          United States Court of Appeals
                      For the First Circuit

No. 17-1121

               US BANK, N.A., AS LEGAL TITLE TRUSTEE
                  FOR TRUMAN 2013 SC3 TITLE TRUST,

                       Plaintiff, Appellant,

                                v.

                         HLC ESCROW, INC.;
              FIRST AMERICAN TITLE INSURANCE COMPANY,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE
          [Hon. George Z. Singal, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
                 Selya and Lipez, Circuit Judges.


     Benjamin P. Campo, Jr., with whom Douglas McDaniel & Campo
LLC PC was on brief, for appellant.
     David A. Soley, with whom Glenn Israel, James G. Monteleone,
and Bernstein Shur were on brief, for appellee First American Title
Insurance Company.
     Kevin P. Polansky, with whom Christine M. Kingston and Nelson
Mullins Riley Scarborough LLP were on brief, for appellee HLC
Escrow, Inc.


                          April 25, 2018
           LIPEZ, Circuit Judge.          When Sara and Douglas Trask

refinanced their mortgage in 2007, their new mortgage incorrectly

identified a parcel of unimproved land, rather than the adjacent

parcel of improved land that encompassed their residence.            The

current holder of the 2007 mortgage -- US Bank -- sued the closing

agent -- HLC Escrow, Inc. -- and the title insurer -- First

American Title Insurance Company ("First American") -- in 2016.

US Bank's complaint included causes of action for negligence and

"duty of care" against HLC Escrow, and negligence, unilateral

mistake,   and   violation   of   Maine's    Unfair   Claims   Settlement

Practices Act ("UCSPA") against First American. The district court

dismissed the complaint, declining to apply Maine's twenty-year

statute of limitations for personal actions on certain types of

contracts and financial instruments, and further concluding that

Maine's six-year limitations period for civil actions barred the

bank's claims.    See Me. Rev. Stat. Ann. tit. 14, §§ 751, 752.

           We affirm the district court's judgment in substantial

part, vacating only its dismissal of US Bank's UCSPA claim against

First American.    With respect to that claim, we conclude that it

was timely filed, as the claim had yet to accrue when First

American denied US Bank's initial insurance claim in May 2010.

                                   I.

           The Trasks entered into a mortgage agreement with Sun

Mortgage New England, Inc. in February 2005.          The parties agree


                                  - 2 -
that the mortgage encumbered an improved parcel of land along

Stream Road in Winterport, Maine.          In April 2007, the Trasks

refinanced    their   mortgage   with   Home   Loan   Center   Inc.   d/b/a

LendingTree Loans.     The property description in the 2007 mortgage

identifies a far less valuable parcel of unimproved land also along

Stream Road, and also owned by the Trasks.            HLC Escrow acted as

the closing agent for the transaction, and First American insured

the title of the encumbered property. First American also supplied

the legal property description for the mortgage.               Following a

series of assignments, US Bank took ownership of the 2007 mortgage

in March 2014.1

             After defaulting on the 2007 mortgage, the Trasks filed

a Chapter 7 petition for bankruptcy in December 2009. Three months

later, the Trasks filed an adversary complaint against US Bank,

asking the bankruptcy court to limit US Bank's mortgage lien to

the unimproved parcel.     Subsequently, US Bank filed an insurance

claim with First American.       The insurance claim asserted coverage

based on the mortgage's errant identification of the unimproved

parcel.   In its letter denying the insurance claim on May 10, 2010,



     1 The named appellant in this case is technically "US Bank,
N.A., as Legal Title Trustee for Truman 2013 SC3 Title Trust." We
refer to appellant as "US Bank" for simplicity's sake.
Furthermore, we use the term "US Bank" to refer to appellant and
its predecessors in interest when discussing the background facts
of this case, as the transactional history of the mortgage is not
germane to this appeal.


                                   - 3 -
First American explained that the policy did not cover the improved

parcel, and insured only the parcel actually identified by the

mortgage -- that is, the unimproved parcel.   US Bank filed another

insurance claim in early 2011.    First American denied this second

claim in February of that year, offering the same explanation as

it did in denying the first claim.

          On June 10, 2011, the bankruptcy court entered a judgment

concluding that the trustee of the Trasks' bankruptcy estate had

an interest in the improved parcel superior to US Bank's.       The

Bankruptcy Appellate Panel for the First Circuit affirmed that

ruling in December 2011.   See In re Trask, 462 B.R. 268 (B.A.P.

1st Cir. 2011).     US Bank filed a foreclosure action on the

unimproved parcel in December 2013, obtained a favorable judgment

in December 2014, and took title to the unimproved parcel following

a public sale in April 2015.      It then filed its third insurance

claim with First American in February 2016.   First American denied

the claim on May 13, 2016, noting its previous denials, and

reasserting its prior interpretation of the policy.

          US Bank responded to First American's latest denial by

filing suit in state court on August 9, 2016.   As noted above, the

complaint alleges counts of negligence and duty of care against




                                 - 4 -
HLC Escrow,2 and negligence, unilateral mistake, and violation of

the UCSPA against First American.           The UCSPA claim asserts that

First American "failed to effectuate prompt, fair, and equitable

settlement" of US Bank's 2016 insurance claim, "where liability

was reasonably clear," and "knowingly misrepresented to US Bank

pertinent facts or policy provisions relating to coverage at

issue."3      The complaint does not mention US Bank's earlier-filed

insurance claims.

              HLC Escrow removed the case to federal court, and both

defendants filed motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6).          The motions asserted, inter alia, that US

Bank's claims were time-barred by Maine's six-year statute of

limitations for civil actions.          See Me. Rev. Stat. Ann. tit. 14,

§ 752.     First American took the position that US Bank's claims

against it accrued no later than May 10, 2010, the date on which

it   denied    US   Bank's    initial   insurance   claim.   Included   as

attachments to First American's motion to dismiss were copies of

US Bank's 2010 claim letter, First American's letter denying that

claim, and First American's letters denying US Bank's 2011 and



      2While the issue is irrelevant to this appeal, we do not
understand how US Bank's "duty of care" claim is in any way
distinct from its negligence claim against HLC Escrow.
      3This terminology used in US Bank's complaint mirrors the
terms of the UCSPA. See Me. Rev. Stat. Ann. tit. 24-A, § 2436-
A(1)(A), (E).


                                    - 5 -
2016 insurance claims.     First American did not include copies of

US Bank's 2011 and 2016 claim letters.

          US Bank opposed the motions to dismiss by arguing that

Maine's twenty-year limitations period for personal actions on

certain types of contracts and financial instruments applied to

its causes of action against both defendants, making them timely.

See Me. Rev. Stat. Ann. tit. 14, § 751.    As to its claims against

First American, US Bank alternatively argued that Maine's six-year

statute of limitations did not begin to run until First American

denied its 2016 insurance claim. According to US Bank, its initial

2010 insurance claim did not trigger the statute of limitations

because that claim was premature.    The bank did not "experience[]

damages that would demonstrate a cognizable loss" until it took

title to the unimproved parcel in April 2015, following the

foreclosure proceedings.     When it then filed its 2016 insurance

claim, "the scope of US Bank's damages was realized," its insurance

claim "was no longer hypothetical," and "the remedy of payment on

the policy was in place."

          The district court granted the motions to dismiss.     It

rejected US Bank's contention that Maine's twenty-year limitations

period applied, and found all of US Bank's claims barred by the

six-year statute of limitations.    As to the bank's claims against

First American, the district court rejected US Bank's argument

that its claims did not accrue until First American denied its


                                - 6 -
2016 insurance claim.      Without addressing the bank's prematurity

argument, the court reasoned that the limitations period was not

"tolled or extended every time US Bank filed the same claim and

received a denial on the same basis from [First American]."                 US

Bank, N.A. v. HLC Escrow Inc., No. 1:16-cv-00453, 2016 WL 7480269,

at *3 (D. Me. Dec. 29, 2016).

             On appeal, US Bank contends that the district court erred

by failing to apply Maine's twenty-year statute of limitations.

It   again   alternatively   argues     that   its   claims     against   First

American were timely even under a six-year limitations period

because those claims had yet to accrue when First American denied

its initial insurance claim in May 2010.

                                       II.

             We review de novo a district court's Rule 12(b)(6)

dismissal of a complaint for failure to state a claim based on the

statute of limitations.      See Santana-Castro v. Toledo-Davíla, 579

F.3d 109, 113 (1st Cir. 2009).         Conducting this review requires us

to "accept as true all well-pleaded facts in the complaint and

draw all reasonable inferences in favor of the plaintiff[]."

Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st

Cir.   2009).     In   addition   to    the   complaint,   we    may   consider

documents "incorporated into the movant's pleadings," so long as

"they are undisputed" and are "central to" the plaintiff's claims.

In re Citigroup, Inc., 535 F.3d 45, 52 (1st Cir. 2008); see also


                                   - 7 -
Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 135

(1st Cir. 2017).4

A. Maine's Twenty-Year Statute of Limitations

          Civil     actions   in   Maine   are   subject    to   a   six-year

limitations period, unless otherwise provided.        See Me. Rev. Stat.

Ann. tit. 14, § 752.     One exception to this rule is section 751,

title 14, of Maine Revised Statutes, which provides a twenty-year

limitations   period    for    "personal    actions    on    contracts     or

liabilities under seal, promissory notes signed in the presence of

an attesting witness, or on the bills, notes or other evidences of

debt issued by a bank." There is no question that the 2007 mortgage

falls within the category of documents enumerated by section 751.

The issue is whether this case constitutes a "personal action[]

on" the mortgage.      Me. Rev. Stat. Ann. tit. 14, § 751 (emphasis

added).   US Bank contends that its case is "on" the mortgage

because its claims relate to, and revolve around, that document.

A long history of Maine case law forecloses this position.

          In Young v. Weston, the plaintiff sued to enforce a

memorandum in which the defendant had promised to make payments on

a note referenced in the document.          39 Me. 492, 493-94 (1855).

The court held that the memorandum constituted a "separate promise"


     4 The district court invoked this rule when it relied upon
the letters attached to First American's motion to dismiss. See
US Bank N.A., 2016 WL 7480269, at *2 n.5. US Bank does not dispute
the court's application of this rule.


                                   - 8 -
from the note itself, and therefore came within neither the "spirit

nor letter" of the twenty-year limitations provision.    Id. at 495;

see also Bunker v. Ireland, 17 A. 706 (Me. 1889) (holding that a

suit against a guarantor of a note was not subject to the twenty-

year limitations period).    Likewise, in Portland Savings Bank v.

Shwartz, the Maine Law Court held that an action against an

endorser to a note was not an action on the note itself, making

the twenty-year limitations period inapplicable.    196 A. 405, 406

(Me. 1938).   The endorser's contract was "distinct from that of

the maker of the note," causing it to "not come within the

exception of the statute applicable to witnessed notes."    Id.

           A more recent Law Court case similarly declined to extend

the state's twenty-year limitations period to cases that merely

relate to a mortgage.   In U.S. Bank National Association v. Adams,

a bank sought to place an equitable lien on a brother's interest

in a property after his sister signed a mortgage encumbering her

jointly-held interest in the same.     102 A.3d 774, 776 (Me. 2014).

The court rejected the bank's argument that its claim was "based

on the note and mortgage" for purposes of section 751, because the

claim was "not an action to enforce the contested note."     Id. at

776 n.2.   Instead, the action involved an equitable claim against

the brother's interest in the property, and the brother was not a

party to the note.   Id.




                               - 9 -
            These cases make plain that US Bank's claims are not

"on" the 2007 note and mortgage.           Its claims arise from the

obligations created by its relationships with the closing agent

and title insurer. Those obligations surely relate to the mortgage

in some respects, but that is not enough.           The district court

correctly followed over a century and a half of Maine case law

limiting the twenty-year limitations period to personal actions to

enforce qualifying instruments.

            We thus affirm the district court's judgment dismissing

US Bank's claims against HLC Escrow, as US Bank does not argue

that those claims are timely under Maine's six-year statute of

limitations.      This leaves only the question of whether US Bank's

claims against First American are timely under that limitations

period.

B. Maine's Six-Year Statute of Limitations

            The district court treated US Bank's unilateral mistake,

negligence, and UCSPA claims against First American as a group,

and found that all three accrued, at the latest, when First

American denied US Bank's initial insurance claim on May 10, 2010

-- just more than six years before US Bank filed suit on August 9,

2016.     That group approach to the timeliness issue ignored some

important differences in the causes of action.

            The   unilateral   mistake    and   negligence   claims   are

unrelated to First American's denials of US Bank's insurance


                                 - 10 -
claims.   Those two causes of action pertain to First American's

alleged provision of the incorrect property description at the

mortgage closing.   Count II of US Bank's complaint asserts that

First American mistakenly provided the legal property description

for the unimproved parcel of land, while Count III alleges that

First American negligently provided that property description.        On

the other hand, US Bank's UCSPA claim, set forth in Count I,

derives from First American's allegedly wrongful denial of an

insurance claim. The complaint alleges that First American "failed

to effectuate prompt, fair, and equitable settlement" of US Bank's

2016 insurance claim, "where liability was reasonably clear," and

"knowingly misrepresented to US Bank pertinent facts or policy

provisions relating to coverage at issue."           As these causes of

action are based on different events, US Bank's UCSPA claim is

subject to a different statute of limitations analysis than are

its unilateral mistake and negligence claims.

          1. Unilateral Mistake and Negligence

          US   Bank's   unilateral   mistake   and    negligence   claims

accrued on the date of the mortgage closing in 2007, or -- at the

latest -- when US Bank discovered that the mortgage property

description was incorrect.      The claims are untimely in either

event.

          Negligence actions accrue under Maine law "'when the

plaintiff sustains harm to a protected interest,' i.e., when a


                               - 11 -
plaintiff is 'entitled to seek judicial vindication.'"              Miller v.

Miller, 167 A.3d 1252, 1256 (Me. 2017) (quoting McLaughlin v.

Superintending Sch. Comm., 832 A.2d 782, 788 (Me. 2003)).                For a

limited number of tort actions, however, Maine commences the

statute of limitations period when the plaintiff discovered, or

should   have    discovered,   her    injury.      See   Johnston   v.   Dow   &

Coulombe, Inc., 686 A.2d 1064, 1066 (Me. 1996).            As for unilateral

mistake actions, the Law Court has yet to address whether the

limitations period runs from the time the mistake was made, or

from the time the plaintiff discovered the mistake.5

           We do not need to determine whether the discovery rule

applies to unilateral mistake actions under Maine law, or whether

US Bank could somehow benefit from that rule in the negligence

context.   US Bank could have discovered First American's allegedly

mistaken   and    negligent    provision      of   the   mortgage    property

description no later than March 17, 2010, when the Trasks filed

their adversary complaint to limit US Bank's mortgage lien to the

unimproved parcel.     As this date falls more than six years before

US Bank filed suit on August 9, 2016, its unilateral mistake and



     5 Other jurisdictions appear to be divided on this issue. See
generally Diematic Mfg. Corp. v. Packaging Indus., Inc., 412 F.
Supp. 1367, 1373 (S.D.N.Y. 1976) (stating that under New York law,
an action based upon mistake accrues at "the time the alleged
mistake occurs"); State Dep't of Transp. v. Eighth Judicial Dist.
Court, 402 P.3d 677, 683 (Nev. 2017) (en banc) (applying the
discovery rule to a unilateral mistake action).


                                     - 12 -
negligence actions are time-barred by the six year statute of

limitations.

             2. The UCSPA

             The district court dismissed US Bank's UCSPA claim on

the ground that the cause of action accrued when First American

denied US Bank's 2010 insurance claim.         In challenging this

conclusion, US Bank renews the argument that First American's

denial of its 2010 insurance claim could not have triggered the

statute of limitations because the bank "had not experienced

damages that would demonstrate a cognizable loss" at that time.6

We agree.

             Under Maine law, a cause of action ordinarily does not

accrue until the plaintiff incurs a judicially cognizable injury.

See, e.g., McLaughlin, 832 A.2d at 788; Johnston, 686 A.2d at 1065-

66.       Here, the alleged injury is First American's refusal to

indemnify US Bank for a loss covered by the bank's title insurance

policy.     An insurer's duty to indemnify -- that is, to compensate

its insured for a loss -- generally does not arise until the

insured incurs a covered loss or liability.      See Cambridge Mut.


      6US Bank also argues that its 2010 claim did not trigger the
limitations period because that claim invoked First American's
duty to defend, while its 2016 insurance claim invoked the
insurer's duty to indemnify. Though we agree that an insurer's
refusal to defend and its refusal to indemnify are distinct events
under Maine law, see, e.g., Harlor v. Amica Mut. Ins. Co., 150
A.3d 793, 801 (Me. 2016), US Bank waived this argument by failing
to raise it before the district court.


                                - 13 -
Fire Ins. Co. v. Perry, 692 A.2d 1388, 1391 n.3 (Me. 1997).                  In

cases    involving   a   mortgagee's    title    insurance    policy,       the

mortgagee incurs a loss when "the security for the loan proves

inadequate to pay off the underlying insured debt due to the

presence of undisclosed defects."        Hodas v. First Am. Title Ins.

Co., 696 A.2d 1095, 1097 (Me. 1997); see also 11A Steven Plitt et

al., Couch on Insurance § 159:6 (3d ed. 2017).7         Hence, a cause of

action based on a title insurer's refusal to indemnify a mortgagee

will ordinarily accrue, at the earliest, when the mortgagee's

security   "proves   inadequate,"      thus   establishing   a     loss    that

triggers the insurer's duty to indemnify.

           The   security   for   US   Bank's   loan   had   yet    to    prove

inadequate when First American rejected its 2010 insurance claim.

At that point, US Bank was engaged in an adversary proceeding

against the Trasks.      At issue in that proceeding was whether the

bank's mortgage interest extended to the improved parcel, or was

instead limited to the less valuable unimproved parcel.                   If US

Bank had prevailed in arguing that the mortgage encumbered the

improved parcel, its security would presumably have been adequate

to cover the Trasks' debt.    US Bank thus did not incur a loss until



     7 In contrast, a property owner's title insurance policy
"protects the value of an owner's fee interest" such that "[t]he
presence of a title defect immediately results in a loss . . .
since resale value will always reflect the cost of removing the
defect." Hodas, 696 A.2d at 1097.


                                  - 14 -
-- at the earliest -- the bankruptcy court rejected its position

and entered judgment in 2011 finding that the bank's mortgage

encumbered     only    the   unimproved        parcel.      Accordingly,   First

American's denial of US Bank's earlier-filed insurance claim could

not have served as the accrual date for its UCSPA cause of action.

That cause of action accrued no earlier than the close of the

adversary     proceeding,       which    falls     within      Maine's   six-year

limitations period.

             We thus must vacate the district court's dismissal of US

Bank's UCSPA claim and remand for further proceedings on that

claim.8   In so doing, we do not need to determine the precise date

on which the security for US Bank's loan "prove[d] inadequate,"

thus triggering a loss.       Hodas, 696 A.2d at 1097.           US Bank's UCSPA

claim was timely for statute of limitations purposes regardless of

whether its loss occurred at the close of the adversary proceedings

in 2011, or, as it argues, when it later took possession of the

unimproved parcel.

                                        III.

             For the reasons discussed above, we affirm in part and

vacate in part the district court's judgment.               We affirm as to the

dismissal    of   US   Bank's    claims    against       HLC   Escrow,   and   its


     8 In First American's motion to dismiss and in its brief on
appeal, the statute of limitations was the only defense it raised
against US Bank's UCSPA claim. We take no view on the viability
of any other defenses going forward.


                                    - 15 -
unilateral mistake and negligence claims against First American.

We vacate the dismissal, and remand for further proceedings, with

respect to US Bank's UCSPA claim against First American.

           US Bank and First American shall bear their own costs on

appeal.   HLC Escrow's costs shall be taxed to US Bank.

           So Ordered.




                              - 16 -
