Not So Fast! Statute of Limitations Bars Claims for Enforcement of Statutory Duties But Does Not Bar Other Action For Damages Based on That Duty.

Claims under state statutes or Federal statutes have different periods of limitation under which you can file suit.

BUT — if the statutory duty that was breached is part of another claim that is not barred by the statute of limitations then you can survive a motion to dismiss or even an affirmative defense of statute of limitations.

Sound crazy? Actually it isn’t.

I have already discussed claims for damages that are barred by the statute of limitations but he same statute does not bar the same pleading as an affirmative defense because that is NOT, for procedural purposes, a “claim.” Those are generally called Defenses for Recoupment which allow awards of damages for money and even court costs and attorney fees that might ordinarily be barred. Several lawyers have recognized this and some who have been successful have brought it to my attention and even appeared as a guest on the Neil Garfield Show.

Now for the past year, more decisions are coming out predicated on public policy. You cannot raise a claim for violation of HAMP, FDCPA or TILA after the period of limitations has expired but you can use the statutory violation as the basis of a claim under another right of action. So if the state, for example, has a law that allows a private right of action for damages for breach of a duty, that duty might come from a statute that has expired but is still in operation as evidence of the duty of fair dealing and against wrongful enrichment.

see https://www.lexology.com/library/detail.aspx?g=1f747ad6-1d9c-43f8-8c61-431f099cc58b

The bank informed the plaintiffs of the error, provided a check for $15,000, and after mediation, paid the plaintiffs another $25,000. The plaintiffs filed a class action against the bank, asserting claims for violation of the WCPA and unjust enrichment. The bank moved to dismiss the action, arguing, among other things, that the WCPA claim was an “impermissible attempt to enforce the federal Home Affordable Modification Program (HAMP), which creates no private right of action.” The court disagreed with the bank, determining that while the mortgage modification application was filed pursuant to HAMP, the plaintiffs “do not seek to enforce HAMP.” Instead, the plaintiffs argue that the wrongful denial of their application and failure to disclose the calculation error for three years “constitutes unfair or deceptive conduct in violation of the [WCPA].”

5 Responses

  1. In addition, there is rarely a case being documented as won. There are no cases to cite. There may settlements that we do not know about. Nevertheless, the case law decisions available are not only so bad, but totally “out of it.” Nothing is being plead properly. The Courts have the government’s NOD for all is “okay”.

    How do we deal?

  2. HAMP was created to conceal “contract derivatives.” Derivatives are not securities, they are contracts. Contracts for debt buying.

    I will emphasize, if you have the fiduciary trustee stated as the “holder” and “owner,” and the loan is in default, that is false. Fiduciary trustee role ENDs when loan is reported in default. In its’ place — is an administrator (oh they can call themselves a trustee – or anything they want, but they are NOT a fiduciary security trustee) – who administers the “default security” which removes any loan from fiduciary trustee pass-through responsibility. It is a contract – nothing more. No security. That is the confusion.

    My own feeling from years of research — every single PLMBS were loans already falsely reported in default.

    I will further emphasize that servicers NEVER pay the “Trust” directly. NOT EVER. If in a trust — MUST go from servicer to the FIDUCIARY trustee — NEVER DIRECTLY FROM SERVICER TO a “TRUST.”. IMPOSSIBLE. Goes from servicer ‘collection account” to fiduciary trustee “distribution account.” NEVER directly from “servicer” to the trust. The trust is a non-legal entity. IMPOSSIBLE.

    Bottom line — everyone needs to know who is the default swap contract holder that the claimed servicer conceals? Contracts “pass through” nothing to “security investors” Contracts are not securities. Yet the servicer still claims to service under the fiduciary trustee to the trust. No. This is outright false. There are NO security investors.

    In a word — which no court will touch because it is beyond their ability to comprehend — DERIVATIVES. CONTRACT DERIVATIVES.

    All is violation of the FDCPA. SOL? From discovery. Discovery? Won’t happen if government continues concealment.

    I have not seen ONE case to discuss SWAP DERIVATIVES. NOT ONE. Which means – never presented.

  3. Over 96% of all Dept of VA loans are attached to bank’s created Ginnie Mae MBS, which the Dept of VA has zero financial interest in. The Dept of VA can purchase at a legal foreclosure sale purchase the property from a lender that legally foreclosed, which is an impossibility after Sept 25, 2008, with all WAMU VA pooled loans.

    AS WAMU stops existing the Notices of Defaults are invalid as the Deed of Trust are invalid and forged. The Dept VA wrongly understood that loss mitigation was being conducted, however, with the Independent Foreclosure Review Board (IFR) starting in Apr 2011 after all 20,000 Dept of VA borrowers denied a VA HAMP and instead foreclosed in 2010 illegally by the banks. The conclusion of the IFR in Apr 2013, determined that Dept of VA loans did not receive underwriting and awarded $6,000.

    The DOJ required DNA test and the test came positive that neither the Dept of VA nor Wells Fargo had a financial interest in the loan debt. The “No Standing” issue should have been address by the Dept of VA with the updated IFR that required the independent financial firm review the file of the Dept of VA borrowers. The DOJ did not come to the conclusion to make bank review as many as 4.25 million loan if not some evidence of wrong doing. Billions in payout were not negotiated because no violations were committed! $6,000 was paid because a modification was not conducted when it should have been. Under the VA HAMP a foreclosure could not be considered before the underwriting occurred. It Oct 2019 and that underwriting still has not occurred and just as back them, the bank in WAMU still does not exist and never again can exist!

    Wells would act as if the assignments of deed or trust could be assigned as part of this unbroken link of MERS member however, WAMU after Sept 25, 2008 is not a member, so after that date proof of purchase must be present to the court per UCC9. The Dept of VA should have requested this information before illegally purchasing these properties and paying out insurance claims that fueled the crime!

  4. The VA HAMP was mandated unlike the HAMP and FHA HAMP, you got 20,000 Dept of VA borrowers that received $6,000 from the Independent Foreclosure Review Board. Why the settlement was changed to not address the “No Standing” provision that was eliminated when they renegotiated the settlement in Jan 2013!

    Wells Fargo is on record for halting the processing of Dept of VA for the HAMP in 2009, which when the program roll out the HAMP was not mandatory for the lenders to perform, On Jan 8, 2010, VA Circular 26-10-02 made mandatory that all Dept of VA loans requesting the VA HAMP (effective date Feb 1, 2010) be first underwritten for the HAMP first. If the HAMP does not qualify the borrower or provide affordable payments, them the VA HAMP must be underwritten and granted if qualified for the 2% interest rate 40yr term!

    This is a mandatory part of the loss mitigation requirement that the Dept of VA is to ensure happens before they purchase the property at a foreclosure sale. What occurred is the Dept of VA colluded with Wells to unlawfully take property. This is no different than the 545 illegally foreclosed properties under bankruptcy protection Wells admitted to in 2018 that started in Apr 2010. The Washington Mutual Bank (WAMU) Ginnie Mae pooled Dept of VA loan should have also been under bankruptcy protection as there was no actual debtor after Sept 25, 2008, for these pooled VA loans!

    The agency in the Dept of VA has a duty to protect the interest of both the borrower and the Dept of VA, which is not done. In 2010 after Feb 1, 2010, there must have been with the purchase of the properties a “Borrower Notice” showing that the first part of the VA Circular 26-0-02 was accomplished.

  5. And Res Judicata does not Trump Jurisdiction.

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