love Creek, LLC, and again required Ruggiero and Setzler to join and remain personally liable for the loan. This loan is also evidenced by a promissory note dated December 3, 2004.

On April 6, 2009, Plaintiffs filed a two-count Complaint against K Bank and K Capital. The Complaint alleges that the banks violated the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691,*fn1 along with Regulation B set forth by the Board of Governors of the Federal Reserve System to implement the ECOA, 12 C.F.R. § 202.1 ("Reg B").*fn2 Plaintiffs allege that the Defendants violated the ECOA by requiring them to sign guaranties for their husbands' loans, despite the fact that their husbands were credit-worthy on their own. Count I seeks monetary damages for violations of the Act. Count II seeks declaratory relief and an injunction enjoining the banks from taking action to enforce the guarantees against the Plaintiffs. On May 20, 2009, K Bank and K Capital filed a Motion to Dismiss Plaintiffs' Complaint on the grounds that the statute of limitations had run on Plaintiffs' claims, and the Complaint was untimely. On June 2, 2009, Plaintiffs filed their Response to the Motion to Dismiss, arguing that the statute of limitations defense cannot be raised in a Rule 12(b)(6) motion, that Plaintiffs' cause of action is not time-barred because the claim did not accrue until Plaintiffs learned of the injury at some later point in time, and that the statute of limitations was tolled because Defendants misled Plaintiffs with respect to their rights. We address these contentions below.

II. STANDARD OF REVIEW

In considering a motion to dismiss, all allegations in the complaint must be accepted as true and viewed in the light most favorable to the non-moving party. Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989) (citations omitted). Exhibits which are attached to the complaint and upon which one or more claims are based can be considered in deciding a motion to dismiss pursuant to Rule 12(b)(6). See Rossman v. Fleet Bank (R.I.) Nat'l Assoc., 280 F.3d 384, 388 n.4 (3d Cir. 2002). A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (citations omitted).

III. DISCUSSION

Plaintiffs first contend that the Motion to Dismiss should be denied on the grounds that the statute of limitations defense cannot be raised by a Rule 12(b)(6) motion, but instead, must be raised in the answer to the complaint. Under Federal Rule of Civil Procedure 8(c), affirmative defenses, such as the statute of limitations defense, should be raised in the answer. Rule 8(c) provides:

Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including . . . statute of limitations.

Fed. R. Civ. P. 8(c). While Rule 12(b)(6) allows some defenses to be presented by motion, the statute of limitations is not one such defense. See Fed. R. Civ. P. 12(b)(6). The purpose of requiring a defendant to raise affirmative defenses in the answer is to provide the plaintiff with the earliest possible notice that the defendant intends to raise the defense, and to give the plaintiff the opportunity to rebut it. Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971)). Nonetheless, "the law of this circuit (the so-called 'Third-Circuit Rule') permits a limitations defense to be raised by a Rule 12(b)(6) motion, only where 'the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Robinson, 313 F.3d at 135 (citing Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975); Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)). Therefore, a statute of limitations defense does not necessarily have to be raised in the defendant's answer. Robinson, 313 F.3d at 135. Rather, consistent with the purpose of Rule 8(c), it must be raised at the earliest practicable moment. Id. at 135-37.

In the instant matter, K Bank and K Capital responded to the filing of Plaintiffs' Complaint by filing a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6). It was, therefore, appropriate for K Bank and K Capital to raise the limitations defense in its Rule 12(b)(6) Motion, as this was the earliest possible opportunity the Defendants had in which to advance the argument. See id.; Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987); Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1427 (D.C. Cir. 1986). Thus, by raising the defense in the ...


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