FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

October 9, 2008

FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

JEFFREY HEIL; PAULA HEIL,

No. 07-4224
(D.C. No. 2:06-CV-785-PGC)
(D. Utah)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.

Jeffrey and Paula Heil appeal the district courts grant of summary
judgment to Wells Fargo Bank, N.A., on their claim under the Truth in Lending
Act (TILA), 15 U.S.C. 1601 et seq., and dismissal without prejudice of their
supplemental state-law claims. The Heils argue that the district court (1) erred in
holding that their TILA claim was barred by the statute of limitations and was not

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

equitably tolled and (2) abused the courts discretion in not exercising
supplemental jurisdiction over their state-law claims. We affirm.
I.
On January 13, 1995, the Heils refinanced a loan with Crossland Mortgage,
Inc. A deed of trust on a Utah parcel of land owned by the Heils secured the
loan. Crossland merged with Wells Fargo, and the Heils began making their
payments to Wells Fargo on December 1, 2000.
In their complaint and in affidavits, the Heils contended that in 2001, Wells
Fargo paid property taxes that were not owed, that were in excess of its secured
interest, and that were for property not secured by the deed of trust. Also, they
asserted that Wells Fargo did not apply a loan payment they made on January 17,
2001, until July 3, 2003, and began foreclosure proceedings on their land and
charged them foreclosure, late, and attorneys fees, all due to failure to apply the
payment. The Heils further asserted that Wells Fargo has never credited any of
the fees imposed, because every reinstatement quotation included these fees. In
addition, the Heils maintained that Wells Fargo has never credited the improperly
paid property taxes. They contend that although they notified Wells Fargo about
its errors, it refused to cooperate. As a result of these actions by Wells Fargo, the
Heils alleged that they were forced to file for bankruptcy on October 30, 2003. 1

On January 23, 2006, the bankruptcy court issued a plan of reorganization,

On March 16, 2006, the Heils filed suit in federal district court in
California alleging violations of the TILA and state-law claims of breach of
contract, fraud, negligence, and breach of the implied covenant of good faith and
fair dealing. After the case was transferred to federal district court in Utah, Wells
Fargo moved to dismiss the TILA claim under Fed. R. Civ. P. 12(b)(6), alleging
that it was barred by the TILAs one-year statute of limitations, 15 U.S.C.
1640(e). Wells Fargo moved to dismiss the state claims, alleging that the
district court should not exercise supplemental jurisdiction over them.
Because the parties relied on matters outside the pleadings, the court
treated the motion to dismiss as a motion for summary judgment. The court
found that the TILA claim was barred by the statute of limitations and that the
Heils failed to show any material issues of fact tending to show the statute of
limitations should be equitably tolled. Accordingly, the court concluded that
Wells Fargo was entitled to judgment as a matter of law on the TILA claim and
dismissed that claim with prejudice. After concluding that the Heils failed to
show that the state claims arose under federal law, the court declined to exercise
supplemental jurisdiction and dismissed them without prejudice.

(...continued)
providing, in part, that the parties would resolve matters concerning Wells Fargo
outside of the bankruptcy proceedings.
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II.
Before proceeding to the merits, we note that the parties failed to provide
us with the record required by Tenth Circuit Rules. Under Rule 10.3(D)(2),
[w]hen the appeal is from an order disposing of a motion or other
pleading, the motion, relevant portions of affidavits, depositions and
other supporting documents (including any supporting briefs,
memoranda, and points of authority), filed in connection with that
motion or pleading, and any responses and replies filed in connection
with that motion or pleading must be included in the record.
Neither parties appendix contains the motion to dismiss or the memorandum
supporting it, the reply, or the supplemental filings. 2 Wells Fargo provides the
response, and both parties provide some exhibits.
Th[is] court need not remedy any failure by counsel to designate an
adequate record. When the party asserting an issue fails to provide a record
sufficient for considering that issue, the court may decline to consider it. Id. at
10.3(B); see also United States S.E.C. v. Maxxon, Inc., 465 F.3d 1174, 1175 n.1
(10th Cir. 2006) (deciding that appellants who fail to provide record sufficient for
appellate review risk summary dismissal of their claims), cert. denied, 127 S. Ct.
2116 (2007); Travelers Indem. Co. v. Accurate Autobody, Inc., 340 F.3d 1118,
1121 (10th Cir. 2003) ([Our] rules are not empty gestures. We have repeatedly

Although the omitted documents are available electronically, such

enforced them.). Thus, we could summarily affirm the district court. But
because the parties do not dispute what arguments were before the district court
and we do not need the omitted documents to decide the appeal, we proceed to the
merits, relying only on the limited record provided. We remind the parties of
their duties to follow the Tenth Circuit Rules.
III.
A.
The Heils first contend that the district court construed their claims too
narrowly. They point out that they alleged that improper fees were included in
every reinstatement quotation they received from Wells Fargo along with its
demand for improperly paid property taxes, whereas the district court decided that
the violation here is not the failure to credit what are asserted to be improperly
charged fees. Rather, the violation is the asserted improper payment of property
taxes, failure to apply a payment and charging related foreclosure and other fees,
which happened before 2004. Aplt. App. at 45. Contrary to the Heils belief,
the district court did not narrowly construe their claims. Fully aware that the
Heils asserted that every reinstatement quotation included the improper fees, the
court decided that repeating an error was not a continuing TILA violation. Id. at
45-46. 3 Instead, the court held that the statute of limitations started running well

The Heils argue in their reply brief that the Utah district court should have
(continued...)
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over a year before the date on which this action was filed. Id. at 45. As we
discuss below, we agree.
B.
Next, the Heils contend that the district court failed to apply the TILA in
the broad manner intended by Congress. See Littlefield v. Walt Flanagan & Co.,
498 F.2d 1133, 1136 (10th Cir. 1974) (recognizing that TILA is remedial and
must be construed liberally). They maintain the TILAs statute of limitations
should have been equitably tolled, because Wells Fargo refused to correct errors
brought to its attention and those errors continued through the date of the filing of
the complaint. Therefore, they contend that Wells Fargos continued demand for
improper fees violated the TILA and the district court erred in granting summary
judgment on this claim.
We review a district courts decision to grant summary
judgment de novo, viewing all facts in the light most favorable to the
party opposing summary judgment. We will affirm a grant of
summary judgment if there is no genuine issue of material fact and
the prevailing party is entitled to judgment under the law.
Grynberg v. Total, S.A., 538 F.3d 1336, 1346 (10th Cir. 2008) (citation omitted).

(...continued)
considered the fact that the California district court, in granting a preliminary
injunction, ruled in favor of them on the TILA claim. In their response to Wells
Fargos motion to dismiss, however, the Heils conceded that the preliminary
injunction order was not binding. Aplee. Supp. App. at 13.
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An action under the TILA may be brought . . . within one year from the
date of the occurrence of the violation. 15 U.S.C. 1640(e). Violation of the
TILA occurs at a specific time from which the statute will then run. Stevens v.
Rock Springs Natl Bank, 497 F.2d 307, 309 (10th Cir. 1974). Wells Fargos
alleged actions began in 2001, yet the Heils did not file suit until 2006. Thus,
their suit is barred by the one-year limitations period of 1640(e), unless the
statute of limitations has been equitably tolled. See Ellis v. Gen. Motors
Acceptance Corp., 160 F.3d 703, 706-08 (11th Cir. 1998) (citing cases and
recognizing all courts to directly consider issue have decided TILA is subject to
equitable tolling).
Equitable tolling is the doctrine under which plaintiffs may sue after the
statutory time period has expired if they have been prevented from doing so due
to inequitable circumstances. Id. at 706; see Moor v. Travelers Ins. Co.,
784 F.2d 632, 633 (5th Cir. 1986) (requiring plaintiff asserting equitable tolling
to show that the defendants concealed the reprobated conduct and despite the
exercise of due diligence, he was unable to discover that conduct); see also
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ([E]quitable tolling . . . is
only available when [litigants] diligently pursue[ their] claims and demonstrate[]
that the failure to timely file was caused by extraordinary circumstances beyond
[their] control.) (habeas corpus action). The Heils bear the burden of proving

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that the limitations period should be equitably tolled. See Olson v. Fed. Mine
Safety & Health Review Commn, 381 F.3d 1007, 1014 (10th Cir. 2004).
They, however, have failed to meet this burden. There is no dispute that
the Heils were aware of Wells Fargos failure to credit the payment, charging of
various fees, and improper payment of taxes in 2001. See Van Pier v. Long
Island Sav. Bank, 20 F. Supp. 2d 535, 536 (S.D.N.Y. 1998) (deciding equitable
tolling is not available where plaintiff knew of alleged TILA violations more than
year before filing complaint). And we have declined to recognize a continuing
violation for purposes of the statute of limitations under similar circumstances.
See Stevens, 497 F.2d at 309; cf. Katz v. Bank of Cal., 640 F.2d 1024, 1025
(9th Cir. 1981) (Even if a continuing violation theory is viable, the Banks actual
disclosure of the previously undisclosed term commenced the running of the
period of limitations).
The Heils TILA claim was not equitably tolled and thus was barred by the
statute of limitations. The district court therefore correctly decided that Wells
Fargo was entitled to judgment as a matter of law on the TILA claim.
C.
Lastly, the Heils contend that the district court erred in declining to
exercise supplemental jurisdiction over their state-law claims. They believe that
resolution of these claims depends on resolution of a federal-law question
concerning the TILA. The district court, however, found that the Heils failed to
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explain how their state claims required interpretation of the TILA and that the
state claims present legal issues best handled in state court.
We review the district courts decision to decline supplemental
jurisdiction for abuse of discretion. Exum v. U.S. Olympic Comm., 389 F.3d
1130, 1139 (10th Cir. 2004). Under 28 U.S.C. 1367(c), district courts may
decline to exercise supplemental jurisdiction over [state-law] claim[s] . . . if . . .
the district court has dismissed all claims over which it has original jurisdiction.
See also Smith v. City of Enid ex rel. Enid City Commn, 149 F.3d 1151, 1156
(10th Cir. 1998) (When all federal claims have been dismissed, the court may,
and usually should, decline to exercise jurisdiction over any remaining state
claims.). Because the district court dismissed the TILA claim over which it had
original jurisdiction, 1367 permitted the court to also dismiss the supplemental
state-law claims.
None of the factors which might indicate an abuse of discretion, such as
judicial economy, convenience, and fairness favor a decision to retain
jurisdiction. Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir.
1995) (internal quotation marks omitted). The Heils failed to discuss why their
state claims are related to the TILA claim. And the parties did not expend much
time and energy on the state claims before the district court dismissed the TILA
claim. See id. Accordingly, we conclude the district court did not abuse its
discretion in declining to exercise supplemental jurisdiction.
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IV.
The judgment of the district court is AFFIRMED. 4

Entered for the Court

Bobby R. Baldock
Circuit Judge

Wells Fargo requests fees and costs. This request is premature, as Wells
Fargo must comply with Fed. R. App. P. 39(d).
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