Taylor v. Bank of Am.

             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                2022-NCCOA-912

                                No. COA20-160-3

                             Filed 29 December 2022

Mecklenburg County, No. 18-CVS-8266

CHESTER TAYLOR III, RONDA and BRIAN WARLICK, LORI MENDEZ, LORI
MARTINEZ, CRYSTAL PRICE, JEANETTE and ANDREW ALESHIRE,
MARQUITA PERRY, WHITNEY WHITESIDE, KIMBERLY STEPHAN, KEITH
PEACOCK, ZELMON MCBRIDE, Plaintiffs-Appellants,

            v.

BANK OF AMERICA, N.A., Defendant-Appellee.

      On remand from the Supreme Court of North Carolina, 2022-NCSC-117,

vacating and remanding the decision of the Court of Appeals, 

, 

 (2021). Appeal by plaintiffs from order entered 3 October 2019 by Judge

Lisa C. Bell in Mecklenburg County Superior Court. Originally heard in the Court of

Appeals 21 October 2021.


      Robinson Elliott & Smith, by William C. Robinson, Dorothy M. Gooding, and
      Robert F. Orr, and Aylstock, Witkin, Kreis & Overholtz, PLLC, by Samantha
      Katen, Justin Witkin, Chelsie Warner, Caitlyn Miller, and Daniel Thornburgh,
      for plaintiffs-appellants.

      McGuireWoods, LLP, by Bradley R. Kutrow, and Goodwin Procter LLP, by
      Keith Levenberg, and James W. McGarry, for defendant-appellee.


      CARPENTER, Judge.
                                 TAYLOR V. BANK OF AM., N.A.

                                         2022-NCCOA-912

                                        Opinion of the Court



¶1         This case returned to us on remand from our Supreme Court to address

     whether the allegations made in Plaintiffs’ complaint, if treated as true, are

     “sufficient to state a claim upon which relief can be granted under some legal theory.”

     Taylor v. Bank of Am., N.A., 2022-NCSC-117, ¶ 9 (citing Bridges v. Parrish, 

, 

 (2013)). After conducting a thorough de novo review of

     the record, we hold the trial court erred when granting Defendant’s 12(b)(6) motion.

                            I. Facts & Procedural Background

¶2         We adopt the facts and procedural history of this case as described in this

     Court’s previous opinion, while adding additional key facts considered in our de novo

     review. See Taylor v. Bank of Am., N.A., 

, 2021-NCCOA-556.

¶3         On 1 May 2018, eleven Plaintiffs initiated the underlying action against

     Defendant. On 13 March 2019, an amended complaint was filed after two of the

     initial Plaintiffs withdrew from the action, leaving nine Plaintiffs remaining. The

     remaining nine Plaintiffs are domiciled in North Carolina, Wisconsin, Michigan,

     Arizona, California, and Nevada.

¶4         Each Plaintiff sought a modification of their mortgage through Defendant’s

     Home Affordable Modification Program (“HAMP”). Each Plaintiff communicated

     with loan representatives employed by Defendant regarding their respective HAMP

     qualification and application.
                                  TAYLOR V. BANK OF AM., N.A.

                                         2022-NCCOA-912

                                        Opinion of the Court



¶5         According to sworn declarations made by its employees, Defendant employed

     a common strategy of delaying HAMP applications by “claiming that documents were

     incomplete or missing when they were not, or simply claiming the file was ‘under

     review’ when it was not.”       Defendant’s employees were instructed to “inform

     homeowners that modification documents were not received on time, not received at

     all, or that documents were missing, even when, in fact, all documents were received

     in full and on time.” Defendant’s employees “witnessed employees and managers

     change and falsify information in the systems of record.” One employee of Defendant

     stated that he was instructed to participate in a “blitz,” during which his team “would

     decline thousands of modification files . . . for no reason other than the documents

     were more than 60 days old.”

¶6         Each Plaintiff had their mortgage foreclosed after applying for and being

     denied a HAMP modification.       Plaintiffs allege they are victims of a fraudulent

     scheme exacted by Defendant.

                                    II. Standard of Review

¶7         The sole issue we consider is whether the trial court erred by granting

     Defendant’s motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of

     Civil Procedure. “Our review of the grant of a motion to dismiss under Rule 12(b)(6)

     . . . is de novo.” Bridges, 

, 

; See Podrebarac v. Horack,

     Talley, Pharr, & Lowndes, P.A., 

, 

 (2013)
                                  TAYLOR V. BANK OF AM., N.A.

                                         2022-NCCOA-912

                                        Opinion of the Court



     (stating that the court should liberally construe the legal theory under which the

     requested relief was made.). “We consider ‘whether the allegations of the complaint,

     if treated as true, are sufficient to state a claim upon which relief can be granted

     under some legal theory.’” Id. at 541, 

 (quoting Coley v. State, 

, 

 (2006)).

                                          III. Analysis

¶8         At the heart of the underlying matter is whether Plaintiffs’ claims are barred

     by the statute of limitations. In North Carolina a cause of action for a fraud claim

     must be brought within three years and “shall not be deemed to have accrued until

     the discovery by the aggrieved party of the facts constituting the fraud or mistake.”

     

(9) (2021). Discovery means either the actual discovery, or

     when the fraud should have been discovered in the exercise of “reasonable diligence

     under the circumstances.” Forbis v. Neal, 

, 

     (2007) (citing Bennett v. Anson Bank & Trust Co., 

, 

 (1965)).   Generally, the appropriate date of discovery of “alleged fraud or

     negligence—or whether [the plaintiff] should have discovered it earlier through

     reasonable diligence—is a question of fact for a jury, not an appellate court.” Piles v.

     Allstate Insurance Co., 

, 

 (2007); see Everts

     v. Parkinson, 

, 

 (2001) (reasoning that
                                    TAYLOR V. BANK OF AM., N.A.

                                           2022-NCCOA-912

                                          Opinion of the Court



       when “evidence is sufficient to support an inference that the limitations period has

       not expired, the issue should be submitted to the jury.”).

¶9           Here, we hold the trial court erred in granting Defendant’s 12(b)(6) motion.

       Upon review of Plaintiffs’ complaint, taking the allegations therein as true, we

       determine that there are sufficient facts alleged to suggest Plaintiffs remained

       unaware of Defendant’s alleged fraudulent scheme for many years and that they each

       suffered a resulting harm. Further, the determination of when Plaintiffs became

       aware of the fraud will be dispositive of whether the applicable statute of limitations

       had expired prior to Plaintiffs bringing their claims. For that reason, we hold that

       Plaintiffs’ complaint sufficiently alleged enough information to withstand a motion to

       dismiss for failure to state a claim. See N.C. R. Civ. P. 12(b)(6).

¶ 10         The dissent states the statute of limitations ceased to be tolled at the time

       Plaintiffs’ homes were foreclosed. This issue may be appropriate to address on a

       subsequent motion for summary judgment. The determination of when Plaintiffs

       became aware of the alleged fraud may also be appropriate to consider at a later

       procedural stage—but has no bearing at this juncture—as Plaintiffs have sufficiently

       pleaded a cause of action, treating all pled allegations as true, to survive dismissal

       pursuant to N.C. R. Civ. P. 12(b)(6). See Bridges, 

, 

.

       As such, we hold the trial court erred in granting Defendant’s 12(b)(6) motion.

                                          IV. Conclusion
                                  TAYLOR V. BANK OF AM., N.A.

                                          2022-NCCOA-912

                                         Opinion of the Court



¶ 11         We conclude the trial court erred by granting Defendant’s 12(b)(6) motion to

       dismiss. Thus, we reverse the trial court’s dismissal of Plaintiffs’ complaint and

       remand for further proceedings.



             REMANDED.

             Judge JACKSON concurs.

             Judge DILLON dissents by separate opinion.
        No. COA20-160-3 – Taylor v. Bank of America, N.A.


             DILLON, Judge, dissenting.


¶ 12         I dissent for the reasoning stated in my dissent in Taylor v. Bank of America,

       

, 

 (2021) (Dillon, J., dissenting). As I stated in that

       dissent, I conclude that the statute of limitations ceased to be tolled, if at all, by the

       time each plaintiff became aware of his/her injury, that is, when his/her home was

       foreclosed upon. And since the complaint alleges when the foreclosures took place

       and that they took place more than three years before the complaint was filed, I

       conclude that dismissal pursuant to Rule 12(b)(6) was appropriate.