Avington v. Bank of America

                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            May 24, 2021
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court

       Plaintiffs - Appellants,

 v.                                                          No. 20-5068
                                                 (D.C. No. 4:17-CV-00021-JED-FHM)
 BANK OF AMERICA, N.A.;                                      (N.D. Okla.)

       Defendants - Appellees.

                            ORDER AND JUDGMENT*

Before MATHESON, BRISCOE, and CARSON, Circuit Judges.

      A.V. Avington, Jr., and Patricia L. Avington, proceeding pro se,1 appeal the

district court’s dismissal, under Fed. R. Civ. P. 12(b)(6), of their claims against Bank

        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
        Because the Avingtons proceed pro se, we construe their arguments liberally,
but we “cannot take on the responsibility of serving as [their] attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836

, 840 (10th Cir. 2005).
of America, N.A., and Merscorps Holding Inc. (“Merscorps”). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I. BACKGROUND

      The Avingtons filed a complaint in January 2017. The district court construed

it as attempting to assert claims for fraud; racial discrimination in violation of the

Fair Housing Act (FHA), 42 U.S.C. § 3604(b), and Equal Credit Opportunity Act

(ECOA), 15 U.S.C. § 1691e; violation of the Racketeer Influenced and Corrupt

Organizations (RICO) Act, 18 U.S.C. § 1964(c); and noncompliance with the

Troubled Asset Relief Program (TARP) and Home Affordable Modification Program


      The Avingtons alleged Bank of America pursued foreclosure proceedings

against them from 2008 to 2011. They also alleged they “beg[a]n to receive

notifications from the Office of Attorney General State of Oklahoma informing the

Plaintiff(s) that they had been a victim of mortgage fraud . . . with respect to their

foreclosure or loan modification with Bank of America Corporation, et al, in March

of 2012.” R. at 15.

      The district court dismissed all claims but granted the Avingtons leave to

amend, other than the TARP and HAMP claims. The Avingtons filed an amended

complaint. It omitted many of the background facts appearing in the original

complaint, but it attempted to address the deficiencies the district court identified in

its first dismissal order. The district court construed the amended complaint “as

bringing RICO and fraud claims and “as incorporating the initial [c]omplaint to the

extent its allegations remain relevant.” 

Id. at 338

. The court dismissed the amended

complaint because (1) it failed to state a valid RICO or fraud claim and (2) the statute

of limitations barred any such claims. The court denied the Avingtons’ request to

amend their complaint again, concluding such amendment “would be futile and

further waste judicial resources.” 

Id. at 340

. The Avingtons appeal.

                                  II. DISCUSSION

      The Avingtons argue the district court should have (1) concluded their

amended complaint stated a viable RICO and fraud claim, (2) equitably tolled the

statute of limitations, (3) permitted them to file a second amended complaint, and

(4) applied the doctrine of equitable estoppel.2

      “We review de novo a district court’s decision on a Rule 12(b)(6) motion for

dismissal for failure to state a claim. Under this standard, we must accept all the

well-pleaded allegations of the complaint as true and must construe them in the light

most favorable to the plaintiff.” Waller v. City & Cnty. of Denver, 

932 F.3d 1277


1282 (10th Cir. 2019) (italics, citation, and quotations omitted). We also review de

novo “[w]hether a court properly applied a statute of limitations.” Nelson v. State

Farm Mut. Auto. Ins. Co., 

419 F.3d 1117

, 1119 (10th Cir. 2005). We ordinarily

review the denial of leave to amend for abuse of discretion, but “when denial is based

       The Avingtons’ brief makes no mention of claims for discrimination under
the FHA or ECOA. Thus, any arguments related to those claims are deemed waived,
and we do not consider them. See Folks v. State Farm Mut. Auto. Ins. Co., 

784 F.3d

, 737 (10th Cir. 2015).

on a determination that amendment would be futile, our review for abuse of

discretion includes de novo review of the legal basis for the finding of futility.”

Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 

565 F.3d 1232

, 1249

(10th Cir. 2009).

      We agree with the district court that, even if the Avingtons’ amended

complaint properly stated claims for RICO and common-law fraud, the statute of

limitations had expired. “[A] civil federal RICO action is subject to a four-year

limitations period,” Dummar v. Lummis, 

543 F.3d 614

, 621 (10th Cir. 2008), and the

statute of limitations for the Avingtons’ common-law fraud claim is two years, see

Okla. Stat. tit. 12, § 95(A)(3). For RICO claims,

             [w]hile the Supreme Court has not settled upon a definitive
             rule for when the limitations clock starts running, it has
             announced two possibilities: either when the plaintiff knew
             or should have known of his injury (the injury-discovery
             rule); or when the plaintiff was injured, whether he was
             aware of the injury or not (the injury-occurrence rule).

Cory v. Aztec Steel Bldg., Inc., 

468 F.3d 1226

, 1234 (10th Cir. 2006). The

limitations period for a common-law fraud claim in Oklahoma begins to run upon

“discovery of the fraud.” tit. 12, § 95(A)(3).

      The events described in the amended complaint occurred between 2008 and

2011. The Avingtons allege the Oklahoma Attorney General notified them that they

had been victims of mortgage fraud in March 2012. The four-year statute of

limitations therefore expired, at the latest, in March 2016, approximately ten months

before the Avingtons filed suit.

       We reject the Avingtons’ argument that the district court should have equitably

tolled the statutes of limitations. We review the district court's refusal to apply

equitable tolling for an abuse of discretion. Garrett v. Fleming, 

362 F.3d 692

, 695

(10th Cir. 2004). “Generally, equitable tolling requires a litigant to establish two

elements: (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Yang v. Archuleta, 

525 F.3d 925

, 928

(10th Cir. 2008) (quotations omitted). The Avingtons point to no extraordinary

circumstances here. Although they criticize the court’s dismissal of their claims, see

Aplt. Br. at 8 (“Appellants faced an extraordinary circumstance that the statute of

limitation allegedly was not met as accused by [the district court].”), it is circular to

claim the enforcement of a statute of limitations alone presents an extraordinary

circumstance that justifies equitable tolling.

       We also discern no abuse of discretion in the district court’s denial of the

Avingtons’ request for leave to file a second amended complaint. They cite cases

about courts’ affording latitude to pro se parties, but “[a]lthough a pro se litigant’s

pleadings are to be construed liberally and held to a less stringent standard than

formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se

parties follow the same rules of procedure that govern other litigants.” Garrett v.

Selby Connor Maddux & Janer, 

425 F.3d 836

, 840 (10th Cir. 2005) (citation,

brackets, and quotations omitted). The district court liberally construed the

Avingtons’ complaints, even allowing allegations in the first complaint to support the

claims asserted in the second. The Avingtons’ claims nonetheless are time-barred.

They have presented no argument to the district court or this court suggesting

otherwise. The district court therefore correctly concluded further amendment would

be futile.3

                                 III. CONCLUSION

       We affirm the district court’s judgment. We deny the Avingtons’ motion to

proceed in forma pauperis because they have not presented “a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

DeBardeleben v. Quinlan, 

937 F.2d 502

, 505 (10th Cir. 1991).

                                           Entered for the Court

                                           Scott M. Matheson, Jr.
                                           Circuit Judge

        In light of our upholding the district court’s conclusions that the Avingtons’
claims are time barred and equitable tolling does not apply, we need not address the
merits of their argument that the amended complaint stated RICO and fraud claims.
We also decline to address their equitable estoppel argument as both forfeited and
inadequately briefed. See Folks, 

784 F.3d at 741

; Garrett, 

425 F.3d at 840



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