Mortgage Servicing Fraud
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Aaron

I wanted to call the attention of Forum participants to a special U.S. Code provision on limitations which is applicable when the mortgage investor is a bank placed into receivership by the FDIC.

12 U.S. Code § 1821(d)(14).

(14) Statute of limitations for actions brought by conservator or receiver
(A) In general
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be—

 

(i)in the case of any contract claim, the longer of—

(I)the 6-year period beginning on the date the claim accrues; or

(II)the period applicable under State law; and

 

(ii)in the case of any tort claim (other than a claim which is subject to section 1441a(b)(14) [2] of this title), the longer of—

(I)the 3-year period beginning on the date the claim accrues; or

(II)the period applicable under State law.

 

(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of limitations begins to run on any claim described in such subparagraph shall be the later of—

(i)the date of the appointment of the Corporation as conservator or receiver; or

(ii)the date on which the cause of action accrues.

 

(C) Revival of expired State causes of action
(i)In general In the case of any tort claim described in clause (ii) for which the statute of limitation applicable under State law with respect to such claim has expired not more than 5 years before the appointment of the Corporation as conservator or receiver, the Corporation may bring an action as conservator or receiver on such claim without regard to the expiration of the statute of limitation applicable under State law.
 
(ii)Claims described A tort claim referred to in clause (i) is a claim arising from fraud, intentional misconduct resulting in unjust enrichment, or intentional misconduct resulting in substantial loss to the institution.

 

http://www.law.cornell.edu/uscode/text/12/1821

 

 

This statute is discussed within the Texas Supreme Court case:

HOLY CROSS CHURCH OF GOD IN CHRIST v. Wolf, 44 S.W.3d 562 (Tex. 2001)
http://scholar.google.com/scholar_case?case=8835627660417591535

Courts in other jurisdictions might reach other different conclusions.

There is a parallel provision providing a six year limitation period applicable to suits brought by the United States:

28 U.S. Code §2414 - Time for Commencing Actions Brought by the United States

(a) Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later: Provided, That in the event of later partial payment or written acknowledgment of debt, the right of action shall be deemed to accrue again at the time of each such payment or acknowledgment: Provided further, That an action for money damages brought by the United States for or on behalf of a recognized tribe, band or group of American Indians shall not be barred unless the complaint is filed more than six years and ninety days after the right of action accrued: Provided further, That an action for money damages which accrued on the date of enactment of this Act in accordance with subsection (g) brought by the United States for or on behalf of a recognized tribe, band, or group of American Indians, or on behalf of an individual Indian whose land is held in trust or restricted status, shall not be barred unless the complaint is filed sixty days after the date of publication of the list required by section 4(c) of the Indian Claims Limitation Act of 1982: Provided, That, for those claims that are on either of the two lists published pursuant to the Indian Claims Limitation Act of 1982, any right of action shall be barred unless the complaint is filed within

 

(1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim or

 

(2) three years after the date the Secretary of the Interior has submitted legislation or legislative report to Congress to resolve such claim or more than two years after a final decision has been rendered in applicable administrative proceedings required by contract or by law, whichever is later. 

http://www.law.cornell.edu/uscode/text/28/2414

See for example: 

McLemore v. Pacific Southwest Bank, FSB, 872 S.W.2d 286 (Tex. App. -- Texarkana 1994)
http://scholar.google.com/scholar_case?case=8478981800877936542

These provisions were brought to my attention some time ago by Mr. Roper who had cautioned against prematurely declaring victory when a borrower gets past a state statute of limitations.

The former provision would seem to apply to actions brought by the FDIC.  The latter might apply in a HUD foreclosure.  It is less clear what happens if the FDIC sells a loan following receivership (e.g. OneWest), especially if the loan was not already in default.

It is a good idea to both keep one's eyes on the calendar and also to be aware of arcane statutes which might modify the applicability of state limitations provisions.  I am indebted to Mr. Roper for pointing out these obscure provisions to me.

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Naomi
Does anyone know if a bankruptcy filing affects the SOL on a promissory note?
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texas
Good question, is tolling of time stayed by a suit in process.



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Jerry

Quote:
Does anyone know if a bankruptcy filing affects the SOL on a promissory note?

 

Mr. Roper addressed this question some time ago.  Limitations is tolled during bankruptcy while the civil stay remains in effect:

 

Substitute Trustee ??? (03/21/11 at 02:26 AM)

http://ssgoldstar.websitetoolbox.com/post/show_single_post?pid=1267756593&postcount=11

 

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Jerry

Quote:
Good question, is tolling of time stayed by a suit in process.
 

Obviously, once a suit is filed and the defendant is served, limitations are not an issue in respect of the current suit.

 

The pendency of a suit usually does not toll limitations which continue to run during the pendency of a suit.  However, some states have a "saving" statute that tolls limitations or extends limitations when a cause of action is dismissed on appeal or otherwise when a case is dismissed without prejudice.  These saving statutes vary widely from state to state.

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