Civil Practice – Statute of Limitations – Real Property — Mortgages – Foreclosure – Deficiency Judgment – Consent to Jurisdiction

RBC Bank (USA) v. Chowdhury (Lawyers Weekly No. 12-04-0462, 10 pp.) (Martin Reidinger, J.) 2:11-cv-00016; W.D.N.C.

Holding: Even though defendant agreed not to contest jurisdiction in this action, the statute of limitations is not a jurisdictional issue. Where plaintiff waited more than one year to file this deficiency action, it is time-barred.

Defendant borrowed $180,000 from the plaintiff-bank and executed a promissory note and mortgage in return. Defendant defaulted, and the bank foreclosed on the mortgaged property. Sale proceeds of $61,077.66 left a deficiency of $128,146. A trustee’s deed conveying the property to the bank was recorded in Macon County on Jan. 13, 2010.

The bank filed a deficiency action in Canada. Defendant contended that North Carolina was the proper forum.

The parties negotiated, and a Jan. 10, 2011 email recites their agreement to a stay of the Canadian action on two conditions: (1) that defendant would not contest jurisdiction in North Carolina and (2) that, if and when judgment was obtained in North Carolina, defendant would not attempt to re-litigate in Canada.

The one-year statute of limitations for a deficiency action runs from the date of delivery of the trustee’s deed. The bank did not file this action until Feb. 7, 2011. As such, this action was not timely filed.

The bank cites no authority in support of its argument that the timely filing of the Canadian action renders the N.C. action timely as well.

Defendant agreed not to contest any issues of jurisdiction in the N.C. action. Since the applicability of a statute of limitations is not a jurisdictional issue, the court finds nothing inherently inequitable in defendant’s assertion of the statute of limitations defense.

Furthermore, the parties reached their agreement before the limitations period had expired. The bank’s failure to timely file this action cannot be fairly attributed to defendant.

Motion granted.