A Sydney Sullivan Report
Source: Stopforeclosurefraud – HSBC v CLARK-MOORE | NY SC – As this action is time-barred, it cannot be commenced again and the controversy has therefore reached an ultimate outcome.
This is a most interesting case. Statutes of limitations exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it would have been discovered with reasonable efforts. In foreclosure cases there have been controversies stemming at times from the games the servicers play with “trial” payments and modifications.
Many statutes of limitations are actual legislative statutes, while others may come from judicial common law. Source: Cornell University Law School, Legal Information Institute. Both federal and state have various statutes and federal bankruptcy statutes of limitations that may even trump the others.
Here, in CLARK-MOORE, the Supreme Court of the State of New York clarified several controversies found in other circuits by specifying precisely when the SOL begins, “by the commencement of the first action” simply stating:
The Supreme Courts refers to UMLIC VP, LLC v. MELLACE, 19 A.D.3d 684 (2005) where it notes that “the Supreme Court correctly determined that the mere acceptance of a partial payment of the accelerated debt by the previous holder of the subject note was not an affirmative act revoking the acceleration and thereby halting the running of the statute of limitations (see Lavin v. Elmakiss, 302 A.D.2d 638 ).”
Lavin details the difference between unpaid installments and acceleration.
“The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage (see Loiacono v Goldberg, 240 A.D.2d 476, 477; see also CPLR 213 ; Saini v Cinelli Enters., 289 A.D.2d 770, 771, lv denied 98 N.Y.2d 602).”
Many courts look at the four or six year period, depending upon the state, as the final statutory time, i.e. as in an “action may be commenced at any time within six years after the person who is entitled to bring the same discovers or should have discovered, the existence of the cause of action.” Basically, it appears this is saying to the litigator, if you knew or should have known from your first blush, there were 4-6 years from the cause to commence an action – thereafter, the attorneys advise us, you are likely too late – SOL.
As Justice Hinrichs pens in Clark-Moore,
“As the action is time-barred, it cannot be commenced again and the controversy therefore has reached an ultimate outcome.”
It’s a good case to read, dissect and research noted case law. See StopForeclosureFraud for a copy of the Order on Scribd.
Thank you sooo very much for keep fighting for us! Love you!
Unfortunately, my World Savings/Wachovia/Wells Fart Go loan have been mediated almost 8 years I was told the Wells Fart Go rejected our AG office also, they said it was due to I didn’t have so much money in my account after all these years without paying the loan.
When i clicked HICKS vs WELLS FARGO BANK | FL 5DCA – the complaint was time barred and must be dismissed with prejudice because the suit was not commenced within five years of the default date alleged in the complaint IN THE DISTRICT COURT OF APPEAL OF THE STATE OF…
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I don’t know why. I have the Fart Go bank and have been going through “mediation” for 8 years, still doesn’t go anywhere, the day before just refused AG office request for the loan mod too, even though my interests has been 6.49% for many years. The bank really knows what it’s doing. – the Fart Go told AG office they don’t see I have so much money in the bank, and also my NPV is not qualified.
All of this even after 2 badface certificates, doesn’t matter; the World Savings cheated me, doesn’t matter… all doesn’t matter, what matters is the bank wants to refuse my loan mod! Thank you,
Try to get whatever current process is active dismissed, on any grounds (not SOL). Then, any subsequent suit would be barred as time-limited, assuming 8 years have passed since acceleration.