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The loans closed in 2006. Everything was fine until August or so in 2008 when I was getting behind. My tenant paid half of the deposit for 2009 but in April of that year did not proceed with the other half--funds to be used to pay Wells Fargo. So I began contesting this then and during all of 2009 was in loan modification with Wells.
So in 2008 things began to get rocky. I formally notified the bank Jan 27, 2010. I only sued in the court this past March after all attempts to work with them for a gentle solution failed. So it was not that I was indifferent. Thank you. Bob
Is there anything under the Consumer Protection Act?
Here's a link to a summary of the Massachusetts consumer protection act: http://www.mass.gov/ocabr/consumer/shopping/consumer-protection-law.html
In order to file a claim under the act, you must first send a written demand letter to the business/creditor. Here's a sample letter from the Mass. Attorney General's office: http://www.malawforum.com/content/sample-massachusetts-93a-demand-letter
The BEST news about this is that the statute of limitations under the Mass. Consumer Protection Act is 4 YEARS from the date on which the action accrued - which would give you a little more time. See M.G.L. c. 93A; M.G.L. 260, §5A
Here's a link to the statute of limitations: https://malegislature.gov/laws/generallaws/partiii/titlev/chapter260/section5a
Please let me know if you need anything further.
Dear Kirk, I am in the Federal Court now so it may be confusing to file in another court at the moment. Do you have a case (s) of when the 3 year time period begins? The aother side says it began with taking out the loan in which my finances were mis-represented. But everything was going along OK then. Yes, they threatened to FC on the second loan but instead cancelled this action and wrote it off. That was in May or so of 2009. So I thought we would be back on track and was in loan modifications. By January 2010 they had sold the mortgage to another bank that then foreclosed. It was then I realized it was serious and sent a letter to Wells Fargo pointing out the financial eg
Sorry for typos.
Kirk, I have to run. Back about 3:30 or so.
Facts and case numbers are so helpful.
I'll be glad to look some case law up for you.
Bye for now. Sorry
Yes, look up some fodder for the Federal Judge. That would be so very helpful. I only wish I could send you the filing and the defendants' motion.
The case of Foster v. Bartolomei, 2011 Mass. App. Unpub. LEXIS 282 says that "fraud claims [are] subject to the three-year limitations period provided by G. L. c. 260, §§ 2A and 4.
Here's GL ch. 260, § 2A (2013):
"Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues."
Below are annotations from the statute that outlines WHEN a cause of action "accrues":
"Discovery" rule determines when cause of action accrues and thus when statute of limitation starts to run, by prescribing as crucial date when plaintiff discovers or earlier date when plaintiff should have reasonably discovered that he was harmed or may have been harmed by defendant's conduct. Bowen v. Eli Lilly & Co. (1990) 408 Mass 204, 557 NE2d 739, 1990 Mass LEXIS 352, CCH Prod Liab Rep P12583.Before cause of action accrues, plaintiff must have (1) knowledge or sufficient notice that he was harmed and (2) knowledge or sufficient notice of what cause of harm was. Bowen v. Eli Lilly & Co. (1990) 408 Mass 204, 557 NE2d 739, 1990 Mass LEXIS 352, CCH Prod Liab Rep P12583.Reasonable notice that particular product or particular act of another person may have been cause of harm to plaintiff creates duty of inquiry and starts running of statute of limitations. Bowen v. Eli Lilly & Co. (1990) 408 Mass 204, 557 NE2d 739, 1990 Mass LEXIS 352, CCH Prod Liab Rep P12583.Legislature did not define when cause of action accrues but left such determination to judicial interpretation. Riley v. Presnell (1991) 409 Mass 239, 565 NE2d 780, 1991 Mass LEXIS 50.Cause of action on a breach of fiduciary claim accrues for limitations purposes when a plaintiff knows (or in the case of the discovery rule, should know) facts sufficient to make a causative link between the fiduciary's conduct and the plaintiff's actual injury. Actual knowledge of the injury suffered at the fiduciary's hands, not knowledge of the consequences of that injury (i.e., a legal claim against the fiduciary), sets the three-year statute of limitations, ALM GL c 260, § 2A, in play. Doe v. Harbor Schs., Inc. (2006) 446 Mass 245, 843 NE2d 1058, 2006 Mass LEXIS 44.Exception to usual rule that personal injury action accrues at time plaintiff is injured is that action based on inherently unknowable wrong accrues when injured party knew, or in exercise of reasonable diligence, should have known of factual basis for cause of action. Gore v. Daniel O'Connell's Sons, Inc. (1984) 17 Mass App 645, 461 NE2d 256, 1984 Mass App LEXIS 1413."Discovery rule" tolls statute of limitations until plaintiff discovers or reasonably should have discovered that he has been harmed or may have been harmed by defendant's conduct. Phinney v. Morgan (1995) 39 Mass App 202, 654 NE2d 77, 1995 Mass App LEXIS 559, review denied (1995) 421 Mass 1104, 656 NE2d 1258, 1995 Mass LEXIS 526.Cause of action accrues at time plaintiff is injured but plaintiff need not know full extent of injury, just that event or events have occurred that are reasonably likely to put plaintiff on notice that he has been harmed. Stark v. Advanced Magnetics, Inc. (2000) 50 Mass App 226, 736 NE2d 434, 2000 Mass App LEXIS 841.Summary judgment motion pursuant to Mass. R. Civ. P. 56(c)by the makers of latex gloves was denied as to an injured party's personal injury action arising from latex allergies; there was a triable issue of fact as to when the injured party discovered the source of the allergy, and therefore as to whether the action was filed within the three-year statute of limitations under ALM GL c 260, § 2A. Salemme v. Aero-Med, Ltd. (2004) 18 Mass L Rep 349, 2004 Mass Super LEXIS 458.Trial court granted the town and town police department's motion for summary judgment on the claimant's civil action for the alleged unlawful seizure of items after the claimant was arrested on multiple criminal counts, some of which involved theft of property; although the applicable three-year limitations began to run when the claimant pled guilty to the crimes that formed the basis for seizing the property, the claimant did not file his civil action until nearly seven years had passed from that time and, thus, the claimant's action was time barred. McFarlane v. Commonwealth (2007) 22 Mass L Rep 744, 2007 Mass Super LEXIS 281.Borrower's ALM GL c 93A and fraudulent misrepresentation claims were time-barred and the statutes of limitations were not tolled by the discovery rule because the borrower's agent was present at the closing of the mortgage and signed the documents; the statute of limitations began running on the date the mortgage closed. Matos v. First Nat'l Bank (2010) 27 Mass L Rep 246, 2010 Mass. Super. LEXIS 221.Borrower's ALM GL c 93A and fraudulent misrepresentation claims were time-barred and the statutes of limitations were not tolled by the discovery rule because the borrower's agent was present at the closing of the mortgage and signed the documents; the statute of limitations began running on the date the mortgage closed. Matos v. First Nat'l Bank (2010) 27 Mass L Rep 246, 2010 Mass. Super. LEXIS 221.A home seller's claims relating to an alleged joint venture with the buyer were barred by ALM GL c 260, §§ 2, 2A, and 5A. The seller knew no later than 1999 that the buyer had repudiated any claim of the seller's to be a partner, joint venturer, or shareholder in the buyer's business. Martin v. Heimlich (2007) 2007 Mass Super LEXIS 324.Because the beneficiary of a family trust failed to act in the three years after a visit with an attorney, in light of what the beneficiary knew about the trust, the applicable statute of limitations ( Mass. Gen. Laws Ann. ch. 260, § 2A) barred a breach of fiduciary duty claim. Once the beneficiary was told that "his aunt's money was none of his concern and that he was not entitled to anything," in light of what the beneficiary knew about the trust, the beneficiary was required to act reasonably to ascertain whether the beneficiary had been harmed by the attorney's conduct. Kury v. Calechman (2007) 23 Mass L Rep 200, 2007 Mass Super LEXIS 420.Summary judgment was appropriate on an insured's claim against an insurance agent that alleged interference with an advantageous relationship claim; the insured's suit was not brought within the three-year statute of limitation of ALM GL c 260, § 2A. When the insured filed a counterclaim to the insurer's separate complaint, the insured had at least the kernel from which his claim had grown; possession of that kernel was sufficient to start the statute running. Day v. Kerkorian (2008) 2008 Mass. App. LEXIS 590.Issue of when plaintiff licensee knew or should have known that he was being (allegedly) defrauded was an issue of fact that could not be resolved as a matter of law, and thus, defendant patent holders did not succeed on their motion to dismiss on grounds that the statute of limitations under ALM GL c 260, § 2A, had run. Backman v. Smirnov (2008) 2008 U.S. Dist. LEXIS 96753.Shareholder's (SH) breach of fiduciary duty and aiding and abetting breach of fiduciary duty claims against a law firm were time-barred under ALM GL c 260, § 2A as: (1) the SH had actual knowledge of the firm's substantial involvement in the affairs of a close corporation, and the firm's involvement in the alleged seizure of managerial control no later than when the SH brought a first suit in 2002; (2) the facts underlying the first suit formed the foundation of the claims against the firm; (3) the SH filed this suit in 2006; and (4) the statute of limitations was not tolled until the SH had a better appreciation of the legal claims the SH alleged. Pasquale v. Brody, Hardoon, Perkins & Kesten, Llp (2010) 2010 Mass. Super. LEXIS 94.Though plaintiff did not file a tort action against a town until over four years after a sinkhole developed on her property, the town was not entitled to summary judgment on grounds the suit was barred by the three-year statute of limitations for torts, as plaintiff alleged she did not learn that the town's negligence was the cause of the sinkhole until less than three years before filing suit, and there was a factual issue as to when a reasonable person would have had sufficient knowledge of the cause of the injury so as to begin the running of the limitations period. Spencer Furniture, Inc. v. Town of Spencer (2012) 2012 Mass. Super. LEXIS 13.Bivens action was timely filed under ALM GL c 260, § 2A, and Mass. Gen. Laws 260, § 5B because the action was filed within three years of the latest date that the plaintiffs could have known or had reason to know of the basis of their action. Donahue v. Connolly (2012) 2012 U.S. Dist. LEXIS 130408.Defendants' motion for summary judgment on the plaintiff's fraud complaint, which alleged that a transfer of property to defendants had been procured by fraud, was denied because there were genuine issues of material fact with respect to when the debtor learned of the transfer of the property, which triggered the running of the three-year statute of limitations under ALM GL c 260, § 2A. Dreliouch v. Mataev (In re Dreliouch) (2006) 359 BR 9, 2006 Bankr LEXIS 4217.Plaintiff's claims for conversion, intentional infliction of emotional distress, and undue influence were all barred by the three-year statute of limitations found in ALM GL c 260, § 2A because the claims, which related to defendant's conduct in the disposition of a decedent's property, accrued when the disposition of the decedent's property was completed, which was six years before suit was brought. The limitations period was not tolled on the ground that the cause of action was inherently unknowable due to defendant's alleged fraudulent concealment because the exercise of due diligence would have led to the discovery of the wrongs alleged. Stevens v. Stevens (2005) 2005 Mass Super LEXIS 460.
I hope this helps. Please let me know if you need anything further.
Also, please take time to positively rate our conversation when we're done so I may get credit for assisting you. Thanks!
Hi Bob -
I got your note that you were having trouble finding this question, so I exited us from the chat mode in hopes that you'd get an email link to click on so we can continue.
Let me know when you're back online.
Thanks - Kirk
You have been extremely helpful.
May I send you the entire response?
Do I simply file their "Memorandum of Law"
with my comments? A motion?
I have some key attachments.
Please start the meter again with these
additonal questions. What do I owe you so far?
Yes, you will get good ratings.
Hi Bob -
Sorry for the trouble you had navigating back to me, but I'm glad you made it back.
If you'll be so kind to rate this question positively, I will receive credit for it. Also, I'll be glad to respond to any future questions you have regarding your brief on the matter.
As a preliminary matter, if the defendants have filed a motion of some sort, you will have to respond to the motion and address the issues they raise. USUALLY, the best thing to do is to respond paragraph by paragraph to make sure you don't miss anything. Then, you would have your own memorandum of law that states your arguments.
Basically, you can use the form that they've used in their motion to draft your response.
Maybe tomorrow. Filing now.
Warm wishes and appreciation,
Dear Kirk, I gave you best ratings and paid a bonus, I think. You deserve it. So if it is open as to when I should have known to file, where is it stated as to when & where I should file? Is it the communication back to Wells Fargo or only when I sue in the courts? The lawyers for the other side have put this footnote into their memo:
Also, since we are in Federal Court, do state laws prevail?
Thank you so much. You are a God-send.
5 Plaintiff's breach of the implied covenant of good faith and fair dealing and unjust enrichment claims both sound in tort, rather than in contract, as they allege fraudulent inducement and fraudulent retention of funds, respectively. Insofar as Plaintiff's claims sound in contract, the statute of limitations is six (6) years. See Mass. Gen. Laws ch. 260 § 2 (" [a]ctions of contract ... shall ... be commenced only within six years SIX YEARS next after the cause of action accrues"). This distinction, however, is purely academic with respect to the origination claims. Plaintiff did not file suit until six and a half years after closing SEE EARLIER CASES ABOVE RELATING TO THE TIMING OF THE KNOWING OF THE HARM. [Caps = Bob] and thus is barred by both statutes of limitations on his origination claims, regardless of whether the claims are construed as tort claims or breach of contract claims]]
OK so it is six years. But from when the loan was signed or from when there was trouble brewing, ie. 2009-210. This is the key issue.
So let's review. In the loan application/mortage, my financials were incorrect. But there was no breach. Only later, during the loan modification, did I realize what was going on. Under the Mass case,
Thelemaque v. Freemont, I am absolved from knowing what was placed in the documents. So does the Mass. General Law 260 Ch 2 (which my server is not able to access) say the statute of limitations runs from when the problem was uncovered? This is key.
Thank you, Kirk,
Why was so much energy spent on the 3 year statute issue?
Do you have any cases to refer to regarding the state law vs. Federal law in a Federal court?
Thank you. I just gave you another high rating because you deserve it.
So what's our issue that goes around it?
There's no getting around the statute of limitation, but you can argue about when it began to run/accrued. If you can prove that you didn't know/should not have known before a certain time - - which is 3 years within the date you filed suit - - then you have a claim that the statute of limitations has not expired. Thus, the fraud argument is going to hinge on when you discovered the fraud.
However, even if your fraud claim is barred, you still have a breach of contract claim that is covered by a 6 year statute of limitation. Also, you could make a claim under the consumer protection act, which has a 4 year statute of limitation.
So, there are other avenues of relief out there if the fraud claim is barred.
What's the breach of contract claim? It's not because they failed to re-finance or that they sold off the second mortgage to satisfy the first. It seems a breach of contract would be if they failed to advance the funds etc.
Meanwhile I looked at the Consumer Protection section and have copied their sections. Nothing immediately pops out, but it may to you.
Section 5A. Actions arising on account of violations of any law intended for the protection of consumers, including but not limited to the following: chapter seventy-five C; chapter seventy-five D; section seven N of chapter ninety; sections twenty-one, twenty-one D, twenty-eight, forty-eight, forty-nine, sixty-nine, and seventy of chapter ninety-three; chapter ninety-three A; sections forty-six A to forty-six R, inclusive, and sections ninety-six to one hundred and fourteen B, inclusive, of chapter one hundred and forty; chapter one hundred and forty D; section one hundred and twenty-seven A of chapter one hundred and sixty-four; chapter one hundred and seventy-six D; sections fourteen, fifteen B, fifteen C, and eighteen of chapter one hundred and eighty-six; sections thirteen I, thirteen J, and thirteen K of chapter two hundred and fifty-five; chapter two hundred and fifty-five B; chapter two hundred and fifty-five C; and chapter two hundred and fifty-five D; whether for damages, penalties or other relief and brought by any person, including the attorney general shall be commenced only within four years next after the cause of action accrues.
It's hard to pinpoint a specific contract breach without reviewing all of the loan documents and knowing all of the facts (which is really impossible through this medium), but a breach would be a violation of any term of the contract, or a misrepresentation, some form of unfair dealing, etc.
As for an claim under the consumer protection act, take a look at this link and the types of things it says are violations: http://www.mass.gov/ocabr/consumer/shopping/consumer-protection-law.html. That may help you in determining what types of claims are valid under the act.
Dear Kirk, under 93-A I might qualify but I must issue a 30 day demand letter before going to court. So I open this discussion up to all of your colleagues. I have filed in the Federal Court and am going there on Monday. I'm not sure the 93-A will work. What about the 6 year rule?
Where does that come from?
5 Plaintiff's breach of the implied covenant of good faith and fair dealing and unjust enrichment claims both sound in tort, rather than in contract, as they allege fraudulent inducement and fraudulent retention of funds, respectively. Insofar as Plaintiff's claims sound in contract, the statute of limitations is six (6) years. See Mass. Gen. Laws ch. 260 § 2 (" [a]ctions of contract ... shall ... be commenced only within six years next after the cause of action accrues"). This distinction, however, is purely academic with respect to the origination claims. Plaintiff did not file suit until six and a half years after closing and thus is barred by both statutes of limitations on his origination claims, regardless of whether the claims are construed as tort claims or breach of contractclaims]
So it was only on January 27, 2010 that a hired consultant discovered the numbers in gthe application were wrong. That's when I saw they overstated my income and assets and granted me two mortgages. Even though I signed the mortgage pages, I did not review them carefully since the bank's rep. said he would do it. Under Thelemaque v. Freemont 2011, I am not responsible for this oversight.
Now under the 6 year time frame, we could go backwards from March 1, 2013 (date of initial filing) to early 2007 when there was absolutely no trouble.
So are we poroceeding with Mass Geneeral Law 260, Sec. 2 even though this is now Federal Court? I originally filed in the Mass. Suffolk County court but it was relocated, by Banks' attorney, because the size of the damage sought exceeded $75,000.
Thank you. I gave you a bonus yesterday.
That's what you would have to claim is that you didn't discover the fraud until 2010, and that the breach occurred within 6 years of the filing.
Yes, Mass. Gen. Law 260, Sec. 2 would still apply even though you're in federal court. The only reason you're in federal court is on a diversity claim (meaning that the parties are from different states and that the amount in controversy exceeds $75,000). So, the case is not over a federal law - - it's a state law issue that can be heard in federal court because of diversity jurisdiction.
Also, thanks for the bonus! I really appreciate your gratuity. Please let me know if you need anything further.
Thanks. I think we're good to go.
Here are some of the claims in my original filing:
1O. WELLS FARGO and Mr. Piccirillo [bank's agent] used grossly inflated income for GAMBEE, even though
WELLS FARGO and Mr. Piccirillo had evidence showing far less actual income.
I1. Upon information and belief, WELLS FARGO and Mr. Piccirillo inflated GAMBEE's income in order to facially comply with WELLS FARGO's underwriting requirement regarding "debt to income ratio» on loans such as those then under consideration to GAMBEE.
financial and employment information, the borrower can repay loans such as those made by Wells Fargo to Gambee. [not sure what this law is--do you?]
24. Following the Assignment, Wells Fargo conlinued to service both the First and Second
Mortgage and it continued to encourage GAMBEE to submit financial information in connection with a loan modification.
modify the First Mongage, which would have shown that the Property would have made a profit in 2009 after satisfying the First Mortgage. In addjtion, the Defendants failed to consider the Property's potential rental income, and incorrectly calulated the Property's expenses when malting their decision..
Counts: 1. Fraud, 2. negligent Misrepresentation, 3. Breach of Implied Covenant of Good Faith and Fair Dealing.
Kirk--these are copied from the filing. sorry for formatting and typos.
Hi - no worries about the formatting.
All you can do is argue your points and claim that your filing was timely, let the other side argue its points and then let the judge decide. That's really all you can do at this point.
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