                                                         [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 09-15560
                                                             JUNE 11, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________                CLERK

                    D. C. Docket No. 09-21636-CV-AJ

LUCE FRAZILE,


                                                           Plaintiff-Appellant,

                                  versus

EMC MORTGAGE CORPORATION,
a Foreign corporation,
FREMONT REORGANIZING CORPORATION,
a foreign corporation,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (June 11, 2010)
Before BIRCH, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Luce Frazile brought this action against EMC Mortgage Corporation

(“EMC”) and Fremont Reorganizing Corporation (“Fremont”). She alleges that in

executing and servicing her mortgage loan the defendants misrepresented the true

nature of her obligations and violated various federal loan processing requirements.

The district court granted the defendants’ motions to dismiss. This appeal

followed. For reasons we will discuss, we affirm in part, reverse in part, and

remand to the district court.

                                           I.

      Accepting the factual allegations of the complaint as true and construing

them in the light most favorable to Frazile, the relevant facts are as follows. In

2006, a Fremont agent approached Frazile and encouraged her to refinance the

home mortgage on her primary residence, which she alone owned. After she

refinanced, it quickly became apparent that Frazile could not afford the payments

on her newly refinanced mortgage and she turned to Fremont to rework the

agreement’s terms. On November 16, 2006, Frazile again refinanced her mortgage

loan. However, Frazile claims that at closing Fremont never provided her with

certain documents, namely a consumer handbook on adjustable rate mortgages,



                                           2
two copies of a notice of right to cancel the mortgage, or a closing package. She

further alleges that at some point after closing, EMC was assigned either the

mortgage and note, loan servicing responsibility, or some combination of these.

      Approximately two years after closing, in November 2008, Frazile attempted

to rescind her mortgage loan transaction, a right to which she claimed entitlement

under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601–1667f. In December

2008, Frazile finally received a “less-than-complete copy of the closing package”

from EMC. In these documents, her monthly income was misstated as $4,000,

well above her actual $1,200 monthly earnings. Under the terms of the mortgage,

the required monthly payments actually exceeded her monthly income. According

to her complaint, “[t]he cumulative effect of increased monthly mortgage

payments, property taxes and insurance premiums was to create an onerous

financial burden on Frazile that would seriously jeopardize her ownership of the

homestead of sixteen (16) years.”

      On June 15, 2009, Frazile filed this lawsuit. In addition to three state law

claims, she sought relief under the Real Estate Settlement Procedures Act

(“RESPA”), 12 U.S.C. §§ 2601–2617, TILA, and relevant federal regulations. The

defendants filed Rule 12(b)(6) motions to dismiss for failure to state a claim. The

district court granted the defendants’ motions, dismissing with prejudice Frazile’s



                                          3
federal claims, declining to exercise supplemental jurisdiction as to her remaining

state law claims, and closing the case. Frazile now appeals, challenging only the

district court’s ruling as to her two federal claims.

                                           II.

      “We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6).” Redland Co. v. Bank of Am. Corp., 568 F.3d 1232, 1234 (11th

Cir. 2009). While we accept all allegations of the complaint as true, the “[f]actual

allegations must be enough to raise a right to relief above the speculative level.’”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). In

other words, the plaintiff must “allege[] enough facts to suggest, raise a reasonable

expectation of, and render plausible” the claims. Watts v. Fla. Int’l Univ., 495

F.3d 1289, 1296 (11th Cir. 2007). “[T]he tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. ----, 129 S. Ct. 1937, 1949 (2009). Furthermore,

although the pleading party is not required to “allege a specific fact to cover every

element or allege with precision each element of a claim, it is still necessary that a

complaint contain either direct or inferential allegations respecting all the material

elements necessary to sustain a recovery under some viable legal theory.”

Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)



                                            4
(citation and internal quotation marks omitted).

                                           A.

      Count I of the complaint alleged violation of RESPA. In her complaint,

Frazile specifically identified only one provision of that statute as the basis for her

claims. She asserted that the defendants’ statutorily required “good faith estimate”

failed to “timely provide [her] with full disclosure regarding the nature and the cost

of the loan” including the “amount or range of settlement charges.” For this

reason, she alleged that the defendants violated 12 U.S.C. § 2604(c).

      We have held in the past that “there is no private civil action for a violation

of 12 U.S.C. § 2604(c), or any regulations relating to it.” Collins v.

FMHA-USDA, 105 F.3d 1366, 1368 (11th Cir. 1997). For this reason, we affirm

the district court’s conclusion that all claims brought under this provision must fail.

      However, the district court went on to liberally construe Frazile’s complaint.

The court examined Frazile’s argument, made in response to the defendants’

motions to dismiss, that she had pleaded sufficient facts to give rise to a claim

under 12 U.S.C. § 2605. Section 2605 does afford a private cause of action, and

requires that “[e]ach transferee servicer to whom the servicing of any federally

related mortgage loan is assigned, sold, or transferred shall notify the borrower of

any such assignment, sale, or transfer.” 12 U.S.C. § 2605(c)(1). The district court



                                            5
dismissed any claim arguably brought under § 2605 on the grounds that Frazile

failed to allege either (1) actual damage from the nondisclosure of the assignment

of the servicing of the loan—as compared to nondisclosure of the terms of the

mortgage—or (2) a pattern or practice of nondisclosure by the defendants that

would warrant statutory damages. Such an allegation is a necessary element of any

claim under § 2605. Id. § 2605(f). After careful review of the complaint, we agree

with the conclusion of the district court that Frazile failed to allege facts relevant to

the necessary element of damages caused by assignment. She did not, therefore,

state a claim under § 2605.

      On appeal, Frazile first acknowledges that her “complaint, as drafted, alleges

that the [RESPA] violations were of § 2604(c), only.” Despite this fact, and

without citation to any statutory provision, relevant regulation, or binding

authority, Frazile sets out a series of other RESPA claims that she argues can be

inferred from the facts alleged in her complaint. Her attempts to salvage a RESPA

claim, however, are without merit. Frazile seems to suggest that she can assert a

cause of action under 12 U.S.C. § 2607 (prohibiting kickbacks, markups, and fee

splitting for services not performed) or 12 U.S.C. § 2605(e) (setting out the proper

form and timing of responses to qualified written requests).

      Frazile never raised arguments regarding § 2607 at the district court, even



                                            6
though she had the opportunity to do so. When, for instance, the defendants

pointed out in their respective motions to dismiss that § 2604(c) could not support

a private cause of action, Frazile did not argue that her complaint alleged facts

sufficient to give rise to claims of unlawful markups, kickbacks, or fee splitting.

Instead, as it related to RESPA, Frazile’s responsive filing focused entirely on

§ 2605. She argued that although she had cited only § 2604(c), “[t]he motion to

dismiss should be denied because Ms. Frazile is afforded a private or individual

cause of action under § 2605.” “[W]e have repeatedly held that ‘an issue not raised

in the district court and raised for the first time in an appeal will not be considered

by this court.’” Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (quoting

Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991)). If we were to try and

address these new arguments on appeal, “we [would] have nothing to go on other

than scattered (and unsupported) factual references in the appellant[’s] brief before

this Court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir.

2004). Under this standard, Frazile failed to preserve a § 2607 claim.

      In addition, after careful review of Frazile’s complaint, we cannot conclude

that Frazile “alleged enough facts to suggest, raise a reasonable expectation of, and

render plausible” claims brought under either § 2607 or § 2605(e). See Watts, 495

F.3d at 1296. Relying solely on the allegations of the complaint, we conclude that



                                            7
Frazile’s pleading did not afford the defendants fair notice either that she brought a

claim for payment of unlawful kickbacks, markups, or fee splitting, or that she

brought a claim based on the inadequacy of their response to her qualified written

request. In other words, her complaint did not include factual allegations sufficient

“to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555,

127 S. Ct. at 1965.

      For the foregoing reasons, the district court did not err when it held that

Frazile’s complaint failed to state a RESPA claim.

                                          B.

      Frazile also sought relief under TILA, alleging that the defendants violated

15 U.S.C. §§ 1635, 1640, and 1641 as well as Regulation Z, 12 C.F.R. § 226. She

asked that the district court remedy her losses by rescinding her mortgage

transaction and awarding damages, costs, and attorney’s fees. The district court

rejected Frazile’s TILA claims on the grounds that rescission was not available for

residential mortgage transactions of the type at issue in Frazile’s suit and that any

claim for damages was time-barred.

      The district court turned to 15 U.S.C. § 1635(e)(1) to dispense with Frazile’s

rescission claim. However, its reliance on this provision was misplaced. TILA

exempts from the right of rescission residential mortgage transactions “to finance



                                           8
the acquisition or initial construction of such dwelling.” See 15 U.S.C.

§§ 1635(e)(1), 1602(w); 12 C.F.R. §§ 226.23(f)(1), 226.2(a)(24). However, the

facts alleged in Frazile’s complaint clearly demonstrate that the mortgage at issue

was obtained as part of a refinancing transaction. Thus, § 1635(e)(1)’s exemption

is not applicable.1

       Frazile also sought damages, attorney’s fees, and costs under § 1640(a) both

for the defendants’ failure to comply with the statute’s disclosure requirements and

for their failure to properly respond to her November 2008 rescission request. The

district court addressed only the former issue, deeming any claim for damages

time-barred under § 1640(e), which requires that plaintiffs bring suit “within one

year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e).

       This Court has observed that a TILA nondisclosure “violation ‘occurs’ when

the transaction is consummated,” in other words, at the time of closing of a

residential mortgage transaction. Smith v. Am. Fin. Sys., Inc. (In re Smith), 737

F.2d 1549, 1552 (11th Cir. 1984). Insofar as nondisclosure is concerned, we have



       1
          We are aware that under 15 U.S.C. § 1635(e)(2) the right to rescind does not apply to
certain refinancing and consolidation loans. However, neither the district court nor either
defendant—in their motions to dismiss or on appeal—cites to or relies upon this provision when
arguing that Frazile failed to state a TILA claim. Furthermore, even if § 1635(e)(2) were
applicable, Frazile might still have a right to rescind “to the extent the new amount financed
exceed[ed] the unpaid principal balance, any earned unpaid finance charge on the existing debt,
and amounts attributed solely to the costs of the refinancing or consolidation.” 12 C.F.R.
§ 226.23(f)(2).

                                               9
held that the violation “is not a continuing violation for purposes of the statute of

limitations.” Id. We have also recognized that the doctrine of equitable tolling

might salvage a stale TILA claim where the debtor “ha[s] been prevented from

[bringing suit] due to inequitable circumstances.” Ellis v. Gen. Motors Acceptance

Corp., 160 F.3d 703, 706–08 (11th Cir. 1998).

       The alleged nondisclosure occurred at closing on November 16, 2006, more

than a year prior to the commencement of this suit. As the district court correctly

observed, the complaint’s relevant assertions of misconduct all relate to conduct

that took place on or before closing. Because Frazile filed this suit on June 15,

2009, more than one year later, her damages action for noncompliance with

TILA’s disclosure requirements is time-barred.2


       2
          In her briefs on appeal, Frazile asserts that the district court should have deemed the
statute of limitations equitably tolled because the defendants did not supply her with the relevant
TILA-required disclosures until December 2008 or January 2009, and that the documents
eventually provided were incomplete. She also claims that the statute of limitations defense is
inapplicable because the exact date of the closing is in question.
         Frazile’s equitable tolling arguments fail. The alleged nondisclosure of TILA-related
documents is the same conduct that makes up the TILA violation itself, a violation that we have
deemed noncontinuing for statute of limitation purposes. See In re Smith, 737 F.2d at 1552. To
hold otherwise would mean that any failure to disclose at the time of closing would not only give
rise to a TILA claim, but would also toll the statute of limitations, thereby eviscerating the time
limit expressly set out in § 1640(e). Frazile knew in 2006, at the time of closing, that she had not
been supplied with the documents. Her ability to bring suit within one year of this alleged TILA
violation was not affected by the defendants’ failure to provide the required documents at
closing or by EMC’s purportedly incomplete disclosures two years later.
         Insofar as she questions the exact date of the closing, Frazile’s argument is directly
contradicted by the allegations of her own complaint, in which she clearly and repeatedly asserts
that the refinancing transaction closed on November 16, 2006.
         Thus, Frazile has failed to state facts sufficient to demonstrate that she was prevented

                                                10
       However, the district court did not evaluate whether the defendants’ failure

to timely rescind the mortgage transaction amounted to a separate violation of

§ 1635(b), which is actionable under § 1640(a). See In re Smith, 737 F.2d at 1552.

When a borrower exercises a valid right to rescission, the creditor must take action

within twenty days after receipt of the notice of rescission, returning the

borrower’s money and terminating its security interest. See 15 U.S.C. § 1635(b).

Failure to do so constitutes a separate violation of TILA, actionable under § 1640.

Therefore, the one-year limitations period for violation of § 1635(b) claims runs

from twenty days after a plaintiff gives notice of rescission. See Belini v. Wash.

Mut. Bank, FA, 412 F.3d 17, 26 (1st Cir. 2005) (holding that though the plaintiffs

had conceded that their disclosure-based TILA claims were time-barred, the statute

of limitations had not yet run on claims arising out of noncompliance with

§ 1635(b)’s twenty-day requirement). Frazile alleged that in November 2008 she

exercised her statutory right to rescind and that the defendants failed to timely

respond. Frazile then filed this action on June 15, 2009. Thus, Frazile’s cause of

action for inadequate response to her notice of rescission is not time-barred.3


from filing this lawsuit by extraordinary circumstances that were both beyond her control and
unavoidable and that she had diligently sought to preserve her statutory rights within a year of
the alleged nondisclosure violation. See Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006).
       3
         Fremont argues that Frazile waived the right to object to both § 1635(e)(1)’s
applicability and the timeliness of her damages action because her initial brief did not directly
address the grounds on which the district court based its ruling. Instead, argues Fremont, Frazile

                                                11
        We recognize that the defendants set out a series of alternative grounds on

which we might affirm the district court’s dismissal of Frazile’s TILA claims.

Despite our authority to affirm on other grounds, we think the better course is to

leave these issues for appropriate factual and legal development by the district

court. See Jones v. Dillard’s, Inc., 331 F.3d 1259, 1268 n.4 (11th Cir. 2003). On

remand, the district court should therefore evaluate the defendants’ other grounds

for dismissal and determine whether Frazile has, in fact, stated a TILA claim. If

she has, the district court must then determine whether the alleged nondisclosures

preserved Frazile’s right to rescind for three years, see 15 U.S.C. § 1635(f), and

whether Frazile has alleged that the defendants violated TILA’s rescission

procedures by failing to adequately respond to her rescission notice, see id.

§ 1635(b).




conflates the two issues and dedicates the bulk of her initial brief to the timeliness of her
rescission claim. We do not consider these issues abandoned. In her brief, Frazile argues that
she continues to enjoy TILA’s protections, citing cases to support the position that she is allowed
three years to request rescission of the mortgage transaction, pursuant to § 1635(f). Her
argument therefore necessarily takes issue with the district court’s conclusion that her mortgage
transaction is exempted under § 1635(e). Additionally, she challenges the district court’s finding
that she is not entitled to equitable tolling of the statute of limitations, claiming in her initial brief
that in 2008 and in 2009 EMC obstructed her ability to acquire information relevant to her suit.
Thus, the defendants were on notice that the district court’s TILA rulings were within the scope
of Frazile’s appeal.

                                                   12
                                       III.

     For the foregoing reasons, the district court’s dismissal of Frazile’s RESPA

claims is AFFIRMED. However, we REVERSE as to Frazile’s TILA claims and

REMAND for proceedings consistent with this opinion.




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