Gregory Makozy v. Westcor Land Title
21-10519
| 11th Cir. | Jul 9, 2021Background:
- Plaintiff Gregory Makozy (pro se) sued Armour and Westcor alleging RESPA violations and negligence arising from two refinance transactions in September 2015 and August 2016.
- Makozy filed his initial complaint in September 2020 and later a second amended complaint; the district court dismissed the second amended complaint with prejudice as time-barred.
- Applicable statutes of limitations alleged: RESPA (one- or three-year limits depending on claim), negligence (four years under Florida law; two years under Pennsylvania law).
- Makozy contended on appeal that equitable tolling/excusable neglect (including a 30-month incarceration ending January 2019) excused his late filing.
- The district court noted Makozy’s equitable-tolling contention but found he failed to set forth factual circumstances to support tolling; the Eleventh Circuit held Makozy waived the tolling argument by not properly presenting supporting facts below and affirmed the dismissal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Makozy’s RESPA and negligence claims are time‑barred | Claims arise from 2015–2016 refinances; late filing was due to excusable neglect (tolling needed) | Claims are beyond applicable statutes of limitations | Claims are time‑barred on the face of the complaint; dismissal proper |
| Whether equitable tolling applies (incarceration/excusable neglect) | Makozy says 30‑month incarceration supports tolling | Makozy did not present facts to district court to show tolling; therefore defendants oppose tolling | Issue waived on appeal for failure to present facts below; no entitlement to tolling shown |
| Whether appellate court may consider fact‑bound tolling arguments not developed below | District court lacked full facts, so appellate review should consider tolling | Appellate court should not consider fact‑bound issues the district court never had a chance to examine | Appellate court refuses to consider new fact‑bound tolling evidence/arguments; affirms dismissal |
Key Cases Cited
- Berman v. Blount Parrish & Co., Inc., 525 F.3d 1057 (11th Cir. 2008) (statute-of-limitations application reviewed de novo)
- La Grasta v. First Union Sec., Inc., 358 F.3d 840 (11th Cir. 2004) (dismissal appropriate when complaint is facially time‑barred)
- Stamper v. Duval Cnty. Sch. Bd., 863 F.3d 1336 (11th Cir. 2017) (equitable tolling requires extraordinary, unavoidable circumstances despite diligence)
- Justice v. United States, 6 F.3d 1474 (11th Cir. 1993) (equitable tolling is an extraordinary remedy to be granted sparingly)
- McGroarty v. Swearingen, 977 F.3d 1302 (11th Cir. 2020) (arguments not raised below are generally waived on appeal)
- Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004) (appellate courts are hesitant to decide fact‑bound issues the district court did not examine)