Saturday, August 30, 2014

NEIL GARFIELD, OF LIVINGLIES, ON THE IMPORTANCE OF THE STATUE OF LIMITATIONS

Before You Sign Anything, File Anything, Consider the Statute of Limitations

 by Neil Garfield
With tens of thousands of cases running many years before foreclosure is started and with many cases ripe for dismissal for lack of prosecution, the Banks are in a full court press attempting to get modifications or even going to trial on cases they know are problematic at best. I am receiving scores of reports of cases dismissed on the grounds they are barred that the statute of limitations has run.
If grounds exist for dismissal (check with a lawyer who really knows) the case cannot be refiled if the statute of limitations has run. If the case has not started and you have been living in the home for years without paying, the statute may have already run or you might be able to “run the statute.” (Check with an attorney licensed in the jurisdiction in which the property is located).
The meaning of the statute of limitations is simple: everyone with a claim has a right to bring it. BUT the Courts will not entertain any action that is stale. There are two ways the case might be stale — (1) the statute of limitations which is by definition a statute passed by the legislature of each state and (2) the common law doctrine of laches that might be supplemented by statutes or rules of procedure (laches is rarely applied). Laches on its own is generally a weak defense. But combined with the one year rule in Florida, for example, for prosecuting the case forward, it might have more teeth. But you would need to show inaction for a long period of time (i.e., no suit filed) PLUS the failure to prosecute. There are specific rules of civil procedure covering the dismissal of a cause of action for failure to prosecute.
Applying the meaning of the statute as applied to mortgage foreclosures is apparent. The foreclosing party has sent a notice of default and acceleration because you didn’t make a payment or they have no sent a notice and you have not been making a payment. The time to sue on the note and mortgage is based is usually based upon the statute of limitations as applied to contracts, but there might be some states that specify mortgage foreclosures. If the “Bank” has run the statute of limitations they can never attempt to sue on the note or mortgage again and in non-judicial states they cannot file a notice of default and notice of sale.
There are things that delay or “toll” the statute of limitations like various payment plans or agreements like modifications (that could even re-start the statutory period), bankruptcy and anything else that prevents the claimant from filing the claim for damages or foreclosure. Each case must be examined as to the running of the statute of limitations. In Florida the statute is 5 years. So for example if the last payment you made was November of 2008, then the next payment due was in December of  2008. That is when the statute starts running. If the Bank in Florida, which is a judicial state, has not actually filed suit in foreclosure, they are probably now barred from doing so.
IMPORTANT TIP:
PRACTICE NOTE: THE BANKS ARE FREQUENTLY MAKING AN ERROR WHEN THERE IS A MODIFICATION AGREEMENT PRESENT THAT  MIGHT ENABLE YOU TO GET THE CASE DISMISSED FOR YOUR CLIENT AND, IF THE CASE IS STALE UNDER THE STATUTE, THE DISMISSAL COULD BE “WITH PREJUDICE” OR EVEN IF NOT WITH PREJUDICE IT WOULD AMOUNT TO THE SAME THING. The error they are making is that they take the date of the initial “default” (which of course can be challenged on many grounds that have been explained on this blog) and they sue on the default of the note instead of the the default in the modified note terms. The time to bring that up is as close to trial as possible when they can’t do anything about it. In Florida, this would force them to refile in the face of statutory requirements that requires them to be the owner of the loan.
For this reason I am suggesting to our own analysts as well as all the rest of the analysts assisting attorneys and pro se litigants to include the relevant statute of limitations in their report.
Here is a link that can assist you. I caution anyone about using this list. Things change so you need to look up the actual statute and the language of the statute might be such that only an attorney who has researched the statute will be able to gave an opinion as to whether it applies in your case. http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html
For homeowners and lawyers seeking litigation assistance please call 520-405-1688 or go to http://www.livingliesstore.com
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54 Responses

  1. Fossil Rock, on April 22, 2014 at 1:32 pm said:
    I’m researching the SOL issue here in Florida (judicial). In my situation, a previous foreclosure declared the mortgage accelerated, but the they voluntarily dismissed the case when I went after their counsel.
    Now there’s another case where they “accelerated” the mortgage again.
    No payments have been made since the previous case or anything else for that matter that would have reset the clock.
    Does the previous case acceleration still stand or the more current one?
    FR
  2. johngault, on January 7, 2014 at 5:09 pm said:
    Todd said:
    “But what if we entered into a trust arrangement and not a contract? With DOT is seems plain and unambiguous to me a trust was formed, not a contract.”
    Imo, yes, of course a trust is formed. It’s the trust in deed of trust.
    There’s a trustee of the trust, the one abandoned as soon as they feel like it (for a new one, prob some co. which they own). There are two forms of fee simple title – equitable and legal. The borrower generally retains legal while the trust is granted equitable. (or so I’ve always believed). The trust holds one form of title until the loan is retired. That’s why dot’s require a reconveyance v a release (which is used for a lien). The trust must re-convey to the homeowner the form of title granted to the trust. A non-judicial foreclosure of a dot is a quiet title action, essentially (we generally only think of a qt the other way around). The trustee “relieves” the homeowner of his legal title. Both forms of title are quieted in one party, the successful bidder at the sale. We granted the trust trustee the right to do that (but only for the lender and not some schmoe).
    Whether or not the note and the trust created by deed of trust actually constitute a contract (even acknowledging that there is a trust formed) , guess I can’t say definitely, though I’ve always thought so.
    You might try contacting that attorney in CO – Wm Bronchick (found in a link here at LL from a reader). He seems to be an authority on real estate.
    Pretty heady stuff you have there, Todd. Makes me feel like an eejit!
  3. KC, on January 2, 2014 at 11:57 am said:
    Just don’t go… “I know It All” & “My Way is the Best Way” on us. Heaven knows we have enough of that here.
    Every case if different, State Laws Vary and I like to Keep It Simple!
    You Young Man are Complicated … a Work in Progress!
  4. KC, on January 2, 2014 at 11:53 am said:
    Gibberish? I think NOT!
    Put them on Notice and wait to see if they file ……..
    Waiting… Waiting … Waiting …
    Oh Wait … SOL has run!
    Yes MS, you taught me a lot about the Accounting and I Thank You for That!
  5. masterservicer, on January 1, 2014 at 6:26 pm said:
    COMMENTS – would never discount what’s I’ve learnt from this website over the past five years. Through LL, I’ve been able to keep various servicers at bay for five plus years employing some of the strategies Neil advocated here, l
    THERE IS NO SERVICING AND NO SOL ON A DE-RECOGNIZED ASSET FAS 140, SFAS 140-3 ASC 310 320 380
  6. masterservicer, on January 1, 2014 at 6:12 pm said:
    Homeowner Wins on Statute of Limitations
    We are waiting for the order from Texas, but GMAC lost summary judgment due to standing, plus the statute of limitations ran out.
    Gibberish – I gave you the answers –
    who are you anyway
  7. masterservicer, on January 1, 2014 at 6:10 pm said:
    Editors Comments
    Sub-Servicer can’t claim the default, but they can accelerate the terms under the of the loan under the PSA.
    —————————————————————————————-
    This is a gift to every jack ash and knob jobber who loves sweet and sour pork in the morning and WON’T STOP TALKING ABOUT SERVICING & SUB SERVICING rights
    From Auditors attestation report for YOUR LENDER….
    As described in the accompanying 2012 Certification Regarding Compliance with Applicable Servicing Criteria, for servicing criteria 1122(d)(2)(i),1122(d)(2)(vi), 1122(d)(4)(iv), 1122(d)(4)(xi) and 1122(d)(4)(xiii), the Company engaged various vendors to perform the activities required by these servicing criteria.
    ***read **** read ***before you plead***** counsel ***** NG ***** read
    From Report – The Company has determined that NONE of these vendors is considered a “servicer” as defined in Item 1101(j) of Regulation AB, and the Company has elected to take responsibility for assessing compliance with the servicing criteria applicable to each vendor as permitted by Interpretation
    Forget FAS 140 (which you will not accept as evidence for the lost note ) and look to your own argument for the LOST NOTE – No Note No Servicing
    Do I know where the note went – You bet I do and no its time to charge a Kings ransom for the information you never accepted for free . NG Tell em lover …tell the where the note went Christine !
  8. KC, on January 1, 2014 at 6:03 pm said:
    That’s my Story and I’m sticking to It!
  9. KC, on January 1, 2014 at 6:02 pm said:
    And the Little Piggy said WEEEEE all the way home … ….
    Homeowner Wins on Statute of Limitations
    We are waiting for the order from Texas, but GMAC lost summary judgment due to standing, plus the statute of limitations ran out.
  10. christine, on January 1, 2014 at 4:02 pm said:
    Funny…
    I keep going back to the IRS and my not wanting to pay anyone’s salary. Apparently, that idea is really taking root everywhere as well.
    Wednesday, January 1, 2014
    The Biggest Swindle in World History!
    The “People” of the 50 Union states of the united States of America have never been required to file or to pay the income tax.
    In DOWNES v. BIDWELL Meador found that territories and insular possessions are “foreign” to the 50 Union states. It is clear that the U. S. is an alliance of the territories and insular possessions of the United States corporation within which we can find the Internal Revenue Service all are “foreign” to the 50 States of the Union.
    The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” The Constitution for the united States of America, Article 1, Section 8, paragraph 1.
    “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration hereinbefore directed to be taken.” The Constitution for the united States of America, Article 1, Section 9, paragraph 4.
    Investigation
    Investigation of the alleged Internal Revenue Service and the Bureau of Alcohol, Tobacco and Firearms disclosed a broad premeditated conspiracy to defraud the “People” of the 50 Union states. Examination of the United States Code, the Code of Federal Regulations, the Statutes at Large, Congressional Record, the Federal Register, and Internal Revenue manuals too numerous to list reveal crimes of such magnitude that words cannot adequately describe the betrayal of the American people. What was uncovered has clearly been designed to circumvent the limitations of the Constitution for the united States of America and attempt to implement the Communist Manifesto within the 50 Union states. Marx and Engles claimed that in the effort to create a classless society a graduated income tax could be used as a weapon to destroy the middle class.
    The Art of Illusion
    Magic is the art of illusion. Those who practice magic are called Magicians. They have created a web of obfuscation and confusion in the law. When the courts have ruled the obfuscation to be unconstitutional or unlawful the Magicians merely stepped outside jurisdiction and venue. By fooling the people they continued their crimes. These Magicians have convinced Americans that we have a status… that we do not “indeed” have. We have been misled to believe we must do things that are not required. Through the perversion of language (legalese) the US federal corporation promotes the fraud.
    No Law
    After years of search, re-search of Law, asking everyone in government including the IRS to produce a law that requires “People” to file and pay the federal income tax, many filings of requests under the Freedom of Information Act, and actually having brought suit against the IRS, we can assure you that there is no such law that mandates the “People” of the 50 Union states to file an Information Report (self-assessment). It is our conclusion that the 65 million Americans that have stopped filing and paying the fraud known as the income tax are the last remnant of real Americans, brave to the core. Also a conclusion based upon years of study that every “person” (no slip) that files and pays the federal income tax on April 15th does so only out of “paralyzing fear” of a terrorist organization known as the Internal Revenue Service. The Internal Revenue Service was not Created by Congress. The Bureau of Internal Revenue, and the alleged Internal Revenue Service were not created by Congress. These are not organizations or agencies of the Treasury department or of the united States of America. They appear to be operated through pure trusts administered by the Secretary of the Treasury (the Trustee). The Beneficiaries being the American “People.”
  11. carie, on January 1, 2014 at 3:15 pm said:
    added to my last post—the SERVICER is always the named “lender” on the IRS 1099 tax forms.
  12. carie, on January 1, 2014 at 3:14 pm said:
    Todd W said:
    “IRS has aided and abetted the tax fraud by failing to investigate failure of REMICS to form.”
    Indeed—AND—the IRS is NOT over the SOL…the “trusts” NEVER receive “payoffs” from foreclosures…this is not only tax evasion, but also securities fraud.
  13. christine, on January 1, 2014 at 2:38 pm said:
    Not bad for someone who just starts learning about foreclosure and left off at robo signing and whatever MSM has mentioned (very little, in fact)..
  14. Todd W, on January 1, 2014 at 2:08 pm said:
    One last “food for thought” as to how high level this scheme is. I was invited to a New Year’s Eve party last night by a high end builder friend ($1M+ houses) who has a bus. partner (West Point, Wharton MBA, civil engineer, founder of private equity funds and was former President of Enron So. America division for 10yrs- who reported to Jeff Skilling.
    While we talked last night, this guy who is currently CEO of a Canadian mining company, sophisticated, smart (far smarter than me) was one step away from top of Enron food chain, and even he didn’t know about the 3000+ “off balance sheet” entities that Enron did their derivatives trading/ manipulation of the market with. He lost his entire retirement, etc (as did other friends family members of mine who I worked in the oilfield with many years ago as a deep sea diver).
    I have an MBA (worthless compared to street smarts really) and have been playing Monopoly since I was 5 yrs old, so we talked about “off balance sheet accounting”, FAS 140, and manipulation of his company’s stock (traded on Toronto Stock Exch.) by likes of JPMorgan, Goldman, etc. trying to suppress the real value of commodities, just like they manipulated the housing market.
    He, like I, having learned what is really going on, were both dumbfounded that we had no idea how the scheme is carried out until an event (Enron collapse for him, hurricane Katrina for me) woke us up, but now it’s glaringly obvious.
    I told him it wasn’t until my eyes bled reading through thousands of pages of 10k’s, PSA’s, 424(b)(5) prospectuses, supplements, etc and found what I was looking for on page 96, footnote 10, that most people (investors, pension fund managers and especially homeowners) never get past the the first few pages. That is usually where the truth is buried on last page at bottom of a footnote.
    If they can pull the wool over the eyes of a guy this sophisticated, worldly, street smart, disciplined, former West Point officer with analytical engineering and financial background, what does that say for the average homeowner or “judge” who has to be a “generalist” in hearing all different cases (presuming arguendo the judge is not in back pocket of bank)???
  15. Todd W, on January 1, 2014 at 1:48 pm said:
    Christine- backed up with about 50+ emails but will get back w/you in about 24yrs. I have a “to do” list. But wanted to pass this on from a very “vanilla” story in Wash. Post on “getting your note [property] back” after you “pay off” a [purported] “loan”.
    Here is link and quote from reader. This could/should be the straw that breaks the prick banker/thieves backs. Imagine…….100,000 people suing to get back their personal property that directly effects the title to real property (roof over your heads)…..?? Just imagine.
    I’ve got one going, about to queue up number 2 on a purported “second equity line” that was “paid in full in 2007. I have the letter from Citi with the “zero” balance. Never got that note or DOT back either. That demand letter for return of my property (condition precedent to filing detinue case) is in the mail tomorrow. 2nd detinue case should be filed in about 30 days when they fail/refuse to return my property. fyi- We have about 60 more of these and those of you that “paid off” student “loans”, auto “loans”, equity “loans”, home improvement “loans”, and any other “loans” that can/were securitized ( refi payoffs) this is back door way to expose the obvious where you are now the credible plaintiff and the defendants are [rightly] the bona fide “deadbeats” as corporate persons.
    window
    7/27/2012 4:32 PM EDT
    Thank you very much for this article. We paid off our mortgage in 2009 and have been unsuccessful in our attempts to get anything from the mortgage company stating as such. On several occasions, we have requested official documents from them that verify the recognition of the loan being paid in full. Each time, they have told us that their company does not have a document that they send to customers who pay off a mortgage and insist that it is not the way business is done. They make us feel ridiculous, point out that their file states that the mortgage is paid off and that’s good enough; there can’t possibly be any problems in the future if there is no longer a loan. But we think otherwise. It has never made any sense to us. Why not give us a little piece of mind by typing up something?
    Anyway, after reading what your wrote, I contacted our county’s recorder. He was very sympathetic to our situation and sent us a copy of the release you mentioned (Satisfaction of Mortgage). It is so nice to know that we finally have a copy of an official document! I also checked with our insurance agent to make sure that the mortgage company was not listed on the policy. We had taken care of that 3 years ago, but it never hurts to ask. Great advice! Thanks again!
  16. KC, on January 1, 2014 at 1:22 pm said:
    Christine, I was not attacking you, its called constructive criticism.
    I follow you Todd, … they either wont or cant return our property taken from us under false pretenses. Simple Contract Law, State Court.
    Preventing FC is one thing … Getting Back what was Stolen is Another.
  17. christine, on January 1, 2014 at 12:51 pm said:
    Thanks Todd. Hope you can help the guy I sent you. Have you gotten in touch with my own attorney as you said you would?
    I do have a question and I think it needs to be asked once and for all: would you say that going the route you’ve taken is the easiest, most efficient way of fighting the bank? It seems to me, and I have been very vocal about it, that too many people have discounted the most simple defenses to end up lost in a case rendered so complicated that they can only lose.
    On this site, too many appear to grab at straws while making no headways whatsoever and it goes in cycles. For example, there was a time when QWRs was the big thing. Everyone would send QWRs. Garfield had one posted here and, as one of the big defense players said (Gardner or Cox, I forgot), “people would send QWRs that they pulled out of internet and which had absolutely not relevance to their own case. Judges had a field day with that and so did banks. In fact, many of those letters reinforced the idea that most people were completely ignorant, not very honest and that the bank was justified to foreclose on them.”
    Then, there were theories about securitization, trusts, insurance payout and all kinds of issues most judges won’t hear about and most attorneys won’t understand without a solid backgound in finance. Your own post today seemsl to indicate that you agree with me.
    You know my position: I believe in attacking. i believe in doing it in federal court and I believe in doing it on allegations that can be successful. If you had to take on the fight again from scratch, would you do it the same way? if you had to take it on today, what theories would you use, based on how the landscape has changed in the last years? What concerns me is that too many people blurt out too many questions proving that they don’t even understand the issues of their own case.
  18. Todd W, on January 1, 2014 at 12:22 pm said:
    In an effort to share with the group personal experiences that should be beneficial to others, I wanted to touch on two topics- 1) statute of limitations (“SOL”)- reverse application here 2) elements to form a trust. Both these topics are explored in the Maryland detinue case (only one I know of- Wetzelberger v. Friedman et al. Circuit Court for Baltimore Co., Md Case No. 03-C-13-009963) I filed in August 2013 for the return of my personal property ($438,000 note and DOT) that was due to me as grantor/trustor after a purported “loan” was “paid off” on 22 Dec 2006.
    I spent about an hour putting this together so I hope it is beneficial to others and those employing counsel.
    Two out of six defendants (MERS and Wells Fargo) attempted the SOL defense (generally 3yrs in Md) so I had the pleasure of dealing with it as Plaintiff. I blew it apart since most of us know SOL “trigger” starts to run on discovery of the cause of action generally.
    Since I have multiple agendas I’m pursuing in this chess game (I hope the banks are reading since I’ve caught them snooping) that “trigger” can be different depending on what “law” is applied to the case- trust law, contract law, commercial law.
    On defendant side, I’ve filed motions for clarification of jurisdiction asserted- at law, equity, commercial, administrative, corporate, etc. with case cites to back up motion and the court has ignored that motion for 2yrs. My presumption is they don’t want to disclose the actual jurisdiction asserted.
    Since Md utilizes deeds of trust, I’m advancing that a trust was formed- read a deed of trust in “Transfer of Rights…” it clearly says “[i]n trust” in every deed of trust I’ve read across the country, and further states enforcement of DOT is “in equity” (the exclusive jurisdiction of trusts), not at-law. Equity is also the jurisdiction of enforcement of legit mortgage foreclosures (and fraudclosure).
    The procedures to get into law and equity have been merged into “one cause of action” (excepting a few states that maintain chancery courts) but there are still two separate and distinct jurisdictions under one roof/courtroom.
    That said, only upon discovery of a cause of action does the clock start ticking. The presumption is we all entered into a contract, not a trust indenture (even DOT is presumed to be a “mortgage” and a “contract”).
    But what if we entered into a trust arrangement and not a contract? With DOT is seems plain and unambiguous to me a trust was formed, not a contract. That is sub-agenda of this detinue case to get this confirmed.
    Hang with me here. If a trust was formed there are 4 elements necessary- Intent, purpose, parties, specific trust res/property and you must have a method of formation (transfer, declaration,etc.) for the trust to form.
    If it was not my intent to form a trust with strangers- trustee and beneficiary, thinking I was just “getting a loan”, and I compel the judge (yet to be assigned to this detinue case) to state on the record trust law is the controlling law, then if due to mistake, it was not my intent to form a trust, I as grantor have the right to correct that mistake, even in an irrevocable trust (See Restatement of the Law on Trusts 3rd or 2nd-even if outdated-don’t have section in front of me but it’s there).
    If I didn’t intend to form a trust, then one of the elements is missing and the trust never formed (i.e. rights to property were never conveyed). If a mistake were allowed to stand it would be prejudicial and an imbalance of equities between the parties.
    For those of you still with me (no offense but this took me a while to figure out) the “burden of proof issue is one of the most significant distinctions and characteristics of trust law.” There is no obvious transition from the threshold burden phase to the substantive burden phase.
    “If the beneficiary makes a prima facie case, the burden of contradicting it or showing a defense will [then] shift to the trustee.” BOGERT § 871 at 156-57. See also 2A SCOTT ON TRUSTS § 172, at 452-53; BOGERT § 861 at 2-3. (Bogert- need to find the section).
    So, if the purported “beneficiary” (we know they are not real party in interest- but assuming arguendo) meets the threshold burden (copies of instruments- including copy of recorded DOT or mortgage) that threshold burden is allegedly enough since under trust law there is no obvious transition to the substantive burden phase.
    Is this why we collectively get obstructed from getting any discovery, since the threshold burden (copies) are enough to prove the prima facie case under trust law and any further evidence would be unduly “burdensome” (hence protective Orders- have dealt with that a lot)??
    I can’t even get Req. for Admissions and Req. for Production to be enforced in cases across the country. Every time we try to compel production or file Motion for Sufficiency when they duck RFA those motions usually get buried or ignored.
    Equity maxims (both enabling and restrictive) are supposed to be so well known they are more often implied than express (i.e. “judge” may be applying the equity maxim – “equity regards as done that which ought to be done” and not even disclosing it to you).
    Further under trust law (not contract law) no party to a trust needs to know or understand a trust is formed. The proof is manifestation of intent (like your signature)- Sec 23 Restatement of Law on Trust 2d. Gilbert’s Law Summaries on Trust. p. 19 Sec. 67, See LGVA v. BELLEVALE FARMS, 0228 (Md. App. 11-30-2011).
    So take a look at your cases especially those with DOT’s (and mortgages) and see if you can nail down the court to state on the record the actual jurisdiction being asserted.
    Our efforts have been obstructed, despite Md. cases stating if you don’t object to jurisdiction being asserted at trial court level you WAIVE it on appeal. How can one object to the jurisdiction if the “court” won’t disclose it to you despite diligent efforts?
    Digest the above, it’s food for thought since we know the REMIC’s never formed as there was no present transfer of the trust res/property. That’s a fact in just about every fraudclosure. IRS has aided and abetted the tax fraud by failing to investigate failure of REMICS to form.
    But it may be productive to start exploring the possible trust arrangement that is possibly being enforced with the homeowner as grantor/trustor and you don’t even know it.
    Evidence (at least to me) that this is possibly the case is a MA SJC justice during oral argument in Eaton v. FNMA SJC-11041 said (paraphrasing) to homeowner counsel “I have a mortgage and if I don’t pay, they take my house. Why does it matter who I pay?” Counsel for FNMA (paraphrasing) said “the hypothetical double liability to two different lenders has never materialized”.
    I am drafting a letter to that MA SJC judge with evidence from detinue case- they won’t/can’t return my property –for why it most certainly does “matter”.
    Seems to be that judge was saying “we understand the technical issues, forged docs, etc, but at end of day if homeowner doesn’t pay, they can’t keep the house” (equity sees as done that which ought to be done- possibly implicitly applied).
    We know about the unjust enrichment/ windfall for the banks, they got paid multiple times, etc and it would be inequitable for the banks to keep all the profits and take the house too, but I’ve shifted (at least in detinue case) to advancing the enforcement of my rights under trust law— with goal of setting precedent not only in Maryland but for other states to look to via “full faith and credit” clause.
    For those employing counsel with trained legal minds, share with them and let me know if they think I am a quack with nonsensical “theory”. Would welcome any comments as I think this could be very beneficial. todd@surefirehomeretention.com
    Hope it’s helpful.
  19. christine, on January 1, 2014 at 11:42 am said:
    Dulpeck,
    And once agin, the question itself “What is the SOL in Maryland” makes no sense. It all depends on what you allege. Are you alleging breach of contract? Negligence? Fraud? Breach of statute? In a state action? Federal action? For the umpteenth time, the allegations trigger the SOL.
    KC:
    I don’t know what is wrong with you and I certainly don’t see why, all of a sudden, you have to attack me when I try my darn best to ignore you. If it’s the way you want to be, you go right ahead. People who constantly bring everything back to themselves have a hell of a problem I won’t waste my time on.
  20. Dulpeck, on January 1, 2014 at 9:38 am said:
    Christine,
    I would never discount what’s I’ve learnt from this website over the past five years. Through LL, I’ve been able to keep various servicers at bay for five plus years employing some of the strategies Neil advocated here, like rescinding my loan and to list same as unsecured in a bankruptcy. I did that in a chapter 13 which I dismissed and eventually filed a chapter 7. Imagine the stare I received from the bk trustee during a creditors meeting when I told him my loan was unsecured. He sarcastically stated that “do you want a free house” ? He kept my chapter 7 bk open for almost two years while fishing for a smoking gun. He requested years of bank statements from us and other financial documents. So, I would never disparage what is written here, because had I not discover this website in 2008 , my family would have been kicked out a long time ago. Neil, happy new year and may God continue to keep and protect you. Some of us were ridiculed by clueless attorneys five years when ever they are reminded that the banks are illegally foreclosing on helpless homeowners. One of them even called me a day before our lift stay hearing and said” are you aware that you are going to lose tommorrow”?I defied him and informed him that he has sold out to the other side and he should inform the bk court that he’s no longer representing me.Thank you Neil,my family is grateful and I would continue to read and yes implement when necessary the “BS” in LL.
    In my chapter 7, I listed the lender as unsecured and they filed a motion to lift stay but withdrew same a day before the hearing after my attorney through my urging responded aggressively questioning their standing and submitting a copy of my rescission letter as exhibit.
    The reason I posted the question was simply to solicit a clarification from this august group of resilient homeowners whether the SOL in Maryland is 3 years or as I’ve been told by clueless attorneys that it’s 12 years instead of three as the latter is applicable to any agreement under seal.
    Once again, thanks Neil for saving countless families from the greedy hands of pretend lenders.
  21. jim, on January 1, 2014 at 9:32 am said:
    How can the statute of limitations run in favor of an imposter who never had a right to payment in the first place. If the debt never existed running limitations now confers a right to steal the property? Wonderful
  22. masterservicer, on January 1, 2014 at 2:48 am said:
    Explain how the mortgage lien is going to be lifted from Title after the statute runs off?
    The lien of record at time of funding was never re-conveyed.
    -Title was transferred into trust to trustee
    -Said transfer was free of liens and encumbrances
    -Borrower is seised of the estate
    -Title transferred subject to the liens of record
    ** Your contract or security agreement is how. Read it!
    How can a Trustee claim a default on a note that was never transferred to the trust?
    ** Lender is the trustee (as Mers Corp , the beneficiary of a installment sale contract
    ** There is no note – it is lost to the prepaid interest created from the consideration for the note transferred into a depositors account that is discounted to the number of scheduled payments over five years
    Sub-Servicer can’t claim the default, but they can accelerate the terms under the of the loan under the PSA.
    ** Wrong – a lender may accelerate – but the correct claim is for restraint on alienation by lache. Interest cannot accrue to trigger the ceiling is typically 1.25 to the notes face value under FAS 140.
    Why ? The interest is “prepaid” This is how these transactions were rated AAA by Moodys and Duff.
    Christine – your trifling, petulance and ignorance of the subject matter should not reflect on our judges and courts. For Cod’s sake – attack NG ; he talks about nothing here …..
  23. KC, on January 1, 2014 at 12:07 am said:
    I always knew how to keep them at bay, ….. for starters I was not presented with, nor did I acknowledge or accept the terms of any mortgage. Under Illinois Law ..that makes the mortgage VOID PERIOD! The loan is unsecured and is unenforceable against me or the Estate. They didn’t want to be reasonable after they charged off my husbands loan and destroyed our chain of title, …. so I flushed them altogether.
  24. KC, on December 31, 2013 at 11:52 pm said:
    Christine.—-> LOOK” … there’s a bottle of Wine, it cant breath, you should go do CPR on it.
    The only one here with a win? hahahahaha Scratch That One!!
    I didn’t have to win an appeal because they didn’t take me to court. You don’t call that a win?
    Happy New Year My Friend!
  25. christine, on December 31, 2013 at 11:18 pm said:
    Dulpeck,
    No one can answer outside of specific context. The SOL is triggered by the allegations. It could be 2 years (on negligence, for example) or 20 years (breach of contract) and anywhere in between, depending on state or federal law.
    Anyone giving you a one-size-fits-all is:
    1) Not an attorney;
    2) Not a litigator (and you can be one without being an attorney)
    3) Definitely a bullshitter.
    Do you want truth or BS? Stick around and the BS here will kill you. How do I know? No one here on this site had won jack. Except me and i never even broached LL theories. Pick your adviser.
  26. KC, on December 31, 2013 at 10:31 pm said:
    Dulpeck, you could follow link Neil posted with his article and do your own homework, or you could hire an attorney.
    Just Thinking Outloud Again …Sorry If I Offended Anyone..
  27. KC, on December 31, 2013 at 10:23 pm said:
    Retake 2013
    State Laws Vary, you need an Attorney in your Jurisdiction.
  28. Dulpeck, on December 31, 2013 at 10:04 pm said:
    Christine, my question may not make sense but after reading Neil’s article,it’s clear that a lot of homeowners who are not supposed to be foreclosed upon as a result of time barred laws in their respective states,are losing their homes because they are ignorant of this powerful tool. They may still owe the debt but it old not be enforced in the ourt of law according to Neil. I hope someone would now answer my question regarding the statute of limitation in Maryland and Virginia. Thanks in advance.
  29. christine, on December 31, 2013 at 9:41 pm said:
    “Christine, your tax dollars went to pay the interest on the admitted debt, and also the interest on the 9 trillion in FRC treasuries, which were issued for the cost of production”
    I don’t know that. Hence the questions I asked from every senator and representative (and i can prove it) before informing them I would no longer pay their salary, over a year ago.
    Nobody bothered to answer. I still won’t pay, Actually, there is NOTHING against sending everyone of those buffoons a QWR, In my book, there’s no debt. Only the one they contracted by lying to me.
    And in the end, I’ll croak just the same. My kid will know what fighting looks like though. And she’ll know something even more important: hold on to those passports.
    What a load!
  30. KC, on December 31, 2013 at 9:40 pm said:
    Neil also said .. and I agree, ..( but we didn’t need, nor wanted a mod)
    .There are things that delay or “toll” the statute of limitations like various payment plans or agreements like modifications (that could even re-start the statutory period), bankruptcy and anything else that prevents the claimant from filing the claim for damages or foreclosure. Each case must be examined as to the running of the statute of limitations. In Florida the statute is 5 years. So for example if the last payment you made was November of 2008, then the next payment due was in December of 2008. That is when the statute starts running. If the Bank in Florida, which is a judicial state, has not actually filed suit in foreclosure, they are probably now barred from doing so.
  31. KC, on December 31, 2013 at 9:38 pm said:
    Neil said … And I Agree…..as I am Living Proof.
    The meaning of the statute of limitations is simple: everyone with a claim has a right to bring it. BUT the Courts will not entertain any action that is stale. There are two ways the case might be stale — (1) the statute of limitations which is by definition a statute passed by the legislature of each state and (2) the common law doctrine of laches that might be supplemented by statutes or rules of procedure (laches is rarely applied). Laches on its own is generally a weak defense. But combined with the one year rule in Florida, for example, for prosecuting the case forward, it might have more teeth. But you would need to show inaction for a long period of time (i.e., no suit filed) PLUS the failure to prosecute. There are specific rules of civil procedure covering the dismissal of a cause of action for failure to prosecute.
    Applying the meaning of the statute as applied to mortgage foreclosures is apparent. The foreclosing party has sent a notice of default and acceleration because you didn’t make a payment or they have no sent a notice and you have not been making a payment. The time to sue on the note and mortgage is based is usually based upon the statute of limitations as applied to contracts, but there might be some states that specify mortgage foreclosures. If the “Bank” has run the statute of limitations they can never attempt to sue on the note or mortgage again and in non-judicial states they cannot file a notice of default and notice of sale.
  32. christine, on December 31, 2013 at 9:26 pm said:
    Dulpek,
    Your question makes no sense.
    SOL on what? Negligent mortgage servicing? Grossly negligent mortgage servicing? Fraudulent mortgage servicing?
    Breach of contract? Intentional misrepresentation? Misconduct? Gross misconduct?
    Breach of statutory law? Which one(s)?
    Get an attorney.
    Unreal…
  33. KC, on December 31, 2013 at 9:10 pm said:
    Iwantmynpv … actually she did. She learned it the hard way.
    And Iwantmynpv, I was paying any attorney before you knew what hit you. And Iwantmynpv, The only lawsuit I am involved in is the one I filed. Appeal? I have the full payoff available to pony up for title … can you say the same thing? Good Night Iwantmynpv, stay off the roads tonight.
    Thank You 2013 for All the Lessons …
    I’m ready for 2014 …
    HAPPY NEW YEAR EVERYONE!
    MAY 2014 BRING YOU MANY NEW BLESSINGS!
  34. Dulpeck, on December 31, 2013 at 9:07 pm said:
    What’s the statute of limitation for mortgages in Maryland and Virginia?
  35. Trespass Unwanted, on December 31, 2013 at 8:59 pm said:
    Canon 6998
    No judge, magistrate or justice of the peace may adjudicate any matter of law within a competent forum of law or oratory unless they are presently a valid Trustee under Oath and secondly prepared to demonstrate under Oath the exemplary character of a valid Trustee or valid Fiduciary:
    (i) As a valid Oath is required to create and sustain the Office judge, or magistrate or justice of the peace, the absence of a valid Oath of Office means such a person is the worst kind of imposter an without any legitimacy whatsoever; and
    (ii) As any adjudication concerning rights or property requires exemplary character, any judge, magistrate or justice of the peace that is unwilling or refuses to be entrusted under Oath by all parties to perform in good faith, good character and good conscience is not a valid Fiduciary.
    Trespass Unwanted, Creator, Corporeal, Life, People, State, Free, Independent, In Jure Proprio, Jure Divino
  36. iwantmynpv, on December 31, 2013 at 8:57 pm said:
    The reason everyone keeps losing? They all miss the simple stroke, and want to be clever in front of a Judge, whom also has no idea what is going on. The Judge simply assumes the banks attorney is smarter – because you were dumb enough to be in front of him/her without one.
    The Judge may be three days before her bleed, or his wife has rebuked him in the Kings Lair for two weeks because he was caught paying attention to her friend Mildred at the squash tournament. Who cares
    TSMIMITW
  37. iwantmynpv, on December 31, 2013 at 8:52 pm said:
    Christine, your tax dollars went to pay the interest on the admitted debt, and also the interest on the 9 trillion in FRC treasuries, which were issued for the cost of production.
  38. iwantmynpv, on December 31, 2013 at 8:49 pm said:
    I thought that the State Statute commenced upon the “acceleration letter”, not the payment default.
    Explain how the mortgage lien is going to be lifted from Title after the statute runs off?
    How can a Trustee claim a default on a note that was never transferred to the trust?
    Sub-Servicer can’t claim the default, but they can accelerate the terms under the of the loan under the PSA.
    KC, are you insane? Why would your Greart Grandma make comments like, “when the SOL has run, all that is left is SOS”?
    Your Great Grandma never said that! You are just making things up.
    I wish you guys a happy New year, and KC, I hope you pony up the money for an attorney to at least help you navigate the appeal process. It’s just like Great Grandma would say…
    “It’s much warmer inside the heated house, and you should hire someone to keep things that way”
    TSMIMITW
  39. christine, on December 31, 2013 at 8:09 pm said:
    “Excerpts from “forthcoming” amended complaint:”
    How long should we wait until it is posted? Because “forthcoming” means just that: it is coming… forth! As in: being -or in the process of being- published.
    And if it’s still in the gestation phase, being dreamed of, still cooking and not yet completely ready to pop, it’s only blablabla.
    How on earth can anyone expect from short-attention-span judges, with families and worries of their own, to read through the ad nauseam, left-hand, digital self-serving manipulation those “forthcoming” cases keep flaunting while going nowhere?
    Judges are people. With people’s concerns: I work hard. I paid for a long time. My money was not applied where it should have been. i asked questions and was rebuffed. So… I stopped paying. Where did my money go and why is everyone refusing to tell me?
    Same as… I paid taxes … for so many years. This country is going to hell in a hand basket. Where did my money go? Better yet: why should I send more?
    I am a nobody who just happened to win on appeal on the “where did my money go” theory. Get off the high-and-mighty “it’s for the moral principle of it” crap and down to business: where did the money go and why should we send more to where it keeps being grossly misplaced.
    Nebulous theories need not apply.
    End of story.
  40. The A Man, on December 31, 2013 at 7:33 pm said:
    Happy New Year and G-d Bless America
    Neil and company May G-d give you health and wisdom.
  41. usedkarguy, on December 31, 2013 at 6:31 pm said:
    “…..a kinder, gentler, machine-gun hand
    Keep on rockin’ in a free world!”
  42. usedkarguy, on December 31, 2013 at 6:26 pm said:
    just insert your originators, the sponsors, and the CDO owners, and you have it..
  43. usedkarguy, on December 31, 2013 at 6:00 pm said:
    Maher, well said.
    availability of knowledge on behalf of the plaintiff to discover the fraud can trip the trigger, too. Fraud SOLs vary depending on state and other titles.
  44. masterservicer, on December 31, 2013 at 5:13 pm said:
    Excerpts from forthcoming amended complaint :
    1.Defendants Countrywide Home loan Inc “CWHL Inc” is the originating lender shown on the subject HUD 1 Statement. JPM Chase is the prior lien of record for the beneficiary payoff statement issued into closing to closing agent and escrow settlement
    2. Defendants include Bank of America N.A. who diverted the alleged borrower wire into an offshore depositors account and tax deferred investment fore in a Special Purpose Entity
    3. Defendants JPM Chase who is a previous lien holder is the real party of interest for amount it was due and never paid as intended by the mortgagor.
    4. Defendants are member Bank officers and directors who are financing the common stock shares issued from the borrowers ABA wire into settlement that was rerouted to the seller under the pooling and servicing agreement. JPM Chase is the seller who transfers its obligation ot eh Fed to CWHL Inc by financing said mortgage amount as an installment sale contract
    5. Defendants collectively participate in this clandestine secretive and opaque financing scheme devised to create twice the value of the wire for the purported defaulted subject loan [paid in capital; borrower obligation, prepaid interest bond holders equity in assets pledged to the Royal Bank of Scotland under the PPM registered as Harborview Mortgage Backed Securities Series 12 .
    6. Defendants agents are foreclosing attorneys invoking the FDCPA who are seeking to perfect title for a mere interest in title.
    7. Defendants claims are made for reconstituted value under post TARP 2008 legislation using short title devises and means citing recovery of lost basis in assets for “abandoned assets” by enforcing an impostor mortgage for the loan the borrower is alleged to have received as shown on the closing agents HUD 1 settlement statement.
  45. masterservicer, on December 31, 2013 at 4:53 pm said:
    Paranoia strikes deep
    Into your life it will creep
    It starts when you’re always afraid
    Step out of line, the men come and
    take you away
    We better stop
    Hey, what’s that sound?
    Everybody look – what’s going down?
  46. The A Man, on December 31, 2013 at 3:31 pm said:
    How to recuse a Judge. This is war guys. In war you have to show the other side you are willing to go the distance at any price. That is why the suicide bombers beat the almighty United States war machine. The pretty much bankrupt the United States.
  47. KC, on December 31, 2013 at 2:55 pm said:
    The SPE are essential to the banks as they used mortgages offered at a prevailing rate to raise investor funds at fraction of the cost – i.e. your payments financed the waterfall
  48. The A Man, on December 31, 2013 at 2:30 pm said:
    Yeah Judge where did my mony go and most important where is it gonna go.
    Hey Judge you wanna buy the Brooklyn Bridge I got a great deal for
  49. KC, on December 31, 2013 at 2:10 pm said:
    Where did my Money Go?
  50. The A Man, on December 31, 2013 at 1:16 pm said:
    christine see when you stay focused it is a pleasure to read your comments. I know it is hard and this whole process is extremely irritating.
    broken chain of title = unjust enrichment for banksters only.
    Judge in your mind I might be getting a free house but they got multiple free houses using my signature under false pretenses.
  51. Trespass Unwanted, on December 31, 2013 at 1:01 pm said:
    Common law, eh?

    56 minutes in Karl will discuss elements of that thing (smile).
    Who knows maybe the words, trespass, and Creator gets mentioned as he communicates his knowing.
    Trespass Unwanted, Creator, Corporeal, Life, Free, Independent, State, People, In Jure Proprio, Jure Divino
  52. christine, on December 31, 2013 at 10:47 am said:
    Once again, this is a defensive position article. Allegations trigger SOL. And any non judicial case can be turned into a judicial one by being proactive and going on the attack first. I know i sound like a broken record but homeowners no longer have any excuse for being on the defensive and at the mercy of banks. I’m not talking about old cases when people didn’t know what was going on and were effectively victimized. I am talking about recent cases when so much has already been uncovered and people are still waiting for the other shoe to drop.
    There is no more any excuse for anyone to be foreclosed on. Wait-and-see is the most dangerous posture anyone should allow himself to be in. And don’t wait for government to do anything. It’s up to you.
  53. The A Man, on December 31, 2013 at 10:14 am said:
    what about non judicial states.
  54. KC, on December 31, 2013 at 9:56 am said:
    Right on Target Neil! SOL Works for Me!
    As Great Grandma would say …
    When the SOL has run, all that is left is SOS. TeeHeeHeeHee
    Now about Christines comments in the previous article about two mortgages .. the altered one is da bomb …. I have both!
    Kaboom!



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