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NY/MA Attorney
NY/MA Attorney, Attorney
Category: Legal
Satisfied Customers: 16
Experience:  20 years experience practicing law.
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Hi- Thanks for your answer. You did not though answer my

Customer Question

Hi-
Thanks for your answer. You did not though answer my last question of my query if you can:

"2. I would like the name of a legal textbook that has a section on this subject "

Thanks!
Customer
Submitted: 5 years ago.
Category: Legal
Expert:  NY/MA Attorney replied 5 years ago.
HiCustomer Thank you for asking your question on JustAnswer. Your question is incomplete as posted, we need to know the subject to which your inquiry relates.



Thank you again for trusting us with your problem. Please reply as soon as possible so that we can finish answering your question.



Customer: replied 5 years ago.

I had posted this below but the last item #2 was not answered by the lawyer. I think I inadvertently posted the above when I meant to really reply to the lawyer directly here. New to this. If you can/want answer my post then feel free. Thanks, Steven:

 

Hypothetical Question: In 2000 defendant gives plaintiff a mortgage . In 2008 the plaintiff files foreclosure. In his answer, Defendant sets up an affirmative defense of fraud in the inducement claiming that plaintiff got the mortgage by false promises . Preesume that statute of limitations for civil fraud is 3 years. I got this advice and want to check to see if it is correct: I am told that the statute of limitation applies to a plaintiff who pleads it in his complaint affirmatively but does not apply to an affirmative defense raised by a defendant in it's answer.. The statute of limitations only applies to plaintiff's who sue based on a claim of fraud. Also, in my state, as is the case in most other places, fraud pled by a plaintiff must be pled with specificity. The advice I am getting says that when a defendant raises fraud as an affirmative defense, there is no specificity requirement.

 

My question:

1. Please comment on the foregoing, i.e. Is the advice I am getting right or wrong ?

2. I would like the name of a legal textbook that has a section on this subject

Expert:  NY/MA Attorney replied 5 years ago.
I think that you may be mixing apples and oranges a little bit. The statute of limitations is called that because it is a Statute, or a law. In Massachusetts there are two types of law that you can argue to a court, statutory law and common law. Common law is created when a Court writes a decision. In Massachusetts when the highest court, the Supreme Judicial Court, (as opposed to the legislative court) enters an opinion all of the lower trial courts are bound by the law created in that decision. Legislation is created by the legislative branch and signed into law by the Governor. The statute of limitations for tort actions is Massachusetts General Law. c. 260 section 2A. In that statute it says that if you want to bring an action for a tort (like fraud) you have to do so within 3 years of the cause of action. There are sometimes issues, especially with fraud, as to when the Plaintiff knew, or reasonably should have known that the cause of action arose. It does not apply at all to affirmative defenses to actions brought by someone else. If the Defendant filed a counterclaim, that would be a different story. The Massachusetts Rules of Civil Procedure, Rule 8(c) requires that, in an answer, affirmative defenses, like fraud, be raised in the Answer to the complaint. The Plaintiff can, in discovery, find out exactly what the Defendant is claiming. In Rule 9(b) the rules require all allegations of fraud to be set out with particularity. I have never seen this rule applied to an affirmative defense, but I guess you could bring a motion to strike the affirmative defense. You can reference a set of book called Massachusetts Practice, there are a couple of books dedicated to pleading civil cases. You can find the books at any law library. In Massachusetts almost every Superior Court House has a law library. In addition the Social Law Library at the XXXXX XXXXX Courthouse in Boston is one of the finest law libraries in the United States. If you ask the reference librarian for works related to civil procedure he should be able to set you up with 300 or so books. Happy reading!
NY/MA Attorney, Attorney
Category: Legal
Satisfied Customers: 16
Experience: 20 years experience practicing law.
NY/MA Attorney and 13 other Legal Specialists are ready to help you
Customer: replied 5 years ago.

Very helpful Thanks very much.. Much apprecaited.

 

Steven

Customer: replied 5 years ago.

PS: I originally had this questioned answer and wanted afollow up after I hit ACCEPT. I sent another to the same lawyer had to give $15 (already sent $45). I guess you inadvertently read my follow-up to him and asked for the complete question/inquiry.

 

I am new to this system and I would have entered in the full $45 for another full opinion/reply. Sorry!!! No insult/disrespect to you intended for $15. You had a great answer.

 

Thanks!

 

S.

Expert:  NY/MA Attorney replied 5 years ago.
No problem Steve, I don't do this for the money, I am glad that I was able to help.

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