James v. Acre Mortg. & Fin., Inc., 306 F. Supp. 3d 791

Background

Genuine Title operated a title/settlement service and later went bankrupt; plaintiffs' counsel (Smith, Gildea & Schmidt) obtained Genuine Title's records and by June 2015 had data identifying buyers and lenders.
Fangman litigation (related RESPA, state law, and consumer-protection claims) and subsequent CFPB/Maryland AG enforcement actions publicly exposed alleged kickback schemes involving Genuine Title and various lenders beginning in 2015.
Plaintiff James closed a loan with Acre on December 21, 2012 and filed a class RESPA suit on June 23, 2017 alleging undisclosed kickbacks ("Referring Cash" and "Free Marketing Materials") paid to Acre employees via third parties.
RESPA has a one-year statute of limitations; James concedes her claim is outside that period and seeks equitable tolling.
Defendant moved to dismiss under Rule 12(b)(6), arguing equitable tolling is unavailable because public filings and media put plaintiffs on notice and plaintiff failed to satisfy Menominee's tolling requirements.
The court treated press releases, public filings, and news reports as judicially noticeable for deciding the tolling question and held equitable tolling was not warranted for James.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether equitable tolling saves an otherwise time-barred RESPA claim	James: concealment (fraudulent nondisclosure on HUD‑1s and lenders' failure to notify customers) prevented discovery; she was contacted by counsel only in 2017	Acre: public court filings, CFPB/AG enforcement and widespread media made claim discoverable by 2015; counsel's prior access undermines tolling	Denied — equitable tolling not available; motion to dismiss granted
Whether plaintiff's diligence (Menominee prong) is satisfied (including role of plaintiff's counsel)	James: she cannot be charged with pre‑retention counsel's knowledge; she lacked notice until counsel contacted her	Acre: a reasonable person would have discovered the claim given public enforcement actions and publicity; counsel's investigation shows the claim was discoverable earlier	Court did not decide diligence after finding extraordinary‑circumstances prong failed
Whether "extraordinary circumstances" existed to prevent discovery despite due diligence	James: ongoing nondisclosure and affirmative misrepresentations on HUD‑1s rendered critical info undiscoverable until counsel contacted her	Acre: earlier public enforcement, filings, and press made critical info discoverable; tolling would swallow RESPA's statute and improperly deputize lenders to notify customers	Held: plaintiff failed to show extraordinary circumstances; public disclosures made claim discoverable by May 2015 at latest
Whether judicial notice of public filings and news may be considered on 12(b)(6)	James: some press exhibits are hearsay for truth; but admits court records are notice‑worthy	Acre: court may judicially notice filings, press releases, and news to establish public notice dates	Held: court took judicial notice of filings and news; consideration did not convert the motion to summary judgment

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for Rule 12(b)(6))
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (formulaic recitations insufficient to plead plausibly)
Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750 (2016) (equitable tolling requires diligence and extraordinary circumstances)
Holland v. Florida, 560 U.S. 631 (2010) (diligence standard for equitable tolling)
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990) (equitable tolling is an extraordinary remedy applied sparingly)
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (materials subject to judicial notice on Rule 12(b)(6))
Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc., 71 F.3d 119 (4th Cir. 1995) (fraudulent concealment may justify tolling)
Grant v. Shapiro & Burson, LLP, 871 F. Supp. 2d 462 (D. Md. 2012) (applying fraudulent concealment test to equitable tolling)