NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 18-1680 ____________
JACKIE STEFANOWICZ, Appellant
v.
SUNTRUST MORTGAGE; SPECIALIZED LOAN SERVICING __________________________________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-16-cv-00368) District Judge: A. Richard Caputo __________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) August 24, 2018
Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges
(Opinion filed March 29, 2019) ____________
OPINION* ____________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Jackie Stefanowicz appeals from an order of the District Court dismissing her
amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons that follow, we will affirm.
Stefanowicz obtained a loan from SunTrust Mortgage in February 2007,
memorialized by a note and secured by a mortgage against her property located at 311
New Street, Duryea, Pennsylvania. The original amount of her loan was $54,000.00. On
January 5, 2015, the mortgage was assigned from SunTrust to Specialized Loan Servicing
(“SLS”). In 2015, Stefanowicz sought and obtained a new loan modification from SLS.
On March 1, 2016, Stefanowicz filed two pro se in forma pauperis civil actions in
the United States District Court for the Middle District of Pennsylvania, involving the
origination and servicing of the mortgage loan. Between them, the two complaints
alleged violations of the Truth in Lending Act (“TILA”), the Home Ownership and
Equity Protection Act (“HOEPA”), the Real Estate Settlement Procedures Act
(“RESPA”), the Fair Housing Act (“FHA”), and the Equal Credit Opportunity Act
(“ECOA”), in connection with the 2007 mortgage and 2015 loan modification. The
complaints also asserted state law claims of predatory lending practices, intentional
infliction of emotional distress, and unjust enrichment, among others.
Stefanowicz alleged specifically that the defendants violated these statutes by
failing to cooperate in her efforts to secure a loan modification or to extend a forbearance
agreement, failing to properly credit her escrow account for expenses she paid directly,
reporting inaccurate credit information about her to national credit bureaus, and
discriminating against her because she is poor, a woman with a child and white, and is
2 neither a military veteran nor disabled. Specifically, she alleged that, in August 2014,
following a period of unemployment, she entered into a three-month forbearance
agreement with SunTrust with the understanding that, if she continued to have financial
difficulties, the forbearance period could be extended or her loan payment terms could be
modified. She alleged that when she later sought to obtain such additional relief from her
mortgage payment obligations, SunTrust failed to return her telephone calls or, when she
was able to speak with customer service representatives on the phone, failed to provide
her with the forbearance or loan modification application forms she requested. After the
mortgage loan was assigned to SLS, Stefanowicz entered into a three-month agreement
with SLS under which she made three payments of approximately $500 per month
toward her mortgage loan in September, October, and November 2015. When she
attempted to contact SLS to extend this arrangement and obtain a new monthly payment
amount, SLS failed to return her calls. Stefanowicz alleged that, on multiple occasions,
she returned home to find notices affixed to her front door advising her that someone had
been on the property and directing her to contact SLS. Each time, she called SLS and left
a voicemail message, without any response from SLS. In February 2016, when
Stefanowicz investigated refinancing with another mortgage lender, she learned that her
credit report stated that her mortgage was approximately $1,000 past due, an allegedly
inaccurate figure.
The two civil actions were consolidated pursuant to Federal Rule of Civil
Procedure 42(a)(2). The defendants then moved to dismiss the consolidated action
pursuant to Federal Rule of Civil Procedure 12(b)(6). In the course of assessing the
3 complaints for possible dismissal under that rule and 28 U.S.C. § 1915(e)(2), the
Magistrate Judge examined the publicly recorded mortgage and assignment of mortgage,
and the record from an earlier and unsuccessful in forma pauperis civil action filed by
Stefanowicz against SunTrust, see Stefanowicz v. SunTrust Mortgage, D.C. Civ. No. 10-
cv-01321, in which she had made similar allegations. We note that Stefanowicz’s 2010
civil action, which was filed against SunTrust only, was dismissed for lack of federal
subject matter jurisdiction. Among other things, Stefanowicz could not satisfy the
$75,000 amount-in-controversy requirement for diversity jurisdiction, see 28 U.S.C. §
1332(a).
The Magistrate Judge recommended in his Report and Recommendation that
Stefanowicz’s 2016 complaint raising TILA and HOEPA claims, which concerned the
adequacy of disclosures made in connection with the origination of her mortgage in
February 2007, be dismissed as barred by, in pertinent part, the applicable statutes of
limitation and repose. The TILA and the HOAPA, which is an amendment to the TILA,
have a one-year statute of limitations that begins to run from the date the loan closed, 15
U.S.C. § 1640(e). Claims for rescission under the TILA and the HOEPA are subject to a
three-year statute of repose. Id. at § 1635(f). Stefanowicz’s 2016 complaint was thus
plainly time-barred. The Magistrate Judge also recommended dismissing as time-barred
Stefanowicz’s 2016 complaint raising RESPA, ECOA, and FHA claims arising out of the
2007 origination of the mortgage loan, noting that the RESPA has a three-year statute of
limitations, 12 U.S.C. § 2614; the ECOA has a five-year statute of limitations, 15 U.S.C.
§ 1691e(f); and the FHA has a two-year statute of limitations, 42 U.S.C. § 3613(a)(1)(A).
4 The Magistrate Judge further recommended that Stefanowicz’s timely RESPA
claims, which concerned a failure by SunTrust and SLS to respond to her telephone calls
or mail her certain requested forms, and failure to properly credit her escrow account, be
dismissed. The Magistrate Judge reasoned in the main that RESPA requires a showing of
actual damages and, in addition, only requires a loan servicer to respond to a “qualified
written request” relating to the dispute regarding the borrower’s payments. Stefanowicz
had made no such “qualified written request,” 12 U.S.C. § 2605(e)(1)(B), and had not
alleged actual damages, id. at § 2605(f); moreover, the 60-day moratorium under §
2605(e)(3) against placing derogatory information on the borrower’s credit report is only
triggered by a “qualified written request.” The Magistrate Judge further determined that
Stefanowicz’s RESPA claim with respect to her allegation that the defendants failed to
properly credit her escrow account fell outside the scope of § 2605(g) because she did not
allege that they failed to timely pay any expenses from her escrow account and/or failed
to timely refund any remaining balance after she paid off her loan.
The Magistrate Judge recommended that Stefanowicz’s timely ECOA and FHA
claims be dismissed because her allegations of discrimination were conclusory.
Moreover, since she was in default at the time of the alleged discrimination, the
defendants’ failure to allow her to modify her loan could not constitute a prohibited
“adverse action” under the ECOA, see 15 U.S.C. § 1691(d)(6) (“adverse action” … “does
not include a refusal to extend additional credit under an existing credit arrangement
where the applicant is delinquent or otherwise in default….”). The Magistrate Judge
recommended that Stefanowicz’s FHA claim be dismissed because, again, her allegations
5 of discrimination were conclusory and she failed to allege facts from which a reasonable
inference could be drawn that she was denied a loan modification because of her
membership in a protected class. Nevertheless, the Magistrate Judge recommended that
Stefanowicz be granted leave to amend with respect to her timely RESPA, ECOA, and
FHA claims arising out of her attempts to obtain a loan modification or an extended
forbearance agreement in 2014 and/or 2015.
In an order entered on March 22, 2017, the District Court adopted the Magistrate
Judge’s Report and Recommendation, dismissing Stefanowicz’s untimely TILA and
HOEPA claims with prejudice, dismissing her untimely RESPA, ECOA, and FHA claims
arising out of the 2007 origination of her mortgage loan with prejudice, and dismissing
her timely RESPA, ECOA, and FHA claims arising out of her attempts to obtain a loan
modification or an extended forbearance in 2014 or 2015 without prejudice. Stefanowicz
was granted leave to amend as to the latter claims. The District Court further declined to
exercise supplemental jurisdiction over Stefanowicz’s state law claims.
Stefanowicz then filed an amended complaint on April 7, 2017, in which she
attempted to cure only the deficiencies in her RESPA and ECOA claims arising out of
her attempts to obtain a loan modification or an extended forbearance in 2014 or 2015.
Stefanowicz alleged that she paid down the principal on her mortgage note to
approximately $47,000.00 before the loan was sold to SLS. Following a loan
modification in January 2017, the principal balance of her loan was $60,046.26. It also
took SLS seven months to process the loan modification, which Stefanowicz alleged was
“deceptive.” Then, beginning in February, 2017, when she attempted to make her
6 monthly payments, she was charged extra fees. She alleged further that an additional
$200.00, which she sought to have applied toward the principal, was applied by SLS to
other charges and the defendants did not produce statements “showing the extra fees.”
Her credit report, she alleged, reflected a 120-day delinquency for three months,
notwithstanding that she made the required payments for those three months.
The defendants moved to dismiss the amended complaint. SunTrust argued that
Stefanowicz had alleged the same facts that the Magistrate Judge had already determined
did not support any claim, and that the only new actions alleged by Stefanowicz in her
amended complaint concerned actions taken by SLS in 2017. SLS argued that, once
again, Stefanowicz had failed to allege sufficient facts to show a violation of the ECOA
or that SLS’s duties under RESPA were triggered. Stefanowicz submitted a written
response in opposition to the defendants’ motions.
The Magistrate Judge newly assigned to the case submitted a Report and
Recommendation, in which he concluded that Stefanowicz’s amended complaint should
be dismissed. The Magistrate Judge observed that, instead of correcting the deficiencies
identified by the District Court in dismissing her timely ECOA and RESPA claims
without prejudice, Stefanowicz had in a cursory fashion alleged a new array of loan
servicing complaints concerning events that occurred in 2017 that were unrelated to the
matters set forth in her original complaints. The Magistrate Judge thus recommended
that the amended complaint be dismissed for failure to state a claim upon which relief
may be granted, reasoning in pertinent part that SunTrust assigned the mortgage in 2015
and thus could not be liable for any loan servicing complaints that arose after that date;
7 and that Stefanowicz’s RESPA and ECOA claims against SLS were deficient as a matter
of law. In an order entered on March 19, 2018, the District Court adopted the Report and
Recommendation, granted the defendants’ motions, and dismissed Stefanowicz’s
amended complaint.
Stefanowicz appeals pro se. We have jurisdiction under 28 U.S.C. § 1291. We
may affirm the judgment of the District Court on any basis which finds support in the
record. See Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980). In her pro se
brief, Stefanowicz contends that the District Court ignored her supporting evidence of
discrimination and predatory lending practices, and ignored her request for credit repair.
Appellant’s Informal Brief, at 1. She contends, for the first time, that the District Court
should have granted her relief under the Fair Credit Reporting Act (“FRCA”), 15 U.S.C.
§ 1681, id. at 5. Stefanowicz also submitted an addendum to her pro se brief, in which
she notes recent correspondence from SLS.
We will affirm. Section 1915(e)(2)(B) of title 28 directs district courts to sua
sponte dismiss any in forma pauperis complaint claim that is frivolous, malicious, fails to
state a claim on which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Here, the District Court
determined that the complaint and amended complaint could not proceed under §
1915(2)(B)(ii) and Rule 12(b)(6). A Rule 12(b)(6) motion tests the sufficiency of the
factual allegations contained in the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183
(3d Cir. 1993). A motion to dismiss based on Rule 12(b)(6) should be granted if the
plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on its
8 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although factual
averments must be accepted as true, legal conclusions are disregarded. See Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
The TILA seeks to protect credit consumers by mandating meaningful disclosure
of credit terms. See Rossman v. Fleet Bank (R.I.) Nat’l Ass’n, 280 F.3d 384, 390-91 (3d
Cir. 2002). The HOEPA makes mortgage lenders liable for extending credit “without
regard to the consumers’ repayment ability, including the consumers’ current and
expected income, current obligations, and employment.” See In re Laudani: Laudani v.
Tribeca Lending Corp., 401 B.R. 9, 32 (Bankr. D. Mass. 2009) (quoting 15 U.S.C. §
1639(h)). The RESPA requires lenders to refrain from collecting unearned closing fees
and kickbacks; compels lenders to disclose to borrowers the fact that servicing on their
loans may be transferred; and requires loan servicers to respond in a timely fashion to
“Qualified Written Requests” from borrowers seeking information regarding the status of
home loans. 12 U.S.C. §§ 2605, 2607. The ECOA bars discrimination on the basis of
race, color, religion, national origin, sex, marital status, age, or the fact that the
applicant’s income is derived from public assistance. See National State Bank v. Long,
630 F.2d 981, 984 (3d Cir. 1980) (citing 15 U.S.C. § 1691(a)(1), (2)). The FHA prohibits
any person or entity “whose business includes engaging in residential real estate-related
transactions to discriminate against any person in making available such a transaction, or
in the terms or conditions of such a transaction, because of race, color, religion, sex,
handicap, familial status, or national origin.” 42 U.S.C. § 3605.
We agree with the District Court that dismissal of Stefanowicz’s 2016 original
9 complaints was proper to the extent that they raised claims under the TILA, HOEPA,
RESPA, ECOA, and FHA arising out of the 2007 origination of her mortgage loan. The
2016 original complaints are barred by the applicable statutes of limitation and repose,
for the reasons given by the Magistrate Judge. A statute of limitations defense may be
raised in a motion to dismiss where the defense is apparent on the complaint’s face. See
Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). The District Court also properly
dismissed the FHA claim stated in Stefanowicz’s original complaint. Again, as explained
by the Magistrate Judge, Stefanowicz did not allege sufficient facts to support a claim of
discrimination under the FHA. She alleged that she is a white female, a parent with a
minor child, and that she is poor, but she failed to allege facts from which a reasonable
inference could be drawn that she was denied a loan modification because of her
membership in a protected class.
Similarly with respect to Stefanowicz’s ECOA claim in her amended complaint,
there was a failure to allege any factual matter or plausible basis to establish an ECOA
claim. To establish a prima facie case under the ECOA, a plaintiff must show that (1) she
was a member of a protected class; (2) she applied for credit from the defendant; (3) she
was qualified for the credit; and (4) despite qualifying, she was denied credit. See
Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 268 n.5 (3d Cir. 2010). A
plaintiff may support an assertion of discrimination by showing that the defendant “has
treated more favorably similarly situated persons not within the protected class.” Jones v.
School Dist. of Philadelphia, 198 F.3d 403, 413 (3d Cir. 1999). In her amended
complaint, Stefanowicz asserted only a conclusory statement that “treatment is disparate
10 and the impact is disparate.” This is insufficient to show that other similarly situated
persons who are not members of a protected class were treated more favorably when they
applied for a loan modification. Furthermore, in her original complaint Stefanowicz did
not plausibly allege that the defendants declined to extend her credit for a discriminatory
reason. We note, for example, that the ECOA prohibits discrimination against applicants
who receive income from a public assistance program, 15 U.S.C. § 1691(a)(2), but
Stefanowicz did not allege that she received such public assistance income; she alleged
only that her financial condition at the relevant time was that of “poverty.” Thus, the
District Court’s dismissal of the ECOA claim in the amended complaint for failure to
state a claim was proper.
The District Court also properly dismissed Stefanowicz’s RESPA claim in her
amended complaint for failure to state a claim. The RESPA permits individual borrowers
to sue loan servicers for damages when they fail to comply with any of their RESPA
duties, in pertinent part, in “an amount equal to the sum of -- (A) any actual damages to
the borrower as a result of the failure….” 12 U.S.C. § 2605(f). Even assuming that
somewhere along the way Stefanowicz complied with the RESPA’s “qualified written
request” requirement, at no time has she alleged sufficient facts to show that she suffered
actual damages as a result of the defendants’ alleged failures. Stefanowicz’s amended
complaint simply recited the following concerning her RESPA claim: “With respect to
RESPA not sending or providing information. In addition, not providing information
when asked. Not producing statements showing the extra fees.” Because she failed to
assert facts that meet the essential actual damages element of a claim under the RESPA
11 and because the District Court provided her with an opportunity to correct the
deficiencies in her RESPA claim, the Court properly ultimately dismissed it with
prejudice.
Turning to her final argument, even though we have consistently held that we will
not consider issues that are raised for the first time on appeal, see Harris v. City of
Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994), it is apparent that Stefanowicz cannot state
a claim under the FCRA, 15 U.S.C.§ 1681s-2(b). Under the FCRA, consumers notify
consumer credit reporting agencies about inaccuracies in their credit reports. The duties
imposed under § 1681s-2(b)(1)(A)-(E) are triggered only after a furnisher of information
receives notice from a consumer reporting agency about a dispute. See SimmsParris v.
Countrywide Financial Corp., 652 F.3d 355, 358 (3d Cir. 2011) (notice “must be given
by a credit reporting agency, and cannot come directly from the consumer”). A consumer
may certainly notify a furnisher/creditor directly about her dispute, as Stefanowicz has
done, but there is no private cause of action under § 1681s-2(b) for a furnisher’s failure to
properly investigate such a dispute.
For the foregoing reasons, we will affirm the orders of the District Court granting
the defendants’ motions and dismissing the original and amended complaints.1
1 In her pro se brief, Stefanowicz asks us for this relief: “Ask Specialized Loan Servicing to substantiate that if they obtain the mortgage from SunTrust Mortgage around $47000.00+ (did not pay the homeowner’s policy which was escrowed); how did the loan modification offer amount to $61000.00+.” Appellant’s Pro Se Brief, at 6. Because we are upholding the decision of the District Court, we cannot provide the requested relief, but we note that on May 17, 2018, SLS wrote to Stefanowicz that it may not have previously provided her with a copy of three valuations from 2015 and 2016 that were 12 used in reviewing her account for loss mitigation assistance. She was invited to log on to their website to view and obtain copies of these valuations. 13