                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1680
                                      ____________

                               JACKIE STEFANOWICZ,
                                              Appellant

                                             v.

                       SUNTRUST MORTGAGE; SPECIALIZED
                                LOAN SERVICING
                        __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 3-16-cv-00368)
                            District Judge: A. Richard Caputo
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 24, 2018

            Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges

                             (Opinion filed March 29, 2019)
                                    ____________

                                        OPINION*
                                      ____________


PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jackie Stefanowicz appeals from an order of the District Court dismissing her

amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the

reasons that follow, we will affirm.

       Stefanowicz obtained a loan from SunTrust Mortgage in February 2007,

memorialized by a note and secured by a mortgage against her property located at 311

New Street, Duryea, Pennsylvania. The original amount of her loan was $54,000.00. On

January 5, 2015, the mortgage was assigned from SunTrust to Specialized Loan Servicing

(“SLS”). In 2015, Stefanowicz sought and obtained a new loan modification from SLS.

       On March 1, 2016, Stefanowicz filed two pro se in forma pauperis civil actions in

the United States District Court for the Middle District of Pennsylvania, involving the

origination and servicing of the mortgage loan. Between them, the two complaints

alleged violations of the Truth in Lending Act (“TILA”), the Home Ownership and

Equity Protection Act (“HOEPA”), the Real Estate Settlement Procedures Act

(“RESPA”), the Fair Housing Act (“FHA”), and the Equal Credit Opportunity Act

(“ECOA”), in connection with the 2007 mortgage and 2015 loan modification. The

complaints also asserted state law claims of predatory lending practices, intentional

infliction of emotional distress, and unjust enrichment, among others.

       Stefanowicz alleged specifically that the defendants violated these statutes by

failing to cooperate in her efforts to secure a loan modification or to extend a forbearance

agreement, failing to properly credit her escrow account for expenses she paid directly,

reporting inaccurate credit information about her to national credit bureaus, and

discriminating against her because she is poor, a woman with a child and white, and is

                                             2
neither a military veteran nor disabled. Specifically, she alleged that, in August 2014,

following a period of unemployment, she entered into a three-month forbearance

agreement with SunTrust with the understanding that, if she continued to have financial

difficulties, the forbearance period could be extended or her loan payment terms could be

modified. She alleged that when she later sought to obtain such additional relief from her

mortgage payment obligations, SunTrust failed to return her telephone calls or, when she

was able to speak with customer service representatives on the phone, failed to provide

her with the forbearance or loan modification application forms she requested. After the

mortgage loan was assigned to SLS, Stefanowicz entered into a three-month agreement

with SLS under which she made three payments of approximately $500 per month

toward her mortgage loan in September, October, and November 2015. When she

attempted to contact SLS to extend this arrangement and obtain a new monthly payment

amount, SLS failed to return her calls. Stefanowicz alleged that, on multiple occasions,

she returned home to find notices affixed to her front door advising her that someone had

been on the property and directing her to contact SLS. Each time, she called SLS and left

a voicemail message, without any response from SLS. In February 2016, when

Stefanowicz investigated refinancing with another mortgage lender, she learned that her

credit report stated that her mortgage was approximately $1,000 past due, an allegedly

inaccurate figure.

       The two civil actions were consolidated pursuant to Federal Rule of Civil

Procedure 42(a)(2). The defendants then moved to dismiss the consolidated action

pursuant to Federal Rule of Civil Procedure 12(b)(6). In the course of assessing the

                                             3
complaints for possible dismissal under that rule and 28 U.S.C. § 1915(e)(2), the

Magistrate Judge examined the publicly recorded mortgage and assignment of mortgage,

and the record from an earlier and unsuccessful in forma pauperis civil action filed by

Stefanowicz against SunTrust, see Stefanowicz v. SunTrust Mortgage, D.C. Civ. No. 10-

cv-01321, in which she had made similar allegations. We note that Stefanowicz’s 2010

civil action, which was filed against SunTrust only, was dismissed for lack of federal

subject matter jurisdiction. Among other things, Stefanowicz could not satisfy the

$75,000 amount-in-controversy requirement for diversity jurisdiction, see 28 U.S.C. §

1332(a).

       The Magistrate Judge recommended in his Report and Recommendation that

Stefanowicz’s 2016 complaint raising TILA and HOEPA claims, which concerned the

adequacy of disclosures made in connection with the origination of her mortgage in

February 2007, be dismissed as barred by, in pertinent part, the applicable statutes of

limitation and repose. The TILA and the HOAPA, which is an amendment to the TILA,

have a one-year statute of limitations that begins to run from the date the loan closed, 15

U.S.C. § 1640(e). Claims for rescission under the TILA and the HOEPA are subject to a

three-year statute of repose. Id. at § 1635(f). Stefanowicz’s 2016 complaint was thus

plainly time-barred. The Magistrate Judge also recommended dismissing as time-barred

Stefanowicz’s 2016 complaint raising RESPA, ECOA, and FHA claims arising out of the

2007 origination of the mortgage loan, noting that the RESPA has a three-year statute of

limitations, 12 U.S.C. § 2614; the ECOA has a five-year statute of limitations, 15 U.S.C.

§ 1691e(f); and the FHA has a two-year statute of limitations, 42 U.S.C. § 3613(a)(1)(A).

                                             4
       The Magistrate Judge further recommended that Stefanowicz’s timely RESPA

claims, which concerned a failure by SunTrust and SLS to respond to her telephone calls

or mail her certain requested forms, and failure to properly credit her escrow account, be

dismissed. The Magistrate Judge reasoned in the main that RESPA requires a showing of

actual damages and, in addition, only requires a loan servicer to respond to a “qualified

written request” relating to the dispute regarding the borrower’s payments. Stefanowicz

had made no such “qualified written request,” 12 U.S.C. § 2605(e)(1)(B), and had not

alleged actual damages, id. at § 2605(f); moreover, the 60-day moratorium under §

2605(e)(3) against placing derogatory information on the borrower’s credit report is only

triggered by a “qualified written request.” The Magistrate Judge further determined that

Stefanowicz’s RESPA claim with respect to her allegation that the defendants failed to

properly credit her escrow account fell outside the scope of § 2605(g) because she did not

allege that they failed to timely pay any expenses from her escrow account and/or failed

to timely refund any remaining balance after she paid off her loan.

       The Magistrate Judge recommended that Stefanowicz’s timely ECOA and FHA

claims be dismissed because her allegations of discrimination were conclusory.

Moreover, since she was in default at the time of the alleged discrimination, the

defendants’ failure to allow her to modify her loan could not constitute a prohibited

“adverse action” under the ECOA, see 15 U.S.C. § 1691(d)(6) (“adverse action” … “does

not include a refusal to extend additional credit under an existing credit arrangement

where the applicant is delinquent or otherwise in default….”). The Magistrate Judge

recommended that Stefanowicz’s FHA claim be dismissed because, again, her allegations

                                             5
of discrimination were conclusory and she failed to allege facts from which a reasonable

inference could be drawn that she was denied a loan modification because of her

membership in a protected class. Nevertheless, the Magistrate Judge recommended that

Stefanowicz be granted leave to amend with respect to her timely RESPA, ECOA, and

FHA claims arising out of her attempts to obtain a loan modification or an extended

forbearance agreement in 2014 and/or 2015.

       In an order entered on March 22, 2017, the District Court adopted the Magistrate

Judge’s Report and Recommendation, dismissing Stefanowicz’s untimely TILA and

HOEPA claims with prejudice, dismissing her untimely RESPA, ECOA, and FHA claims

arising out of the 2007 origination of her mortgage loan with prejudice, and dismissing

her timely RESPA, ECOA, and FHA claims arising out of her attempts to obtain a loan

modification or an extended forbearance in 2014 or 2015 without prejudice. Stefanowicz

was granted leave to amend as to the latter claims. The District Court further declined to

exercise supplemental jurisdiction over Stefanowicz’s state law claims.

       Stefanowicz then filed an amended complaint on April 7, 2017, in which she

attempted to cure only the deficiencies in her RESPA and ECOA claims arising out of

her attempts to obtain a loan modification or an extended forbearance in 2014 or 2015.

Stefanowicz alleged that she paid down the principal on her mortgage note to

approximately $47,000.00 before the loan was sold to SLS. Following a loan

modification in January 2017, the principal balance of her loan was $60,046.26. It also

took SLS seven months to process the loan modification, which Stefanowicz alleged was

“deceptive.” Then, beginning in February, 2017, when she attempted to make her

                                             6
monthly payments, she was charged extra fees. She alleged further that an additional

$200.00, which she sought to have applied toward the principal, was applied by SLS to

other charges and the defendants did not produce statements “showing the extra fees.”

Her credit report, she alleged, reflected a 120-day delinquency for three months,

notwithstanding that she made the required payments for those three months.

       The defendants moved to dismiss the amended complaint. SunTrust argued that

Stefanowicz had alleged the same facts that the Magistrate Judge had already determined

did not support any claim, and that the only new actions alleged by Stefanowicz in her

amended complaint concerned actions taken by SLS in 2017. SLS argued that, once

again, Stefanowicz had failed to allege sufficient facts to show a violation of the ECOA

or that SLS’s duties under RESPA were triggered. Stefanowicz submitted a written

response in opposition to the defendants’ motions.

       The Magistrate Judge newly assigned to the case submitted a Report and

Recommendation, in which he concluded that Stefanowicz’s amended complaint should

be dismissed. The Magistrate Judge observed that, instead of correcting the deficiencies

identified by the District Court in dismissing her timely ECOA and RESPA claims

without prejudice, Stefanowicz had in a cursory fashion alleged a new array of loan

servicing complaints concerning events that occurred in 2017 that were unrelated to the

matters set forth in her original complaints. The Magistrate Judge thus recommended

that the amended complaint be dismissed for failure to state a claim upon which relief

may be granted, reasoning in pertinent part that SunTrust assigned the mortgage in 2015

and thus could not be liable for any loan servicing complaints that arose after that date;

                                             7
and that Stefanowicz’s RESPA and ECOA claims against SLS were deficient as a matter

of law. In an order entered on March 19, 2018, the District Court adopted the Report and

Recommendation, granted the defendants’ motions, and dismissed Stefanowicz’s

amended complaint.

       Stefanowicz appeals pro se. We have jurisdiction under 28 U.S.C. § 1291. We

may affirm the judgment of the District Court on any basis which finds support in the

record. See Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980). In her pro se

brief, Stefanowicz contends that the District Court ignored her supporting evidence of

discrimination and predatory lending practices, and ignored her request for credit repair.

Appellant’s Informal Brief, at 1. She contends, for the first time, that the District Court

should have granted her relief under the Fair Credit Reporting Act (“FRCA”), 15 U.S.C.

§ 1681, id. at 5. Stefanowicz also submitted an addendum to her pro se brief, in which

she notes recent correspondence from SLS.

       We will affirm. Section 1915(e)(2)(B) of title 28 directs district courts to sua

sponte dismiss any in forma pauperis complaint claim that is frivolous, malicious, fails to

state a claim on which relief may be granted, or seeks monetary relief from a defendant

who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Here, the District Court

determined that the complaint and amended complaint could not proceed under §

1915(2)(B)(ii) and Rule 12(b)(6). A Rule 12(b)(6) motion tests the sufficiency of the

factual allegations contained in the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183

(3d Cir. 1993). A motion to dismiss based on Rule 12(b)(6) should be granted if the

plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on its

                                               8
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although factual

averments must be accepted as true, legal conclusions are disregarded. See Fowler v.

UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

       The TILA seeks to protect credit consumers by mandating meaningful disclosure

of credit terms. See Rossman v. Fleet Bank (R.I.) Nat’l Ass’n, 280 F.3d 384, 390-91 (3d

Cir. 2002). The HOEPA makes mortgage lenders liable for extending credit “without

regard to the consumers’ repayment ability, including the consumers’ current and

expected income, current obligations, and employment.” See In re Laudani: Laudani v.

Tribeca Lending Corp., 401 B.R. 9, 32 (Bankr. D. Mass. 2009) (quoting 15 U.S.C. §

1639(h)). The RESPA requires lenders to refrain from collecting unearned closing fees

and kickbacks; compels lenders to disclose to borrowers the fact that servicing on their

loans may be transferred; and requires loan servicers to respond in a timely fashion to

“Qualified Written Requests” from borrowers seeking information regarding the status of

home loans. 12 U.S.C. §§ 2605, 2607. The ECOA bars discrimination on the basis of

race, color, religion, national origin, sex, marital status, age, or the fact that the

applicant’s income is derived from public assistance. See National State Bank v. Long,

630 F.2d 981, 984 (3d Cir. 1980) (citing 15 U.S.C. § 1691(a)(1), (2)). The FHA prohibits

any person or entity “whose business includes engaging in residential real estate-related

transactions to discriminate against any person in making available such a transaction, or

in the terms or conditions of such a transaction, because of race, color, religion, sex,

handicap, familial status, or national origin.” 42 U.S.C. § 3605.

       We agree with the District Court that dismissal of Stefanowicz’s 2016 original

                                                9
complaints was proper to the extent that they raised claims under the TILA, HOEPA,

RESPA, ECOA, and FHA arising out of the 2007 origination of her mortgage loan. The

2016 original complaints are barred by the applicable statutes of limitation and repose,

for the reasons given by the Magistrate Judge. A statute of limitations defense may be

raised in a motion to dismiss where the defense is apparent on the complaint’s face. See

Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). The District Court also properly

dismissed the FHA claim stated in Stefanowicz’s original complaint. Again, as explained

by the Magistrate Judge, Stefanowicz did not allege sufficient facts to support a claim of

discrimination under the FHA. She alleged that she is a white female, a parent with a

minor child, and that she is poor, but she failed to allege facts from which a reasonable

inference could be drawn that she was denied a loan modification because of her

membership in a protected class.

       Similarly with respect to Stefanowicz’s ECOA claim in her amended complaint,

there was a failure to allege any factual matter or plausible basis to establish an ECOA

claim. To establish a prima facie case under the ECOA, a plaintiff must show that (1) she

was a member of a protected class; (2) she applied for credit from the defendant; (3) she

was qualified for the credit; and (4) despite qualifying, she was denied credit. See

Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 268 n.5 (3d Cir. 2010). A

plaintiff may support an assertion of discrimination by showing that the defendant “has

treated more favorably similarly situated persons not within the protected class.” Jones v.

School Dist. of Philadelphia, 198 F.3d 403, 413 (3d Cir. 1999). In her amended

complaint, Stefanowicz asserted only a conclusory statement that “treatment is disparate

                                            10
and the impact is disparate.” This is insufficient to show that other similarly situated

persons who are not members of a protected class were treated more favorably when they

applied for a loan modification. Furthermore, in her original complaint Stefanowicz did

not plausibly allege that the defendants declined to extend her credit for a discriminatory

reason. We note, for example, that the ECOA prohibits discrimination against applicants

who receive income from a public assistance program, 15 U.S.C. § 1691(a)(2), but

Stefanowicz did not allege that she received such public assistance income; she alleged

only that her financial condition at the relevant time was that of “poverty.” Thus, the

District Court’s dismissal of the ECOA claim in the amended complaint for failure to

state a claim was proper.

       The District Court also properly dismissed Stefanowicz’s RESPA claim in her

amended complaint for failure to state a claim. The RESPA permits individual borrowers

to sue loan servicers for damages when they fail to comply with any of their RESPA

duties, in pertinent part, in “an amount equal to the sum of -- (A) any actual damages to

the borrower as a result of the failure….” 12 U.S.C. § 2605(f). Even assuming that

somewhere along the way Stefanowicz complied with the RESPA’s “qualified written

request” requirement, at no time has she alleged sufficient facts to show that she suffered

actual damages as a result of the defendants’ alleged failures. Stefanowicz’s amended

complaint simply recited the following concerning her RESPA claim: “With respect to

RESPA not sending or providing information. In addition, not providing information

when asked. Not producing statements showing the extra fees.” Because she failed to

assert facts that meet the essential actual damages element of a claim under the RESPA

                                             11
and because the District Court provided her with an opportunity to correct the

deficiencies in her RESPA claim, the Court properly ultimately dismissed it with

prejudice.

       Turning to her final argument, even though we have consistently held that we will

not consider issues that are raised for the first time on appeal, see Harris v. City of

Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994), it is apparent that Stefanowicz cannot state

a claim under the FCRA, 15 U.S.C.§ 1681s-2(b). Under the FCRA, consumers notify

consumer credit reporting agencies about inaccuracies in their credit reports. The duties

imposed under § 1681s-2(b)(1)(A)-(E) are triggered only after a furnisher of information

receives notice from a consumer reporting agency about a dispute. See SimmsParris v.

Countrywide Financial Corp., 652 F.3d 355, 358 (3d Cir. 2011) (notice “must be given

by a credit reporting agency, and cannot come directly from the consumer”). A consumer

may certainly notify a furnisher/creditor directly about her dispute, as Stefanowicz has

done, but there is no private cause of action under § 1681s-2(b) for a furnisher’s failure to

properly investigate such a dispute.

       For the foregoing reasons, we will affirm the orders of the District Court granting

the defendants’ motions and dismissing the original and amended complaints.1



1
  In her pro se brief, Stefanowicz asks us for this relief: “Ask Specialized Loan Servicing
to substantiate that if they obtain the mortgage from SunTrust Mortgage around
$47000.00+ (did not pay the homeowner’s policy which was escrowed); how did the loan
modification offer amount to $61000.00+.” Appellant’s Pro Se Brief, at 6. Because we
are upholding the decision of the District Court, we cannot provide the requested relief,
but we note that on May 17, 2018, SLS wrote to Stefanowicz that it may not have
previously provided her with a copy of three valuations from 2015 and 2016 that were
                                              12
used in reviewing her account for loss mitigation assistance. She was invited to log on to
their website to view and obtain copies of these valuations.
                                            13
