Kenneth J. Taggart v. Chase Bank USA, N.a.

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AMENDED ALD-049 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3067
___________
KENNETH J. TAGGART,
Appellant
v.
CHASE BANK USA, N.A.; JP MORGAN CHASE BANK,
d/b/a CHASE HOME FINANCE, LLC
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:09-cv-01533)
District Judge: Honorable John P. Fullam
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
November 19, 2009
Before: SLOVITER, AMBRO AND SMITH, Circuit Judges
( filed: November 27, 2009 )
_________
OPINION
_________
PER CURIAM
Kenneth Taggart appeals pro se from a District Court order dismissing his action
as untimely. For substantially the same reasons, we will affirm.

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In its memorandum, the District Court incorrectly identified the date of the mortgage1
closing as June 20, 2005. A review of the record indicates that the mortgage closing was
on July 20, 2005. This error does not change the outcome of the District Court’s decision.
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On March 5, 2009, Taggart initiated this action in state court asserting violations
of the Truth In Lending Act (“TILA”). Taggart alleged that the terms he signed in his
mortgage closing on July 20, 2005, were different than the disclosures he previously
received on June 5, 2005. Taggart claimed that the lender did not make the paperwork
available for 24 hours prior to settlement, that the June 2005 disclosures were confusing
and misleading, and that the margin of the annual percentage rate was different than what
he was originally informed they would be. Taggart also sued for rescission rights.
On April 9, 2009, defendants removed the action to federal court and filed a
motion to dismiss. Defendants argued that Taggart’s claims were time-barred and that his
rescission and damages claims were not actionable under TILA. In support, they included
a copy of the mortgage note, which was signed by Taggart on July 20, 2005, along with
various other documents from the property closing that disclosed the terms of the
mortgage. The District Court converted defendants’ motion to dismiss into a motion for
summary judgment and ordered Taggart to respond, specifically to “demonstrate why the
action was not filed too late (for example, if equitable tolling applies).” Taggart replied,
but did not address how his action is not barred as untimely. Accordingly, the District
Court found that the action was filed too late and dismissed it. Taggart timely appealed.1
Appellees filed a motion for summary affirmance.

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We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if
Taggart’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir.
I.O.P. 10.6. Our review is plenary. See Kaucher v. County of Bucks, 455 F.3d 418, 422
(3d Cir. 2006). Summary judgment will be affirmed if the record demonstrates that there
is no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c).
TILA imposes a one-year statute of limitations on actions that state a claim for
damages based on a violation of disclosure provisions. See 15 U.S.C. § 1640(e). The
limitations period begins when the transaction occurs. Id.; see also Ramadan v. Chase
Manhattan Bank, 156 F.3d 499, 500-01 (3d Cir. 1998). Equitable tolling can rescue a
TILA claim otherwise barred by the statute of limitations when the movant has “in some
extraordinary way . . . been prevented from asserting his or her rights.” See Miller v. N.J.
State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998) (quoting Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1380 (3d Cir. 1994)). Specifically, he must
demonstrate that he “exercised reasonable diligence in investigating and bringing” his
claims. Miller, 145 F.3d at 618-19 (quoting New Castle County v. Halliburton NUS
Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)).
The parties do not dispute that Taggart closed on the mortgage and signed the
TILA disclosure statements on July 20, 2005. Taggart filed his complaint on March 5,
2009 – clearly exceeding the one-year limitations period. Taggart’s claim that he has the

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Moreover, a consumer’s right of rescission extends for three years only if the2
property is the consumer’s principal dwelling. See 15 U.S.C. § 1635. Evidence provided
by defendants shows that the mortgage was to refinance an investment property.
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right to rescind also does not render his action timely; under 15 U.S.C. § 1635(f), he must
file his action within three years after the closing. Even assuming that this section
applies, the three-year period expired in July 2008. Thus, his claims are time-barred.2
Taggart also fails to show that equitable tolling applies. See Santos v. United
States, 559 F.3d 189, 198 (3d Cir. 2009). He does not show that defendants actively
misled him or engaged in conduct after the loan closed that justifies equitable relief. The
mortgage documents that Taggart signed expressly state the terms of his loan, which
appellees show that Taggart continued to pay for over three years up until he filed the
instant action. Taggart also does not show that defendants took extraordinary steps to
prevent him from asserting his rights. Id. Nor does he show that he exercised reasonable
diligence in investigating and bringing these claims. Miller, 145 F.3d at 618-19.
Accordingly, Taggart’s claims were properly dismissed.
Finally, Taggart’s arguments to this Court do not justify relief. The District Court
did not err in denying Taggart permission to amend because his claims were barred as a
matter of law. Even assuming, arguendo, that violations had occurred, the latest Taggart
could have filed a claim was one year after his mortgage closed, i.e., not later than July
20, 2006. His contention that he did not discover the alleged misleading terms until the
payments had increased does not excuse his untimeliness. Section 1635(f) also

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completely extinguished any right of rescission Taggart could have asserted when the
three-year period ended on July 20, 2008. See Beach v. Ocwen Fed. Bank, 523 U.S. 410,
412 (1998). Because dismissal was proper and because the appeal presents no substantial
question, we will grant the Appellees’ motion and summarily affirm the District Court
judgment. Appellant’s motions for summary action are denied as moot. In light of our
disposition, Appellees’ motion to strike Appellant’s document titled “Additional
Information/Notice to Court for Appellant’s Cross to Motion for Summary Action” is
denied.
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