ANZ asks federal court to dismiss the complaint filed against them
Pago Pago, AMERICAN SAMOA — ANZ Guam Inc., the parent company of ANZ Amerika Samoa Bank in Pago Pago, has asked a federal judge to, among other things, dismiss a complaint filed by three American Samoa residents, who allege the bank violated federal laws.
ANZ is also asking the federal court in Guam, to deny or to strike the plaintiffs' request to allow the case to “proceed as a class action” suit, meaning other bank customers facing alleged similar situations can join.
Filed on Mar. 21st, the complaint identifies the plaintiffs as Ronald Parker, Fa’afetai Parker and Tualagi Gaoteote, “on behalf of themselves and all other similarly situated.” It notes that Ronald Parker and Gaoteote are both US military retirees.
The plaintiffs allege that ANZ is liable for its systematic violations of the Truth in Lending Act (TILA) of 1968, and Regulation Z, for failing to provide homeowners with accurate periodic statements regarding the mortgages it services. And it cites specific allegations of violations committed by ANZ Guam Inc., dba in Pago Pago as ANZ Amerika Samoa Bank.
In a 21-page response filed last week, ANZ moved to dismiss the claims and to strike allegations in the complaint for class action designation of the case.
According to ANZ, the plaintiffs’ claim of violating the TILA and Regulation Z, “should be dismissed with prejudice” under federal rules of civil procedure “because the claims are barred by the applicable one-year statute of limitation” to file damage claims.
ANZ argues that the plaintiffs allege in their complaint that the Parkers’ promissory note for their mortgage loan was originated in 2005, and Gaoteote’s promissory note and mortgage originated in 2010.
Therefore, plaintiffs' claims brought in 2018 “are time-barred and cannot be saved by amendment,” according to ANZ, who then asked to dismiss this claims with prejudice.
A footnote in the court documents states that, “Because ANZ is a ‘smaller servicer’ as defined” under federal law, the bank was not required to provide periodic statements under provisions of TILA and Regulation Z.
Regarding the class action status designation, ANZ said the plaintiffs' had proposed three classes (related to class action) and asked the court to “strike the proposed classes because they are improper fail-safe classes; and to strike the proposed classes because they include individuals with claims that are time barred and would require improper individualized inquiries into putative members’ separate contracts and interactions with ANZ.”
(A so-called “fail-safe” class is “one that is defined so that whether a person qualifies as a member depends on whether the person has a valid claim,” and thus the existence of the claim “cannot be ascertained until the conclusion of the case, when liability is determined,” according to a Jan. 23, 2017 article published online by the Jackson Lewis Law Firm, based on a federal court case.)
ANZ is represented by Guam-based law firm Civille & Tang, LLC while the plaintiffs are represented by the Law Office of Peter C. Perez in Guam, RDA Law Firm in American Samoa, and Wolf Popper LLC law firm in New York, according to court records.