PS4-181                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1405
                                       ___________

                                     NINA SHAHIN;
                                    MAZEN SHAHIN,
                                              Appellants

                                             v.

          PNC BANK, Local Branch at 87 Greentree Drive, Dover, DE 19904;
               PNC BANK, corporate headquarters in Pittsburgh, PA;
              ANDREW ROGAN, Assistant Manager of Dover Branch;
                LEGHSA COPETILLO, Manager of Dover Branch
                  ____________________________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                         (D.C. Civil Action No. 1-13-cv-01404)
                      District Judge: Honorable Leonard P. Stark
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 27, 2015
          Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: August 24, 2015)
                                      ___________

                                        OPINION*
                                       ___________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Mazen Shahin and Nina Shahin, husband and wife, appeal from orders of the

United States District Court for the District of Delaware, which dismissed their

complaint. For the reasons that follow, we will affirm the District Court’s judgment in

part, vacate it in part, and remand for further proceedings.

                                             I.

       The Shahins’ complaint was based on events surrounding their unsuccessful

attempt to obtain a home equity loan from a branch of PNC bank. The Shahins sued the

bank, and the branch’s manager and assistant manager. The complaint alleged that the

defendants violated provisions of the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3605,

3617; the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq.;

the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et seq.; the Equal Credit

Opportunity Act (“ECOA”), 15 U.S.C. § 1691, et seq.; and the regulations implementing

those statutes.

       The Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

The Shahins did not respond directly, but filed a motion for sanctions under Fed. R. Civ.

P. 11(b), and Rule 3.1 of the Delaware Lawyers Rules of Professional Conduct. The

District Court granted the Defendants’ motion to dismiss and denied the motion for

sanctions. The Shahins filed a motion for reargument. The District Court acknowledged

a miscalculation concerning the period of limitations for a TILA claim, but dismissed the


                                              2
claim on other grounds, and otherwise found no reason to disturb its initial decision. The

Shahins timely appealed.

                                               II.

       We have jurisdiction to review the District Court’s October 9, 2014 order

dismissing the Shahins’ complaint under 28 U.S.C. § 1291. We exercise plenary review

over a district court’s decision to grant a Rule 12(b)(6) motion to dismiss. Fleisher v.

Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). “[I]n deciding a motion to dismiss,

all well-pleaded allegations of the complaint must be taken as true and interpreted in the

light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.”

McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (quotation marks omitted).

To withstand a Rule 12(b)(6) 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.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

       We turn first to the Shahins’ claims of discrimination under the FHA and ECOA.

Under the ECOA, a creditor may not discriminate against any applicant on the basis of

national origin, see 15 U.S.C. § 1691(a), and the FHA prohibits lenders from refusing “to

sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because

of . . . national origin,” see 42 U.S.C. § 3604(a). The parties argue about whether the

Shahins’ complaint establishes a prima facie case under these statutes, but that is not the

focus at the Rule 12(b)(6) stage, as the prima facie case is an evidentiary standard. See
                                                3
Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009); E.E.O.C. v. Port Auth. of

N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014). Rather, “while a discrimination

complaint need not allege facts establishing each element of a prima facie case of

discrimination to survive a motion to dismiss, . . . it must at a minimum assert

nonconclusory factual matter sufficient to nudge its claims across the line from

conceivable to plausible to proceed.” Port Auth. of N.Y. & N.J., 768 F.3d at 254

(alterations and citations omitted).

       The complaint here does not plausibly indicate that PNC declined1 to provide a

loan for any discriminatory reason. The Shahins’ allegation that the defendants were

“well aware of the Plaintiffs’ foreign origins and treated them as idiots who can be

threatened, harassed, intimidated, insulted and deprived of their civil and constitutional

rights,” Complaint at 5, does not “establish the requisite inference.” See 16630

Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504-05 (6th Cir. 2013)

(allegation of Iraqi origin not sufficient to support inference of discrimination, citing

Iqbal, 556 U.S. at 677, 681). We thus conclude that the District Court properly

determined that the claims of discrimination in violation of the FHA and ECOA did not

state a claim upon which relief could be granted.


1
 It is unclear whether PNC ever officially “denied” the loan application. In fact, the
Shahins have submitted a document showing that the application was “approved.”
Plaintiffs-Appellants’ Opening Appendix Vol. II at AA67. But of course, the Shahins do
allege that PNC terminated its banking relationship with them by closing all of their
accounts, which would effectively “deny” the loan. See letters attached to complaint,
dkt. #1.
                                             4
       We next consider the Shahins’ claims under RESPA and TILA. The District

Court held that RESPA does not provide a private right of action for a violation of

§§ 2604(c) & (d) of the Act, which require a lender to provide a borrower with a “Good

Faith Estimate” (“GFE”) within three days of receiving a loan application. We agree, and

we affirm the District Court’s judgment to the extent that it found no private right of

action under that section of RESPA. See Collins v. FMHA-USDA, 105 F.3d 1366, 1368

(11th Cir. 1997) (per curiam) (examining congressional intent and concluding that there

is no private right of action under §§ 2604(c) & (d)); see also Wisniewski v. Rodale, Inc.,

510 F.3d 294, 301 (3d Cir. 2007) (explaining that congressional intent is crucial in

determining whether a statute includes an implied private right of action).

       But the Shahins now say that they are not trying to sue under § 2604; instead, they

appear to argue that the complaint cites RESPA only to the extent it refers to TILA as the

appropriate statute governing disclosures for home equity loans. See 24 C.F.R. § 3500.7

(2012) (removed)2 (lender who provides a borrower of an open-end home equity loan

with the disclosures required by TILA’s Regulation Z (12 C.F.R. § 226.5b) at the time

the borrower applies for such loan shall be deemed to satisfy RESPA’s requirements for

providing a GFE). We thus turn to the Shahins’ claims under TILA.


2
  The Department of Housing and Urban Development removed its regulations
authorized under RESPA when its responsibility for administration of the statute was
transferred to the Consumer Financial Protection Bureau. See 79 Fed. Reg. 34224-01
(June 16, 2014). HUD’s regulations still were in force at the time of the incidents alleged
in the complaint.

                                             5
       According to the implementing regulations of TILA, a lender is required to make

certain disclosures (including, for example, payment terms and annual percentage rate,

see 12 C.F.R. § 226.5b(d)) to a home equity loan applicant “at the time an application is

provided to the consumer.” 12 C.F.R. § 226.5b(b).3 TILA does provide for a private

cause of action against “any creditor who fails to comply with any requirement imposed

under this part,” including awards for actual damages and/or statutory damages. 15

U.S.C. § 1640. The Shahins’ complaint could be generously construed as alleging that

PNC did not provide them with the disclosures required by TILA.4 Assuming that is true,

the allegations of the complaint do not support an inference that the Shahins suffered any

actual damages from the failure to receive the disclosures. See Vallies v. Sky Bank, 591

F.3d 152, 157 (3d Cir. 2009) (actual damages under TILA require that the loss be linked

to the failure to disclose). Nor as currently pleaded are the Shahins entitled to statutory

damages although it is the case that statutory damages may be available even where no




3
  A footnote provides that “[t]he disclosures and the brochure may be delivered or placed
in the mail not later than three business days following receipt of a consumer’s
application in the case of applications contained in magazines or other publications, or
when the application is received by telephone or through an intermediary agent or
broker,” but according to the allegations of the complaint, the Shahins applied in person,
so the footnote would not apply. See 12 C.F.R. 226.5b(b) n.10a.
4
  At the Rule 12(b)(6) stage, we must interpret the allegations of the complaint in the
light most favorable to the Shahins, but because the disclosures required by TILA “may
be provided on the application form or on a separate form,” see 12 C.F.R. § 226.5b(a)(1),
it may be that PNC provided the disclosures as part of the application form. The facts
regarding this issue are not clear from the pleadings.
                                              6
detrimental reliance is proven. See id. at 159-60; see also Harris v. Schonbrun, 773 F.3d

1180, 1185 (11th Cir. 2014). 5

          In sum, we agree with the District Court that the complaint, as filed, does not state

a claim upon which relief may be granted. However, “[w]hen a plaintiff does not seek

leave to amend a deficient complaint after a defendant moves to dismiss it, the court must

inform the plaintiff that he has leave to amend within a set period of time, unless

amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002). The District Court did not give the Shahins an opportunity to

amend their complaint, nor did it indicate that any amendment would be inequitable or

futile.

          We will vacate the District Court’s order and remand so that the District Court can

grant the Shahins an opportunity to file an amended complaint, unless it determines that a


5
  The District Court granted the motion to dismiss with respect to the TILA claim
because, among other things, the loan application was denied by PNC. We have doubts
about the factual predicate of this reasoning, given that, as described above, a letter
attached to the motion for sanctions indicates that the loan was approved by PNC. In any
event, the terms of the regulation and weight of authority suggest that consummation of a
loan is not required for a lender to incur liability under TILA’s disclosure regime. See 12
C.F.R. § 226.5b(b) (“The disclosures and brochure . . . shall be provided at the time an
application is provided to the consumer.”); see also Koons Buick Pontiac GMC, Inc. v.
Nigh, 543 U.S. 50, 53-54 (2004) (“Congress enacted TILA . . . to ‘assure a meaningful
disclosure of credit terms so that the consumer will be able to compare more readily the
various credit terms available to him and avoid the uninformed use of credit’.”);
Dzadovsky v. Lyons Ford Sales, Inc., 593 F.2d 538, 539 (3d Cir. 1979) (per curiam)
(“One of the legislative purposes of [TILA] is to enable consumers to compare various
available credit terms. Any proven violation of the disclosure requirements of the Act is
presumed to injure a borrower by frustrating that purpose.”).

                                                7
curative amendment would be inequitable, futile, or untimely. See Alston v. Parker, 363

F.3d 229, 236 n.10 (3d Cir. 2004).6 Given the record before us, we cannot ascertain

whether it would be futile to amend their TILA claim, and we thus leave that

determination to the District Court in the first instance. But for the reasons stated above,

we conclude that any amendment of their claims pursuant to the FHA and ECOA likely

would be futile, as it does not appear that they will be able to provide any non-conclusory

allegations that support an inference of discrimination. See Port Auth. of N.Y. & N.J.,

768 F.3d at 254.7

       For the foregoing reasons, we will affirm in part, vacate in part, and remand for

further proceedings.8



6
 Any amendment to include an allegation of a violation of RESPA’s § 2604(c) would be
futile, as there is no private cause of action under that section. See Collins, 105 F.3d at
1368.
7
  Given this outcome, we need not discuss in detail the District Court’s denial of the
Shahins’ motion for reargument. See Alston, 363 F.3d at 236 n.10. We note, however,
that the Shahins claimed in the motion that the fact that they were required “to close all
their accounts with the PNC bank including their mortgage . . . was a clear evidence of
discriminatory impact.” App. Vol. II at AA83. While disparate impact claims are
cognizable under the FHA, a plaintiff in such a case must show that the challenged
practices “have a disproportionately adverse effect on minorities and are otherwise
unjustified by a legitimate rationale.” See Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmties. Project, Inc., 135 S. Ct. 2507, 2513, 2525 (2015). The Shahins’
complaint does not contain allegations such that one can infer that PNC’s practices had or
have a disproportionately adverse effect on minorities.
8
  Appellant Nina Shahin’s motion for an extension of time to file a reply brief is hereby
granted. The Clerk is directed to strike the reply brief filed on June 16, 2015, and replace
it with the reply brief received on June 24, 2015, which is signed by both Appellants.
                                              8
