United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE
September 17, 2019, the Magistrate Judge entered a Report and
Recommendation (Doc. 26) which recommends denial of the
Plaintiffs' Motion to Recall Writ of Possession (Doc. 20)
and the granting of Defendant's Motion to Dismiss (Docs.
15, 19). Plaintiffs timely filed objections (Doc. 27).
their objections, Plaintiffs argue they were diligent
throughout the ejectment process and the state court
proceedings regarding their home. Doc. 27 at 1. They argue
that “there were extraordinary circumstances beyond
[their] control that prevented [them] from filing this
lawsuit sooner.” Id. They further assert they
asked their attorney from the state-proceeding to file in
federal court and were told that it was. Id. at 3.
They request that the Court apply the doctrine of equitable
tolling and suspend the running of the statute of limitations
from February 2, 2016 to May 31, 2019 (the date the instant
action was filed). Id.
under the Real Estate Settlement Procedures Act
(“RESPA”) “may be brought within 3 years
from the date of the occurrence of the violation.” 12
U.S.C. § 2614. Based on their objections, Plaintiffs
essentially concede that the three-year statute of
limitations has expired on their claims. The Court then turns
the request for equitable tolling the statute of limitations.
“look to the relevant statute for guidance in
determining whether equitable tolling is appropriate in a
given situation.” Arce v. Garcia, 434 F.3d
1254, 1260 (11th Cir. 2006). However, equitable tolling is an
extraordinary remedy only applicable in exceptional
circumstances and should be extended only sparingly.
Justice v. United States, 6 F.3d 1474, 1479 (11th
Cir. 1993) (citing Irwin v. Veterans Administration,
498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435
(1990). “The general test for equitable tolling
requires the party seeking tolling to prove (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Villareal v. R.J. Reynolds Tobacco
Co., 839 F.3d 958, 971 (11th Cir. 2016) (quotation
is some split in authority on whether the RESPA statute of
limitations may be equitably tolled. Compare, e.g. Hardin
v. City Title & Escrow Co., 797 F.2d 1037, 1041
(D.C. Cir. 1986 (finding that equitable tolling does not
apply to RESPA) with Lawyers Title Ins. Corp. v. Dearborn
Title Corp., 118 F.3d 1157, 1166-67 (7th Cir. 1997)
(finding RESPA is subject to equitable tolling). However, it
would appear that the Eleventh Circuit, though not addressed
directly in a published opinion, would determine RESPA is
subject to equitable tolling. See Pedraza v. United Guar.
Corp., 313 F.3d 1323 (11th Cir. 2002) (acknowledging the
potential application of equitable tolling to RESPA actions);
McCarley v. KPMG Int'l, 293 Fed.Appx. 719, 723
(11th Cir. 2008) (an unpublished Eleventh Circuit case noting
the circuit split and the Eleventh Circuit Court of
Appeals' acknowledgement in Pedraza). However,
despite this, the Court finds that even if equitable tolling
does apply in RESPA cases, the requirements would not be met
their own statements in the objections, Plaintiffs were aware
of the claim and requested their attorney to file the case.
These are not extraordinary circumstances beyond their
control nor is that failure to file a claim a basis for
tolling the statute of limitations. Further, though the Court
is certainly sympathetic to the medical stress and its
resulting distractions, it still does not provide a legal
basis for tolling the claims.
after due and proper consideration of all portions of this
file deemed relevant to the issues raised, and a de
novo determination of those portions of the Report and
Recommendation to which objection is made, the Report and
Recommendation of the Magistrate Judge made under 28 U.S.C.
§ 636(b)(1)(B) is ADOPTED as the
opinion of this Court. Accordingly, it is
ORDERED that Plaintiffs' Objections are
OVERRULED, Defendants Motion to Dismiss
(Doc. 15) as supplemented (Doc. 19) is
GRANTED, and the Motion to Recall Writ of
Possession (Doc. 20) is DENIED.