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Miller v. Todd Burt of Reliance First Capatil

United States District Court, E.D. Pennsylvania

July 25, 2018

SOLOMON MARCELLUS MILLER, Plaintiff,
v.
TODD BURT OF RELIANCE FIRST CAPATIL, et al., Defendants.

          MEMORANDUM

          GENE E.K. PRATTER, J.

         Plaintiff Solomon Marcellus Miller, proceeding pro se, brings this civil action against “Todd Burt of Reliance First Capatil, ” Rob Mahallati, Bank of America, and M&T Bank, raising claims regarding his mortgage contract. He has also filed a Motion for Leave to Proceed In Forma Pauperis. (ECF No. 1.) For the following reasons, the Court will grant Mr. Miller leave to proceed in forma pauperis and dismiss his Complaint with leave to amend.

         I. FACTS

         Mr. Miller asserts that between January 11 and 14, 2011, he decided that he “wanted to purchase a home.” (Compl. at 4.)[1] He subsequently contacted a real estate company, Philadelphiahouse.com, and spoke to a broker named Rob Mahallati. (Id.) Mr. Mahallati connected Mr. Miller “with Reliance the mortgage company.” (Id.) On January 12, 2011, Mr. Miller “received a correspondence from reliance first capital LLC loan number 306542 (Mortgage).” (Id.) He entered into a mortgage agreement with analyst Todd Burt on that date. (Id.)

         Mr. Miller claims that the “mortgage company and agent Mrs. Bonnie Lynn Mollus failed to disclose detailed information concerning [his] mortgage contract at the time of closing.” (Id.) He contends that certain pages of the contract “were not signed or notarized by any [of] the parties involved in this matter.” (Id.) Mr. Miller states that he knows “when it comes to real [e]state mortgage, the deed and title can't be apart and the documents [are recorded] tog[e]ther. This information was not told to [him].” (Id.) He alleges that because of this, “by law, [the] contract is voided.” (Id.)

         Mr. Miller “found out that [his] mortgage is now with Bank of America.” (Id.) When he went to pay the mortgage, he was told to go to M&T Bank. (Id.) He contends that he never had a written contract with M&T Bank and that his contract was assigned to M&T Bank in 2013 without his knowledge. (Id.) Mr. Miller claims that he was misled by all involved parties and that “this is FRAUD at the highest level.” (Id.)

         Mr. Miller suggests that the Defendants violated his rights under the Truth in Lending Act (“TILA) “and the Loan consumer protection Act also the home ownership, equity protection Act.” (Id.) He also asserts claims pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”). (Id. at 2.) Mr. Miller claims that he has suffered “[m]ental anguish causing [his blood pressure] to rise past [levels] that the prescribed medications are not working and emotional distress.” (Id. at 5.) As relief, he asks that the Court “[grant] the house to [him due] to fraud with the banks and all that were involved.” (Id.) He also requests $20 million in damages. (Id.)

         II. STANDARD OF REVIEW

         The Court will grant Mr. Miller leave to proceed in forma pauperis because it appears that he is not capable of paying the fees necessary to commence this action. However, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “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, 678 (2009) (quotations omitted). Conclusory statements and naked assertions will not suffice. Id. The Court may also dismiss claims based on an affirmative defense if the affirmative defense is obvious from the face of the complaint. See Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002); see also McPherson v. United States, 392 Fed.Appx. 938, 943 (3d Cir. 2010). Moreover, “if the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). Because Mr. Miller is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

         III. DISCUSSION

         A. TILA Claims

         The TILA “requires lenders to make certain disclosures to borrowers and gives borrowers a civil cause of action against creditors who violate these disclosures.” Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 500 (3d Cir. 1998). Claims under the TILA must be brought within one (1) to three (3) years of the alleged violation. See 15 U.S.C. § 1640(e).

         Here, Mr. Miller's Complaint suggests that he closed on his mortgage in 2011. Accordingly, the face of the Complaint suggests that Mr. Miller's TILA claims may be time-barred. The statute of limitations for TILA claims, however, “is not jurisdictional and is therefore subject to equitable tolling.” Ramadan, 156 F.3d at 505. Nothing in Mr. Miller's Complaint, however, plausibly suggests that the statute of limitations should be tolled due to any fraudulent concealment by the Defendants. See Williams v. EMC Mortg. Corp., No. 12-1215, 2013 WL 1874952, at *4 (E.D. Pa. May 3, 2013) (noting that “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”). Therefore, while Mr. Miller's TILA claims are subject to dismissal at this time, he will be given leave to amend in the event that he can assert plausible allegations of fraudulent concealment. See Gunn v. First Am. Fin. Corp., 549 Fed.Appx. 79, 82 (3d Cir. 2013) (per curiam) (vacating dismissal of pro se plaintiff's TILA claims to allow him to amend to include fraudulent concealment allegations).[2]

         B. ...


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