Judy Fillinger v. Lerner Sampson & Rothfuss
624 F. App'x 338
6th Cir.2015Background
- In 2003 Fillinger refinanced her home; the note was sold to a Sequoia Mortgage Trust (Trust) with HSBC as trustee, a fact she did not know.
- In 2008 Cenlar (as servicer for Morgan Stanley) sent default notices on Morgan Stanley letterhead; the mortgage was assigned to Morgan Stanley in December 2008 and the note was endorsed to Morgan Stanley in July 2009.
- Lerner Sampson & Rothfuss (LSR) filed foreclosure on behalf of Morgan Stanley; the state court awarded judgment to Morgan Stanley and a sheriff’s sale occurred; Morgan Stanley later assigned its bid to the Trust in December 2012.
- In 2013 Fillinger sued HSBC, Cenlar, Morgan Stanley, and LSR under the FDCPA alleging they were debt collectors who failed to identify the creditor (15 U.S.C. § 1692g(a)(2)) and engaged in prohibited conduct (15 U.S.C. § 1692f(6)).
- Fillinger conceded her claims were facially time-barred by the FDCPA’s one-year limitations period but sought equitable tolling via fraudulent concealment, asserting defendants hid the Trust’s creditor status until the 2012 sheriff’s sale.
- Defendants moved to dismiss under Rule 12(b)(6) for failure to state a claim and as time-barred; the district court granted dismissal and the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDCPA claims are time-barred or tolled by equitable tolling for fraudulent concealment | Fillinger: fraudulent concealment hid the Trust’s creditor status so the FDCPA one-year clock did not start until sheriff’s sale in 2012 | Defendants: claims accrued in 2008–2010 and are untimely; no basis to toll | Held: Even assuming FDCPA permits equitable tolling, Fillinger failed to plead fraudulent concealment, so claims are time-barred |
| Whether fraudulent concealment was pleaded with the particularity required for fraud (Rule 9(b)) | Fillinger: defendants actively concealed the Trust’s involvement and used servicer/affiliate names to hide creditor identity | Defendants: plaintiff alleges only silence or conclusory concealment; no specific misrepresentations, scheme, intent, time, or place | Held: Dismissal affirmed — plaintiff’s allegations are conclusory and fail to meet Rule 9(b) and Pinney Dock’s requirement that concealment include a "trick or contrivance," not mere silence |
Key Cases Cited
- D'Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014) (standard of review for Rule 12(b)(6))
- Hensley Mfg. v. ProPride Inc., 579 F.3d 603 (6th Cir. 2009) (appellate courts may affirm dismissal on any ground)
- Ruth v. Unifund CCR Partners, 604 F.3d 908 (6th Cir. 2010) (general rule against extending statutes of limitations)
- Magnum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 2009) (discussing equitable tolling under the FDCPA)
- Huntsman v. Perry Local Sch. Bd. of Educ., [citation="379 F. App'x 456"] (6th Cir. 2010) (elements for fraudulent concealment tolling)
- Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445 (6th Cir. 1988) (mere silence is not fraudulent concealment; need a trick or contrivance)
- Chesbrough v. VPA, P.C., 655 F.3d 461 (6th Cir. 2011) (Rule 9(b) particularity requirements for fraud pleadings)