Devon Anthony Brown v. Santander Bank

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13550
Non-Argument Calendar
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D.C. Docket No. 9:20-cv-80041-RLR
DEVON ANTHONY BROWN,
Plaintiff-Appellant,
versus
SANTANDER BANK,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 17, 2021)
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Devon Brown, proceeding pro se, appeals the district court’s dismissal with
prejudice of his amended complaint under the Truth in Lending Act (“TILA”), 15
U.S.C. § 1640 and Section 5 of the Federal Trade Commission Act (“FTC Act”), 15
U.S.C. § 45. The district court ruled that Mr. Brown’s claims against Santander
Bank must be dismissed. The first claim was time-barred under TILA’s one-year
statute of limitations, and the second claim failed because the FTC Act does not
provide a private right of action. Mr. Brown now argues, all for the first time on
appeal, that the district court erred in dismissing his amended complaint because it
should have (1) equitably tolled the one-year statute of limitations; (2) applied the
three-year statute of limitations under 15 U.S.C. § 1635 instead of § 1640’s one-year
period; or (3) applied the fraud-based “discovery rule.”1
We review de novo a district court’s dismissal of a plaintiff’s complaint under
Rule 12(b)(6) for failure to satisfy the statute of limitations, accepting as true the
allegations made in the complaint. Jackson v. Astrue, 506 F.3d 1349, 1352 (11th
Cir. 2007). We also review the legal question of whether equitable tolling applies
de novo. Id.
Under TILA, all claims must be brought “within one year from the date of the
occurrence of the violation.” 15 U.S.C. § 1640(e). The violation occurs when the
1 Mr. Brown does not raise any argument as to the dismissal of his FTC Act claim, and he has thus
abandoned any argument as to that issue on appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th
Cir. 1994) (holding that a pro se litigant abandons an issue by failing to challenge it on appeal).
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transaction is consummated, and nondisclosure is not a continuing violation for the
purposes of the statute of limitations. See In re Smith, 737 F.2d 1549, 1552 (11th
Cir. 1984).2
We have held, however, that TILA’s one-year statute of limitations is subject
to equitable tolling in certain circumstances. See Ellis v. GMAC, 160 F.3d 703, 708
(11th Cir. 1998). The general test for equitable tolling requires the party seeking
tolling to prove that (1) he diligently pursued his rights, and (2) an extraordinary
circumstance has prevented him from meeting a deadline. See Villarreal v. R.J.
Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en banc). Equitable
tolling is an extraordinary remedy that should be extended only sparingly, and the
plaintiff carries the burden to show that such a remedy is warranted. See Chang v.
Carnival Corp., 839 F.3d 993, 996 (11th Cir. 2016).
The Supreme Court has “noted the existence of decisions applying a discovery
rule in ‘fraud cases’ that is distinct from the traditional equitable tolling doctrine,”
and it has stated that this “fraud discovery rule” is also based in equity. See Rotkiske
v. Klemm, 140 S. Ct. 355, 358 (2019). The Court has also held that the discovery
2 TILA provides an exception to this rule for other forms of relief specific to certain types of loans
tied to real property. See Christ v. Beneficial Corp., 547 F.3d 1292, 1297 (11th Cir. 2008); see
also 15 U.S.C. §§ 1635(a)–(b); 1640(a)(4). Such TILA claims may be brought within three years
of the alleged violation. 15 U.S.C. § 1640(e). This exception is inapplicable here because this
case involves a vehicle financing agreement.
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rule “refers not only to a plaintiff’s actual discovery of certain facts, but also to the
facts that a reasonably diligent plaintiff would have discovered.” Merck & Co., Inc.
v. Reynolds, 559 U.S. 633, 644 (2010).
We will generally not consider issues raised for the first time on appeal. See
Finnegan v. Comm’r of Internal Revenue, 926 F.3d 1261, 1271 (11th Cir. 2019).
Although pro se pleadings and briefs are held to a less stringent standard than
pleadings drafted by attorneys and will be liberally construed, we may not “serve as
de facto counsel for a party [or] rewrite an otherwise deficient pleading in order to
sustain an action.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168–69 (11th Cir.
2014). Moreover, all litigants in federal court—pro se or counseled—are required
to comply with the applicable procedural rules. See Albra v. Advan, Inc., 490 F.3d
826, 829 (11th Cir. 2007).
Here, Mr. Brown failed to raise below the arguments he now presents on
appeal. He has thus waived them on appeal. See Finnegan, 926 F.3d at 1271. Even
if Mr. Brown had not waived his arguments regarding equitable tolling and the fraud
discovery rule, he did not allege any facts in his amended complaint that would
support the applicability of either of these doctrines. We therefore affirm the district
court’s dismissal with prejudice of Mr. Brown’s amended complaint.
AFFIRMED.
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