United States District Court, D. Maine
JANE C. FORRESTER WINNE, Plaintiff,
NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1, et al., Defendants.
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
LEVY U.S. DISTRICT JUDGE.
Plaintiff, Jane C. Forrester Winne, has filed a class action
complaint seeking damages and injunctive relief, brought, she
asserts, on behalf of “vulnerable Maine students who
are being unlawfully pursued on alleged private student loan
debts they do not owe, were fraudulently procured, or
both.” ECF No. 3 at 2. Her individual claims arise out
of attempts by various parties to collect student debts she
allegedly owes. Three of the defendants-Citizens Bank, N.A.
(“Citizens”),  U.S. Bank National Association
(“US Bank”), and PNC Bank, N.A.
(“PNC”)-filed motions to dismiss the claims
against them pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. ECF No. 23; ECF No.
27; ECF No. 43. U.S. Bank also seeks dismissal under Rule
12(b)(2), asserting lack of personal jurisdiction. ECF No. 27
at 1. Oral argument on the motions was held before me on
November 17, 2016.
claims focus on two private student loans that were allegedly
made to her in 2004 and 2005 by Charter One Bank (now
Citizens) and PNC, respectively. Winne denies ever receiving
the proceeds from these loans, and asserts that she has never
made any payments on either loan. Winne alleges that Charter
One sold its loan to National Collegiate Student Loan Trust
2005-1 (“NCSLT 2005-1”), and PNC sold its loan to
National Collegiate Student Loan Trust 2005-3 (“NCSLT
2005-3”). The two loans allegedly then became the
subject of collection efforts by various entities connected
with the NCSLTs, beginning in 2014. In 2015, Winne was sued
on both loans by defendant Abrahamsen Ratchford, P.C., a law
firm representing the NCSLTs. The lawsuits were eventually
dismissed with prejudice. Winne alleges that collection
efforts on the loans have nonetheless continued, carried out
by defendants Transworld Systems, Inc.
(“Transworld”) and Turnstile Capital Management,
LLC (“Turnstile”), both acting on behalf of the
is a defendant in this suit because it acquired Charter One,
the bank that allegedly made the 2004 loan to Winne. Winne
has asserted claims against Citizens under the Truth in
Lending Act (“TILA”), 15 U.S.C.A. § 1601
et seq. (2016), and the Maine Unfair Trade Practices
Act (“MUTPA”), 5 M.R.S.A. § 205-A et
seq. (2016). Winne alleges that Citizens/Charter One
failed to provide her with the disclosures required by TILA
at the time she allegedly signed the loan agreement.
allegations against PNC, as the original lender of the 2005
loan, are identical to her allegations against Citizens. She
asserts claims under TILA and MUTPA, claiming that PNC failed
to provide the required disclosures at the time she allegedly
signed the loan agreement for the 2005 loan.
is a defendant in this suit by virtue of its position as
Indenture Trustee and Successor Special Servicer to the
NCSLTs. Winne alleges that U.S. Bank is responsible for
overseeing debt collection efforts for the loans owned by the
NCSLTs. Specifically, Winne alleges that U.S. Bank hired
Transworld and Turnstile, the entities that have been
contacting Winne regarding the loans, to act as
sub-servicers, and to collect debts on its behalf and on
behalf of the NCSLTs. ECF No. 3 at 14, ¶ 99. Winne
asserts claims against U.S. Bank under MUTPA, as well as the
federal Fair Debt Collection Practices Act, 15 U.S.C.A.
§ 1692 et seq. (2016) and the Maine Fair Debt
Collection Practices Act, 32 M.R.S.A. § 11001 et
claims against Citizens and PNC are identical, and the
arguments raised in their respective motions to dismiss are
substantially the same. See ECF No. 3; ECF No. 23;
ECF No. 43. For that reason, I address their motions
together. The claims against U.S. Bank are distinct, and will
be addressed separately.
Citizens' and PNC's Motions to Dismiss
and PNC both move to dismiss the claims against them under
Rule 12(b)(6) for failure to state a claim upon which relief
may be granted. Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the complaint “must contain sufficient factual
matter to state a claim to relief that is plausible on its
face.” Rodríguez-Reyes v.
Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)
(internal quotation omitted). The court should accept all
well-pleaded facts as true and draw all reasonable inferences
in the plaintiff's favor. Id. at 52-53.
Determining the plausibility of a claim is a context-specific
task that requires the court “to draw on its judicial
experience and common sense.” Id. at 53
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
initially asserted claims against Citizens and PNC under both
TILA and the MUTPA, claiming that the banks failed to provide
her with the required disclosures at the time she signed the
loan agreements for the alleged private loans. In her reply
brief, however, Winne acknowledged that financial
institutions doing business in Maine such as Citizens and PNC
are exempt from liability under MUTPA. ECF No. 57 at 11;
see also Shapiro v. Haenn, 190 F.Supp.2d 64, 69 (D.
Me. 2002). Accordingly, Winne's MUTPA claims against
Citizens and PNC will be dismissed.
to Winne's TILA claims, the banks argue that the claims
are barred by the statute of limitations, and are also
substantively meritless. ECF No. 23 at 5-12; ECF No. 43 at
5-15. Actions involving private education loans under TILA
are subject to a one-year statute of limitations. 15 U.S.C.A.
§ 1640(e) (2016). At the time of the alleged violations,
TILA provided that the limitations period ran “from the
date of the occurrence of the violation.” 15 U.S.C.A.
§ 1640(e) (2005). Winne concedes that this version of
the one-year statute of limitations is applicable to the
instant case. ECF No. 57 at 6. The parties also informed the
court at oral argument that Winne is relying solely on her
argument that the statute of limitations should be equitably
tolled, and she is not pressing the additional arguments
raised in her briefs that the limitations period either has
not yet begun to run, or has not yet expired.
federal law, a statute of limitations may be equitably tolled
to prevent unjust results or to maintain the integrity of a
statute. Salois v. Dime Sav. Bank of New York, FSB,
128 F.3d 20, 25 (1st Cir. 1997). Tolling is only appropriate
“when the circumstances that cause a plaintiff to miss
a filing deadline are out of his hands.” Id.
(internal quotation omitted). The plaintiff must show due
diligence in attempting to discover the cause of action
before the limitations period ran out. See Gonzalez v.
United States, 284 F.3d 281, 291 (1st Cir. 2002). Winne
contends that equitable tolling is appropriate in this case
due to the alleged “fraudulent activity” of the
defendants. ECF No. 32 at 4; ECF No. 57 at 8. She asserts
that she could not have discovered this alleged fraudulent
activity, which presumably includes the alleged underlying
TILA violation, until she was sued on the loans in 2015. ECF
No. 32 at 4; ECF No. 57 at 8-9.
extent Winne claims that the statute of limitations should be
equitably tolled under the doctrine of fraudulent
concealment, she must demonstrate that she has exercised
“reasonable diligence in discovering that she has been
the victim of fraud.” Philibotte v. Nisource Corp.
Serv. Co., 793 F.3d 159, 164 (1st Cir. 2015) (quoting
Salois, 128 F.3d at 26) (alterations omitted). As
multiple courts have pointed out, the alleged fraud must also
consist of conduct beyond the nondisclosure itself that
underlies the TILA claim; otherwise the statute of
limitations would be tolled in every suit and would be a
nullity. See Cardiello v. The Money Store, Inc.,
2001 WL 604007, at *5 (S.D.N.Y. June 1, 2001) (collecting
has not pled any fraudulent conduct by either Citizens or PNC
that served to conceal the alleged TILA violation within the
one-year statute of limitations period, beyond the alleged
TILA violation itself. There are no specific allegations in
the complaint that Citizens or PNC took any steps to prevent
Winne from discovering the alleged TILA violation within the
statutory period. See ECF No. 3. Nor has she pled
due diligence on her part to discover the violation. Winne
argues instead that her due diligence is illustrated by her
response to the state court lawsuit and her action in
bringing the instant suit. ECF No. 57 at 9. But to satisfy
the equitable tolling standard, she must demonstrate due
diligence during the statutory period, i.e. within one year
of the occurrence of the violation. See Gonzales,
284 F.3d at 291. She has failed to do so here. The loan
agreement that Winne signed with each bank informed her that
she would receive additional documentation if her loan
application were approved. ECF No. 3-1 at 2; ECF No. 3-2 at
3. She has failed to plead any basis for concluding that she
exercised due diligence in trying to discover that the
required TILA disclosures were not made, or for concluding
that Citizens or PNC fraudulently concealed their failure to
make disclosures from her within the one-year statutory
period. Accordingly, her TILA claims, as pleaded, are barred
by the statute of limitations, and will be dismissed for
failing to state a claim on which relief could be granted.
U.S. Bank's Motion to Dismiss
seeks dismissal on two grounds: lack of personal jurisdiction
under Rule 12(b)(2); and failure to state a claim under Rule
12(b)(6). ECF No. 27 at 1.
plaintiff has the burden of establishing the court's
personal jurisdiction over a defendant. Boit v. Gar-Tec
Prods., Inc.,967 F.2d 671, 674-75 (1st Cir. 1992). When
a defendant files a motion to dismiss for want of personal
jurisdiction pursuant to Rule 12(b)(2), “a district
court may choose from among several methods for determining
whether the plaintiff has met its burden.”
Baskin-Robbins Franchising LLC v. Alpenrose Dairy,
Inc.,825 F.3d 28, 34 (1st Cir. 2016) (quoting
Adelson v. Hananel,510 F.3d 43, 48 (1st Cir. 2007))
(internal quotation marks omitted). The “most
conventional” of these methods is the prima facie
method, which “permits the district court to consider
only whether the plaintiff has proffered evidence that, if
credited, is enough to support findings ...