     Case: 11-10492     Document: 00511670601         Page: 1     Date Filed: 11/18/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        November 18, 2011

                                     No. 11-10492                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



P. Chyba

                                                  Plaintiff-Appellant
v.

EMC Mortgage Corporation

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-123


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        The pro se appellant challenges the district court’s dismissal of his suit,
without prejudice, as time barred and for failure to state a claim. For the
reasons given below, we affirm.
        In 2005, Plaintiff took out four loans to purchase two properties in Texas.
Plaintiff is apparently now delinquent on his payments and at risk of
foreclosure. He filed suit against the present servicer of his loan, the Defendant-


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-10492    Document: 00511670601       Page: 2   Date Filed: 11/18/2011



                                   No. 11-10492

Appellee, on at least twelve distinct claims. He also asserted a right to collect
against at least eight other defendants–including “Lender(s)”, “Attorney(s)”,
“Broker(s)”, etc.–though he did not name them in the caption of the suit and did
not serve them with process.
      Most of Plaintiff’s claims allege fraud and malfeasance in obtaining his
home loan, including statutory claims under the Truth in Lending Act, 15 U.S.C.
§ 1640(e), and the Real Estate Settlement Procedures Act, 12 U.S.C. § 2607 et
seq. Appellee was apparently not involved in the loan origination process–it does
not make loans and only services the loan on behalf of the present loan owner,
who apparently purchased it from the initial originator. Appellant alleged no
specific claims of wrongdoing on the part of Defendant. Many of Plaintiff’s
claims are simply nonsensical, claiming, for instance, that Defendant “lacks
agency” to service his loans because “the alleged assignment of standing to
enforce the notes to Current Servicer is a fraud on the court as said instrument
fails to identify the real party in interest and does not contain evidence, affirmed
and verified by the current principal on the notes granting agency to Current
Servicer,” (R. 17). Likewise, Plaintiff alleged that Defendant is somehow liable
because his original lender “gave partial disclosure to Plaintiff concerning the
value of the properties, and the condition of the real estate market[,] [but] failed
to give full disclosure to Plaintiff concerning the true value of the properties, the
then current risks and trends of the real estate market toward market
instability, and the then current credit available to Plaintiff.” (R. 9) (emphasis
in original).
      Defendant filed for dismissal under Rule 12(b)(6), or in the alternative for
a more definite statement under Rule 12(e). Plaintiff did not respond to the
motion. The district court held a status conference the day before it granted the
motion. The district court then granted the motion because Plaintiff’s statutory
claims were well past their 1 or 3 year limitation periods; Plaintiff obtained his

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                                  No. 11-10492

loans in 2005 and alleged no facts supporting an equitable tolling argument.
The district court also found the claims of fraud were not pled with sufficient
particularity under Rules 8 and 9. Finally, it found Plaintiff’s vague allegations
of malfeasance by a global group of unspecified “defendants”–without alleging
any particular acts by the present Defendant–provided an additional reason to
dismiss the suit.
      Importantly, Defendant filed no counterclaim, and Plaintiff’s claims were
dismissed without prejudice. Thus, to the extent that Plaintiff has valid claims
that cannot be garnered from his complaint but which should, for instance,
prevent a foreclosure, the district court’s order does not preclude Plaintiff from
raising those issues in a future proceeding.
      For these reasons, and for the reasons given by the district court in its
careful order of April 15, 2011, we affirm.
      AFFIRMED




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