Quote: Angelo said:
Under what circumstances would the statute of limitations be tolled? Lets say a lis pendens was filed (never canceled) and the balance of the note was accelerated in 2005, and a person filed a chap. 13 petition in 2005. in '07 stay was released and a Mod. was given by an entity that didnt take assignment of the mortgage until 2009.
My question is, since the original note balance was accelerated in 2005 and the mod might be considered void because of the assignment issue, does the clock stop because of the BK or do they have to cancel the acceleration? and does the the six years still run until 2011.
You are asking questions a bit beyond my knowledge, experience and pay grade. When you get into areas like the question you present, you are going to have to look for cases, but also very often have to expect that there is going to be some analysis by the court.
Generally, time that a matter is stayed pursuant to a civil stay in bankruptcy tolls limitations. That is, you cannot hope to hide behind a civil stay and then later emerge from behind this shield to assert immunity based upon limitations.
My uninformed LAY GUESS is that the effects of the modification are going to depend rather critically on the precise contractual language of the modification. Usually the language of such modifications is pretty OPPRESSIVE. To the extent that the language actually effects some sort of reinstatement or reaffirmation by the borrower, it seems likely that this is going to tend to result in the treatment of the modification almost as a new loan. But the language is probably the most critical thing. Then there is the question as to whether the modification is actually valid and effective. How far the argument that the modification was a nullity or void carries is really quite unclear.
You need to bear in mind that there is likely to be very little appellate case law on these kinds of issues, but that the courts are generally going to enforce agreements freely reached by the parties.
Best of luck with your research!