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Home / Courts / N.C. Court of Appeals / Tort/Negligence – Fraud – Statute of Limitations – Discovery Rule – Banks & Banking – Real Property – HAMP Denials

Tort/Negligence – Fraud – Statute of Limitations – Discovery Rule – Banks & Banking – Real Property – HAMP Denials

Plaintiffs allege that the defendant-bank fraudulently denied them mortgage modifications under the Home Affordable Modification Program and that their homes were foreclosed upon. There are sufficient facts alleged to suggest plaintiffs remained unaware of defendant’s alleged fraudulent scheme for many years and that they each suffered a resulting harm. Further, the determination of when plaintiffs became aware of the fraud will be dispositive of whether the applicable statute of limitations had expired prior to plaintiffs bringing their claims. For that reason, we hold that plaintiffs’ complaint sufficiently alleged enough information to withstand a motion to dismiss for failure to state a claim.

We reverse the trial court’s grant of defendant’s motion to dismiss.

The determination of when plaintiffs became aware of the alleged fraud may also be appropriate to consider at a later procedural stage—but has no bearing at this juncture—as plaintiffs have sufficiently pleaded a cause of action, treating all pled allegations as true, to survive dismissal pursuant to N.C. R. Civ. P. 12(b)(6).

Dissent

(Dillon, J.) The statute of limitations ceased to be tolled, if at all, by the time each plaintiff became aware of his/her injury, that is, when his/her home was foreclosed upon. And since the complaint alleges when the foreclosures took place and that they took place more than three years before the complaint was filed, dismissal pursuant to Rule 12(b)(6) was appropriate.

Taylor v. Bank of America, N.A. (Lawyers Weekly No. 011-252-22, 7 pp.) (Jeffery Carpenter, J.) (Chris Dillon, J., dissenting) On remand from the N.C. Supreme Court. Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) William Robinson, Dorothy Gooding, Robert Orr, Samantha Katen, Justin Witkin, Chelsie Warner, Caitlyn Miller and Daniel Thornburgh for plaintiffs; Bradley Kutrow, Keith Levenberg and James McGarry for defendant. 2022-NCCOA-912


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