JDSupra: It isn't the crime — it is the cover up

For further information please call 954-495-9867 or 520-405-1688

==============================

Bryan G. Scott has written an excellent article that should be read in its entirety at http://www.jdsupra.com/legalnews/its-not-the-crime-its-the-cover-up-e-39616/

This article runs to the heart of the mortgage mess, the cover-up and the potential impact on past, present and future foreclosures in the application of statutes of limitation relating to causes of action for violation of the truth in lending act, statutory remedies, and common-law actions in negligence and fraud. Using law from construction defects suits, the author has identified key factors in challenging the defense of the statute of limitations.

Because of the obvious danger posed by dishonest defendants concealing defects to take advantage of the statute of repose, many state legislatures have enacted fraud exceptions to their statutes of repose. The North Carolina statute of repose explicitly excludes “any person who shall have been guilty of fraud, or willful or wanton negligence” in the course of improving real property, and further excludes any person who has “wrongfully concealed” the fraud or willful or wanton negligence. N.C. Gen. Stat. § 1-50(a)(5)(e). Establishing the fraud or willfulness or wantonness necessary to invoke this exception is a high standard and typically requires proving the contractor or developer deliberately covered or concealed defects that it knew or should have known of in conscious disregard of the eventual owner’s rights. Where the defendant’s actions do not rise to this level, the North Carolina statutory exception does not apply.

[EDITOR’S NOTE: We already know that the servicers, investment banks and originators committed various acts of forgery, perjury, fabrication, robo-signing and other things that NO BANK WOULD ACCEPT IF THEY WERE ON THE OTHER SIDE OF THIS ISSUE. They continue to hide the true facts, cover-up and otherwise obscure or wear down beleaguered homeowners. These are facts that lay solely within the care, custody and control of the banks who control the servicers and the trustees. The investors, trustees and borrowers are considered barred from even inquiring into the nonexistent transactions that lay at the base of the chain of fabricated documentation and the only way to get it is through illegal means that cannot be used in court or discovery which the courts won’t allow. In my opinion there are very few TILA violations where the statute of limitations should bar a claim because the basic facts of the loan contract have been withheld and intentionally misrepresented.]

The North Carolina Court of Appeals reaffirmed the application of equitable estoppel to construction defect disputes in its September 2014 decision in Trillium Ridge Condominium Association, Inc. v. Trillium Links & Village, LLC, No. COA14-183, ___ N.C. App. ___ (Sept. 16, 2014) (slip op.).

As explained in Trillium Ridge, equitable estoppel is available in proper cases under North Carolina law to bar a defendant from relying on either a statute of limitations or statute of repose. Equitable estoppel requires “(1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; (3) knowledge, actual or constructive, of the real facts.” White v. Consol. Planning, Inc. 166 N.C. App. 283, 305 (2004), disc. review denied, 359 N.C. 286 (2005). The party asserting the defense must have “(1) a lack of knowledge and the means of knowledge as to the real facts in question; and (2) relied upon the conduct of the party sought to be estopped to his prejudice.” Id. at 807. Furthermore, the plaintiff must have been induced to delay filing its legal action by the defendant’s misrepresentations. Jordan v. Crew, 125 N.C. App. 712, 720, disc. review denied, 346 N.C. 279 (1997).

Tags: concealment of facts, construction defencts, contract, equitable estoppel, foreclosure, fraud, North Carolina, TILA, Trillium Ridge
Posted in Uncategorized |