New Jersey Courts retroactively applies Fair Foreclosure Act: Upholds Statute of Limitations

See:http://www.law.com/sites/articles/2016/07/15/unpublished-opinions-for-the-week-of-july-18-20116/?slreturn=20160615173820

15-4- 9718 Anim Inv. Co. v. Shaloub, N.J. Super. Chan. (Jerejian, J.S.C.) (13 pp.) Defendants borrowed $178,000 from Mina Investment Co. in September 1990, executing a mortgage in favor of MERS as nominee for Mina the same day. Defendants defaulted on the mortgage in November 1990.

The mortgage was assigned to plaintiff in 1997. Notice of intent to foreclose was sent by plaintiff’s servicer in February 2015. Suit was commenced in September 2015. Defendants moved for summary judgment in February 2016. Both parties assumed that the case was governed by N.J.S.A. 2A:50-56.1(c), which provided that an action to foreclose a residential mortgage could not be commenced after 20 years from the date on which the mortgagor defaulted.

Based on that assumption, plaintiff argued that the date of default was the maturity date stated in the mortgage – Oct. 1, 1995 – and that the running of the statute of limitations commenced on the maturity date, providing it until Oct. 1, 2015, to file timely a complaint. Defendants argued that the date of default was Nov. 1, 1990, the date they failed to make their first monthly payment and, accordingly, the running of the statute of limitations commenced on Nov. 21, 1990, 20 days after they failed to make their first monthly payment, resulting in the expiration of statute of limitations on November 22, 2010.

 

The court found that N.J.S.A. 2A:50-56.1 of the Fair Foreclosure Act, which took effect on Aug. 6, 2009, applied retroactively to this action. It then found that N.J.S.A. 2A:50-56.1(a) was applicable and under that provision, the statute of limitations was triggered by the date fixed for making of the last payment or the maturity date, i.e., Oct. 1, 1995. Thus, applying the plain language of the limitations period described in subsection (a), an action to foreclose on the mortgage at issue was timely if commenced no later than six years from Oct. 1, 1995. Because the complaint was filed after the running of the six-year statute of limitations pursuant to N.J.S.A. 2A:50-56.1(a), the court found that it was untimely and plaintiff was time-barred from filing a foreclosure complaint. Therefore, the court granted defendants’ motion. [Filed June 30, 2016]

4 Responses

  1. so lets look at what happen a the closing of the mortgage CONTRACT SHELL WE.

    1/ MORTGAGE AND NOTES, SAYS A ( SPECIFIC LENDER) GAVE YOU MONEY, ( AS WE KNOW THAT DIDNT HAPPEN. )

    2/ HOME OWNER WAS TOLD AT CLOSING AND BEFORE CLOSING THAT THE NAMED LENDER WOULD SUPPLY THE FUNDS AT CLOSING, AND WAS ALSO TOLD BY THE CLOSING AGENT , THE SAME LIE.

    3/ THERE ARE 2 PARTYS TO A CLOSING OF A MORTGAGE AND NOTE, 1/ HOMEOWNER, 2/ LENDER.

    3/ Offer and acceptance , Consideration,= SO HOMEOWNERS SIGN A MORTGAGE AND NOTE, IN CONSIDERATION of the said lender’s promises to pay the homeowner for said signing of the mortgage and note.

    4/ but the lender does not, follow thru with his CONSIDERATION. I.E TO FUND THE CONTRACT. AND THE LENDER NAMED ON THE CONTRACT, KNEW ALL ALONG THAT HE WOULD NOT BE THE FUNDING SOURCE. FRAUD AT CONCEPTION. KNOWINGLY OUT RIGHT FRAUD ON THE HOMEOWNERS.

    5/ THERE ARE NO STATUES OF LIMITATIONS ON FRAUD IN THE INDUCEMENT, OR ANY OTHER FRAUD.

    6/ SO AS NEIL AND AND LENDING TEAM, AND OTHERS HAVE POINTED OUT, SO SO MANY TIMES HERE AND OTHER PLACES,
    THERE COULD NOT BE ANY CONSUMMATION OF THE CONTRACT AT CLOSING,BY THE TWO PARTY’S TO THE CONTRACT, IF ONLY ONE PERSON TO THE CONTRACT ACTED IN GOOD FAITH,
    AND THE OTHER PARTY DID NOT ACT IN GOOD FAITH OR EVEN SUPPLIED ANY ( CONSIDERATION WHAT SO EVER AT CLOSING OF THE CONTRACT.) A MORTGAGE AND NOTE IS A CONTRACT PEOPLE.

    7/ SO THIS WOULD GIVE RISE TO THE LAW OF ( RESCISSION).

    . A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.

    AND THE BANKS CAN SCREAM ALL THEY WANT, IF THE PRETENDER LENDER THAT IS ON YOUR MORTGAGE AND NOTE, DID NOT SUPPLY THE FUNDS AT CLOSING, AS WE ALL KNOW DID HAPPEN, THEN THE MORTGAGE CONTRACT IS VOID. AND THERE WAS NO CONSUMMATION AT THE CLOSING TABLE, BY THE PARTY THAT SAID IT WAS FUNDING THE CONTRACT.

    CANT GET MORE SIMPLE THAT THAT.

    https://en.wikipedia.org/wiki/Contract

    Contract law
    Part of the common law series
    Contract formation
    Offer and acceptance Posting rule Mirror image rule Invitation to treat Firm offer Consideration Implication-in-fact
    Defenses against formation
    Lack of capacity Duress Undue influence Illusory promise Statute of frauds Non est factum
    Contract interpretation
    Parol evidence rule Contract of adhesion Integration clause Contra proferentem
    Excuses for non-performance
    Mistake Misrepresentation Frustration of purpose Impossibility Impracticability Illegality Unclean hands Unconscionability Accord and satisfaction
    Rights of third parties
    Privity of contract Assignment Delegation Novation Third-party beneficiary
    Breach of contract
    Anticipatory repudiation Cover Exclusion clause Efficient breach Deviation Fundamental breach
    Remedies
    Specific performance Liquidated damages Penal damages Rescission
    Quasi-contractual obligations
    Promissory estoppel Quantum meruit
    Related areas of law
    Conflict of laws Commercial law
    Other common law areas
    Tort law Property law Wills, trusts, and estates Criminal law Evidence

    Such defenses operate to determine whether a purported contract is either (1) void or (2) voidable. Void contracts cannot be ratified by either party. Voidable contracts can be ratified.
    Misrepresentation[edit]

    Main article: Misrepresentation
    Misrepresentation means a false statement of fact made by one party to another party and has the effect of inducing that party into the contract. For example, under certain circumstances, false statements or promises made by a seller of goods regarding the quality or nature of the product that the seller has may constitute misrepresentation. A finding of misrepresentation allows for a remedy of rescission and sometimes damages depending on the type of misrepresentation.

    There are two types of misrepresentation: fraud in the factum and fraud in inducement. Fraud in the factum focuses on whether the party alleging misrepresentation knew they were creating a contract. If the party did not know that they were entering into a contract, there is no meeting of the minds, and the contract is void. Fraud in inducement focuses on misrepresentation attempting to get the party to enter into the contract. Misrepresentation of a material fact (if the party knew the truth, that party would not have entered into the contract) makes a contract voidable.
    According to Gordon v Selico [1986] it is possible to misrepresent either by words or conduct. Generally, statements of opinion or intention are not statements of fact in the context of misrepresentation.[68] If one party claims specialist knowledge on the topic discussed, then it is more likely for the courts to hold a statement of opinion by that party as a statement of fact.[69]

  2. This article leaves out the “acceleration of the loan” that advances the maturity date as stated in almost ALL of the Notes and Mortgage. A 2015 case in N.Y. goes into the “acceleration and de-acceleration of the Note.”

  3. lETS HOPE THAT THE “ROBO-JUDGES” AT FLA’S 3RD DCA READ THIS OPINION. I HOPE AND PRAY THAT THE FLORIDA SUPREME COURT WILL DO THE RIGHT THING AND UPHOLD FLORIDA’S 5 YR. STATUTE OF LIMITATIONS. ENOUGH OF JUDGES LEGISLATING FROM THE BENCH. THEY ARE THERE TO UPHOLD THE LAW. THESE 3RD DCA JUDGES SHOULD BE RECUSED FROM EVERY SINGLE FORECLOSURE CASE. THEY ARE THE LAUGHING STOCK IN THE COUNTRY. THEY ARE SO PRO BANKSTERS IT IS RIDICULOUS. “HOMEOWNERS” LIFES MATTER”

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