James Rowe v. Aurora Commercial Corporation, No. 14-1906 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1906 JAMES J. ROWE, and; SHARON H. ROWE, Plaintiffs – Appellants, v. AURORA COMMERCIAL CORP., f/k/a Aurora Loan Services, Inc., a Delaware Corporation; NATIONSTAR MORTGAGE, LLC, a Texas Limited Liability Company, Defendants – Appellees, and CITIBANK, N.A.; LEHAM XS CERTIFICATES, SERIES 2005-6, TRUST MORTGAGE PASS-THROUGH Defendants. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. David A. Faber, Senior District Judge. (5:13-cv-21369) Submitted: January 29, 2015 Decided: April 7, 2015 Before SHEDD, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. L. Lee Javins, II, Guy R. Bucci, Mark A. Barney, BUCCI, BAILEY & JAVINS, LC, Charleston, West Virginia, for Appellants. John C. Lynch, Jason E. Manning, TROUTMAN SANDERS LLP, Virginia Beach, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Appellants James and Sharon Rowe appeal from the district court’s order dismissing their civil action contesting the terms property related in South to a note Carolina of against obligation the loan on their real servicers. The Rowes also appeal the district court’s determination in the same order that granting the Rowes leave to amend their complaint to add additional claims would be futile because the claims were barred or did not state a claim. The Rowes argue that the district court erred in: (1) finding that they did not state a claim for actual fraud; (2) not sufficiently ruling on their constructive fraud claim; (3) denying leave to amend to add a claim under the South Carolina Consumer Protection Code for unconscionable conduct; and (4) finding that it would be futile to assert claims against the creditor under the Truth in Lending Act because the statute of limitations had run and there were insufficient or inapplicable circumstances of equitable tolling. We affirm. We review the grant of a motion to dismiss for failure to state a claim de novo. Weidman v. Exxon Mobil Corp., __ F.3d __, 2015 WL 103954, *4 (4th Cir. Jan. 8, 2015) (No. 13-2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 544, 570 (2007)). Bell Atlantic Corp. v. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Francis v. Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009) (noting that the Conley v. Gibson, 355 U.S. 41, 45-56 (1957), standard was explicitly overruled in Twombly, 550 U.S. at 562-63)). “On appeal from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), we review the district court’s factual findings with respect to jurisdiction for clear error and the legal conclusion that flows therefrom de novo.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (citation and internal quotations omitted), cert. denied, 2015 WL 231968 (U.S. Jan. 20, 2015) (No. 13-1241). “On review of a Rule 12(b)(6) dismissal, we consider a case de novo,” evaluating “whether the plausible on complaint its states face.” a United claim States to ex relief that is rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (citations and internal quotations omitted). “Generally, we review a district court’s denial of a motion for leave to amend for abuse of discretion,” “[b]ut where, as here, the district court denied such a motion on grounds of futility, 4 we employ the same standard that would apply to our review of a motion to dismiss.” United States ex rel. Ahumada v. NISH, 756 F.3d 268, 274 (4th Cir. 2014) (citations and internal quotations omitted). We have carefully reviewed the briefs and record before us and, with the appropriate standards of review in mind, conclude that the district court did not err in granting the motion to dismiss the contested claims and denying leave to amend the complaint as to the claims the Rowes unsuccessfully sought to add. Rowe v. Aurora Commercial 5:13-cv-21369 (S.D. W. Va. Aug. 1, 2014). Corp., No. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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