Tag: statute of limitations

4th Circuit: Rusnack v. Cardinal Bank, N.A.- Recoupment and Statutes of Limitation

Summary:

Mr. Rusnack and his then-wife, opened a home equity line of credit (HELOC) with Cardinal Bank in August 2003. Between 2003 and 2006, the Rusnacks periodically drew on the HELOC using checks issued by Cardinal Bank. On June 22, 2006, shortly after the Rusnacks separated, Mr. Rusnack directed Cardinal Bank in writing to freeze further advances from the HELOC and Cardinal Bank acknowledge such freeze. Despite this, Cardinal Bank honored two checks each in the amount of $10,000 from Ms. Rusnack on July 26, 2006, and September 12, 2006. Cardinal Bank sought repayment from Ms. Rusnack, but she did not comply.… Read More

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N.C. S.Ct.: Christenbury Eye Center, P.A. v. Medflow Inc.- Date from which Statute of Limitations Runs

Summary:

In an unfulfilled business agreement, over a period of fourteen (14) years, Medflow, Inc. never made any royalty payments, never provided a written sales reports ,and never obtained consent for restricted sales. When Christenbury Eye Center, P.A. brought suit for such, the trial court dismissed the case as the various claims were stale under the applicable Statutes of Limitations. On appeal, Christenbury argued that the business agreement should be treated as “an installment contract”, with a new limitations period beginning upon the failure to make each payment, allowing recovery on royalty payments due within the three years before the filing of its complaint.… Read More

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W.D.N.C.: Garvey v. Seterus – FDCPA Demand for Verification Limited to Statutory Requirements; Statute of Limitations for FDCPA

Summary:

Leaving aside the multiple foreclosure proceedings and subsequent appeals, Mr. Garvey eventually filed a short-lived, pro se Chapter 13 bankruptcy. Attorneys for Seterus filed a Notice of Appearance and Objection to Confirmation. Mr. Garvey then sent a demand to the attorneys, as debt collectors, pursuant to 15 U.S.C. § 1692g, provide verification under penalty of perjury to substantiate that the alleged debt was owed to Seterus and further stating that failure to comply within seven days would constitute a waiver of all claims against him.

Following the dismissal of the bankruptcy, Mr. Garvey commenced suit in federal district court, which held that, pursuant to 15 U.S.C.… Read More

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N.C. Ct. of Appeal: KB Aircraft v. Jack Berry- Period to seek Commence Voidable Transfer Action Determined as of Transfer Date not Discovery; Statute of Repose

 

Summary:

While factually complicated, this case presents two issues of first impression under North Carolina law, first regarding the interpretation of the term “transfer” the North Carolina Uniform Voidable Transactions Act, N.C.G.S. § 39-23.9, and secondly, whether this is a statute of limitations or repose.

The Court of Appeals held that based on both the plain language of the statute and the legislative history, the term “transfer” refers to the actual date on which an asset was transferred, rather than the date when its fraudulent nature became apparent to a creditor.

Further, and that the statute is one of repose and not limitation.… Read More

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N.C. Court of Appeals: Wells Fargo v. Coleman- Statute of Limitations for Reformation of Deed of Trust is a Factual Determination; Reasonable Diligence not required for Mutual Mistake

Summary:

The Colemans own lots 42, 43, 44, and 45 of a subdivision, with their home located on lots 42 and 43 and lots 44 and 45 being undeveloped. In 2007, Mr. Coleman borrowed $137,567.00 from (now) Wells Fargo, secured by a Deed of Trust signed by the couple. The Deed of Trust described the property as:

All that real property situated in the County of Davidson, State of North Carolina:
Being the same property conveyed to the Grantor by Deed recorded in Book 1007, Page 1013, Davidson County Registry, to which deed reference is hereby made for a more particular description of this property.… Read More

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4th Circuit: Olson v. Midland Funding- FDCPA Statute of Limitations, Non-collection Notices, and Unsucessful Debt Collection Suits

Olson raised FDCPA claims in federal court against Midland, which had brought a debt collection action in state court. These claims were asserted within a year of when Olson first appeared in the state court debt collection action, but more than a year after the alleged violations. The 4th Circuit found that the one-year statute of limitation barred Olson’s FDCPA suit, as the Statute of Limitations ran from the violation date, especially as Olson had been on notice and participated in the state court action for longer than one year.

Olson further contended that privacy notices sent directly to him, after Midland was aware he was represented by counsel, violated § 1692c(a)(2).… Read More

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Bankr. M.D.N.C.: Rutledge v. Wells Fargo Bank, N.A.- State Law Claims for Failure Related to HAMP Modification

Summary:

The Debtor, after various alleged inconsistencies and shenanigans by Wells Fargo in application of her payments and insurance proceeds, as well as failures in the review of her loan modification application, filed bankruptcy and brought suit alleging, among other causes of action, breaches of contract and duties of good faith & fair dealing and fiduciary duty, fraud and constructive fraud, and violations of the North Carolina Unfair and Deceptive Trade Practice Act. Wells Fargo sought dismissal for failing to state a claim. Following Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), the bankruptcy court examined the treatment of allegations of state law violations arising from failures under federal regulations related to the providing and servicing of mortgages, finding that the cases fell into three categories: 1.… Read More

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N.C. Court of Appeals: Ussery v. BB&T- Statute of Limitations and Equitable Estoppel

Summary:

Ussery brought suit against BB&T as a result of a failure to qualify for a government loan, more than six years after a learning of the denial of the loan. The causes of action were subject to a three year Statute of Limitations, but Ussery argued that under a theory of equitable estoppel, BB&T should not be allowed to assert such defense, as it had during the pendency of a lawsuit by Barker, a partner, actively dissuaded Ussery from bringing his own lawsuit earlier.

The elements of equitable estoppel as follows:
(1) As related to the party estopped:
(A) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert;
(B) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon;
(C) knowledge, actual or constructive, of the real facts.… Read More

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Bankr. E.D.N.C.: McClendon v. Walter Home Mortgage- Usury and Unfair & Deceptive Trade Practices

Summary:

The McClendons sought to purchase a home built by Jim Walters Homes (JWH) and financed by Walter Mortgage Company (WMC). Both the construction and the financing went through several permutations, with the size of the house, the amount of the loan, and the loan interest rate, increasing several times. Ultimately, the McClendons owned a home they had difficulty affording, faced foreclosure, filed bankruptcy and brought an Adversary Proceeding against WMC, alleging usury and multiple mortgage financing violations and unfair and deceptive acts and practices.

The first issue addressed was that the alleged usurious financing occurred more than two years prior to the instigation of the Adversary Proceeding.… Read More

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Bankr. E.D.N.C.: Sea Horse Realty v. Citimortgage- Statute of Limitations for Reformation of Incorrect Deed of Trust

Summary:

Sea Horse Realty, which is wholly owned by Richard Mercer, is the owner of a parcel of real property located in Nags Head. In 2005, Mercer executed a promissory note, currently held by Citimortgage (to whom reference will be made, regardless of whether the party was Citimortgage or its predecessors), for $1.5 million, pledging the property as collateral. The Deed of Trust was originally to list Sea Horse Realty as the grantor, but this was changed at the request of the mortgage broker to list Mercer as the grantor.

Mercer filed Chapter 11 in 2009. Citimortgage filed a Proof of Claim, but following an uncontested objection by Mercer, this claim was allowed as a general unsecured claim.… Read More

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