Chadwick Durand Holmes v. Ocwen Financial Corporation

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 10, 2019
• Docket: 18-12939
• Status: Unpublished

Opinion

Case: 18-12939 Date Filed: 01/10/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12939 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-03979-CC

CHADWICK DURAND HOLMES,

Plaintiff - Appellant,

versus

OCWEN FINANCIAL CORPORATION,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(January 10, 2019)

Before WILSON, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-12939 Date Filed: 01/10/2019 Page: 2 of 5

Chadwick Holmes, proceeding pro se, appeals the district court’s grant of

Ocwen Financial Corporation’s motion to dismiss Holmes’s private civil complaint

under the Truth in Lending Act (TILA) and Federal Trade Commission Act (FTC

Act). First, Holmes argues that the district court erred in concluding that his TILA

claims were time-barred by the one-year statute of limitations and that his case did

not merit equitable tolling. Second, Holmes argues that the district court erred in

concluding that the FTC Act does not contain a private right of action and in

dismissing his FTC claims. After review, we affirm.

Ordinarily, we review de novo a district court’s grant of a motion to dismiss

for failure to satisfy the statute of limitations. Jackson v. Astrue, 506 F.3d 1349,

1352 (11th Cir. 2007). We also ordinarily review de novo a district court’s

determination of whether equitable tolling applies. Id. Under Eleventh Circuit

Rule 3-1, however, a party who fails to object to a magistrate judge’s findings or

recommendations in a Report and Recommendation (R&R) “waives the right to

challenge on appeal the district court’s order based on unobjected-to factual and

legal conclusions,” provided that the waiving party was given proper notice of the

time period to object and the consequences of failing to do so. 11th Cir. R. 3-1.

“In the absence of a proper objection, however, the court may review on appeal for

plain error if necessary in the interests of justice.” Id. To establish plain error, a

party must show (1) an error, (2) that is plain, and (3) that affected the party’s

2 Case: 18-12939 Date Filed: 01/10/2019 Page: 3 of 5

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.

2007). If the party satisfies these conditions, we may exercise our discretion to

recognize the error only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

Here, the magistrate judge informed Holmes of the time period for objecting

to the R&R and the consequences for failing to do so. Holmes did not object to the

R&R within the 14-day period, and the district court denied Holmes’s motion for

an extension after finding that he had failed to prove excusable neglect.

Accordingly, Holmes has waived all arguments he now raises on appeal under

Rule 3-1, and we may review his arguments only for plain error if necessary in the

interests of justice. 11th Cir. R. 3-1.

But even reviewing Holmes’s arguments for plain error, we find none. First,

the district court did not err in determining that Holmes’s TILA claims were time-

barred by the one-year statute of limitations. All TILA claims must be brought

“within one year from the date of the occurrence of the violation.” 15 U.S.C.

§ 1640(e). A TILA violation occurs when the transaction is consummated, and

nondisclosure is not a continuing violation for purposes of the statute of

limitations. See In re Smith, 737 F.2d 1549, 1552 (11th Cir. 1984). Here, it is

undisputed that the loan was consummated in 2006, and thus Holmes was barred

from bringing his TILA claims in 2017.

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Nor did the district court err in determining that Holmes’s case did not merit

equitable tolling. The general test for equitable tolling requires the party seeking

tolling to prove (1) they have diligently pursued their rights and (2) an

extraordinary circumstance has prevented them from meeting a deadline.

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en

banc), cert. denied, 137 S. Ct. 2292 (2017). Equitable tolling is an extraordinary

remedy that should be used sparingly, and the plaintiff carries the burden to show

that it is warranted. Chang v. Carnival Corp., 839 F.3d 993, 996 (11th Cir. 2016)

(per curiam). Holmes has failed to show that he exercised due diligence in filing

his TILA claims or that his case was sufficiently extraordinary to warrant equitable

tolling.

Finally, the district court did not err in dismissing Holmes’s claims under the

FTC Act. We have previously recognized that “a private right of action . . . does

not exist under the FTC Act.” Jeter v. Credit Bureau, 760 F.2d 1168, 1174 n.5

(11th Cir. 1985); accord Roberts v. Cameron-Brown Co., 556 F.2d 356, 361 n.6

(5th Cir. 1977).1 We are bound by prior panel precedent unless and until that

holding is overruled en banc or by the Supreme Court. Robinson v. Tyson Foods,

Inc., 595 F.3d 1269, 1274 (11th Cir. 2010). Holmes’s argument that the FTC Act

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all Fifth Circuit decisions rendered before close of business on September 30, 1981. 4 Case: 18-12939 Date Filed: 01/10/2019 Page: 5 of 5

provides a private right of action is foreclosed by our precedent, and Holmes’s

arguments to the contrary are without merit. Accordingly, we affirm.

AFFIRMED.