The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING COUNTRYWIDE'S MOTION TO DISMISS
Defendant Countrywide Home Loans, FSB, now known as Bank of America, ("Countrywide") filed the instant Motion to Dismiss Plaintiff's First Amended Complaint Filed November 23, 2011 ("Motion") on December 14, 2011.*fn1 Plaintiff Trinidad C. Enriquez ("Plaintiff") filed her Memorandum in Opposition on January 23, 2012. Countrywide did not file a reply. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Countrywide's Motion is HEREBY DENIED for the reasons set forth below.
Plaintiff filed her original Complaint on July 16, 2010 against Countrywide and Defendant Trinity Financial, LLC ("Trinity"),*fn2 along with various Doe Defendants (collectively "Defendants"). The factual allegations in this case are set forth in this Court's Order Granting in Part and Denying in Part Defendant Countrywide Home Loans, FSB's Motion to Dismiss, or in the Alternative, for a More Definite Statement, filed on August 31, 2011 ("8/31/11 Order"). 2011 WL 3861402.
Plaintiff's original Complaint asserted the following claims: Count I - violation of the Home Ownership Equity Protection Act, 15 U.S.C. § 1639, et seq. ("HOEPA"); Count II -violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. ("RESPA"); Count III - violation of the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"); Count IV - violation of the Fair Credit Reporting Act ("FCRA"), in violation of 15 U.S.C. § 1681 et seq.; Count V -fraudulent misrepresentation; Count VI - breach of fiduciary duty; Count VII - civil conspiracy; Count VIII - a civil claim for a Racketeer Influenced and Corrupt Organizations Act ("RICO") violation, under 18 U.S.C. § 1962(c); Count IX - complaint to quiet title; Count X - mistake; Count XI - unconscionability; Count XII -unfair and deceptive acts or practices ("UDAPs"), in violation of Haw. Rev. Stat. § 480-2 and § 481A-3; Count XIII -failure to act in good faith; Count XIV - recoupment; Count XV -negligent and/or intentional infliction of emotional distress ("NIED/IIED"); Count XVI - violation of the Gramm-Leach-Bliley Act ("GLBA"), in violation of 15 U.S.C. § 6801, et seq.; Count XVII - violation of the right to privacy under the Hawai`i Constitution; Count XVIII - violation of Regulation B regarding the Consumer Credit Protection Act; and Count XIX - violations of the Credit Repair Organizations Act ("CROA"), 15 U.S.C. § 1679a, et seq.
Countrywide filed its Motion to Dismiss, or in the Alternative, for a More Definite Statement ("Motion to Dismiss") on March 28, 2011, pursuant to Federal Rule of Civil Procedure 12(b)(6) alleging that each count of the Complaint failed to state a claim upon which relief can be granted.
The Court granted Countrywide's Motion to Dismiss with prejudice on: the portion of Count IV alleging a violation of 15 U.S.C. § 1681s-2(a); the portion of Count XII (UDAP) based on alleged TILA and HOEPA violations; Count XIV (recoupment); Count XVI (GLBA); Count XVII; the portion of Count XVIII (ECOA) based on the failure to provide a copy of the loan application; and Count XIX (CROA). The Court dismissed the following counts without prejudice: Count I (HOEPA); Count II (RESPA); the portion of Count III asserting a TILA damages claims; the portion of Count IV (FCRA) alleging a violation of 15 U.S.C. § 1681s-2(b); Count V (fraudulent misrepresentation); Count VI (breach of fiduciary duty); Count VII (civil conspiracy); Count VIII (civil RICO claim); Count IX (quiet title); Count X (mistake); Count XI (unconscionability); Count XII (UDAP), except to the extent that the claim is based on alleged TILA and HOEPA violations; Count XIII (failure to act in good faith); Count XV (IIED & NIED); and the portion of Count XVIII (ECOA) based on the failure to provide a copy of the appraisal. The Court denied Countrywide's Motion to Dismiss as to Plaintiff's TILA rescission claim in Count III. 8/31/11 Order, 2011 WL 3861402, at *28.
The Court gave Plaintiff until September 22, 2011 to file a motion seeking leave to file a First Amended Complaint, cautioning Plaintiff that the failure to timely file a motion seeking leave to file an attached First Amended Complaint would result in the automatic dismissal of all of Plaintiff's claims, with the exception of the TILA rescission claim, with prejudice. Id.
Plaintiff filed a First Amended Complaint on November 23, 2011. This amended complaint only alleges Count I -violations of TILA. [First Amended Complaint at ¶¶ 67-70.]
The TILA claim alleges that Plaintiff has the right to rescind the transaction due to Defendants' failure to provide her with the required disclosures. Plaintiff alleges that Defendants were aware of the disclosures but failed to provide them to Plaintiff. She first received notice of these disclosures in BAC Home Loans Servicing, LP's ("BAC") response to her qualified written requests on August 17, 2010. The First Amended Complaint states that Plaintiff elects to rescind the transaction "through this public complaint, which is intended to be construed, for purposes of this claim, as a formal notice of rescission[.]" [Id. at ¶¶ 68-70.] Plaintiff seeks a judgment of rescission and other appropriate relief.
In the instant Motion, Countrywide argues that Plaintiff has "failed again to provide any basis for allowing her TILA rescission claim to proceed[.]" [Mem. in Supp. of Motion at 1.] Specifically, Countrywide argues that Plaintiff's rescission claim under TILA is time-barred unless equitable tolling applies. [Id. at 6.] According to Countrywide, 15 U.S.C. § 1635(f) contains a three-year statute of repose, which is not subject to equitable tolling. [Id. at 5 (citing 15 U.S.C. § 1635(f); Cannon v. US Bank, NA, Civ. No. 11--00079 HG--BMK, 2011 WL 1637415, at *6 (D. Hawai`i Apr. 29, 2011) (citing Miguel v. Country Funding Corp., 309 F.3d 1161, 1164 (9th Cir. 2002))).] Further, the right to rescission is not self-executing and requires plaintiffs to notify their creditors in order to enforce this right. [Id. at 5-6 (citing 15 U.S.C. § 1635(a)).] The parties consummated the loan transaction on July 18, 2007.*fn3 Plaintiff commenced this action on July 16, 2010, alleging for the first time in her original Complaint that she had elected to rescind the subject mortgage loan under § 1635(a). Plaintiff attempts to use the Complaint as "formal notice of rescission." Thus, Countrywide argues that the claim is time-barred. [Id. at 6.]
Countrywide further argues that Plaintiff is not entitled to equitable tolling because she "pleads no facts indicating that any of the Defendants prevented Plaintiff from discovering the alleged TILA violation or somehow caused Plaintiff to allow the filing deadline to pass." [Id. at 6-7 (citing O'Donnell v. Vencor Inc., 466 F.3d 1104, 1112 (9th Cir. 2006) ("Equitable tolling is generally applied in situations 'where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.'" (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)))).] Plaintiff failed to assert facts to support an inference that she did not have a reasonable opportunity to discover the alleged
TILA violations between the consummation of the loan in July 2007 to the filing of her Complaint in July 2010. [Id. at 7.] Further, Plaintiff failed to plead facts indicating how Countrywide prevented Plaintiff from discovering the alleged TILA violation. [Id. at 7.] Plaintiff did not make an effort to discover the TILA violation until she sent Countrywide a qualified written request and demand letter on July 16, 2010. [Id. at 7.]
Countrywide therefore asks the Court to dismiss the remaining TILA rescission claim in Plaintiff's First ...