From Casetext: Smarter Legal Research

In re Harvey

United States Bankruptcy Court, E.D. Pennsylvania
Jun 9, 2003
Bankruptcy No. 02-32412DWS, Adversary No. 02-1386 (Bankr. E.D. Pa. Jun. 9, 2003)

Summary

providing that "[t]he Complaint pleads no facts that would implicate the discovery rule or equitable tolling" but allowing plaintiff to amend in order to plead facts in support thereof

Summary of this case from Cehula v. Janus Distributors, LLC

Opinion

Bankruptcy No. 02-32412DWS, Adversary No. 02-1386

June 9, 2003


ORDER


AND NOW, this 9th day of June 2003, upon consideration of the Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by (1) defendant EMC Mortgage Corporation ("EMC") seeking dismissal of Counts I, II and III of the above-captioned adversary proceeding and (2) LaSalle Bank, N.A ("LaSalle") seeking dismissal of Counts II and III, and after notice and hearing and for the reasons stated in the foregoing Memorandum Opinion;

It is hereby ORDERED that:

1. The Complaint is DISMISSED as to EMC only upon its filing an amended proof of claim stating, consistent with its admissions in this contested matter, that its is the servicer of the Loan owned by LaSalle and filing the claim in that capacity;

2. Count III of the Complaint is DISMISSED with leave for Plaintiff to amend to state, if it can, a claim that is not barred by the statute of limitations. The Plaintiff shall file such amendment on or before June 24, 2003.

3. Within fifteen (15) days of the earlier of (a) service of the amended complaint or (b) June 24, 2003, LaSalle, and EMC if it fails to fulfill the condition of paragraph 1 herein, shall file an answer to the Complaint.


Summaries of

In re Harvey

United States Bankruptcy Court, E.D. Pennsylvania
Jun 9, 2003
Bankruptcy No. 02-32412DWS, Adversary No. 02-1386 (Bankr. E.D. Pa. Jun. 9, 2003)

providing that "[t]he Complaint pleads no facts that would implicate the discovery rule or equitable tolling" but allowing plaintiff to amend in order to plead facts in support thereof

Summary of this case from Cehula v. Janus Distributors, LLC

allowing otherwise time-barred RESPA claims in recoupment

Summary of this case from In re Wentz
Case details for

In re Harvey

Case Details

Full title:In re GERTUDE HARVEY, Chapter 13, Debtor. GERTUDE HARVEY, Plaintiff, v…

Court:United States Bankruptcy Court, E.D. Pennsylvania

Date published: Jun 9, 2003

Citations

Bankruptcy No. 02-32412DWS, Adversary No. 02-1386 (Bankr. E.D. Pa. Jun. 9, 2003)

Citing Cases

In re Wentz

"[A]ctions by way of recoupment have been recognized by court decision in a broad variety of federal…

In re Thompson

Even though RESPA does not explicitly authorize actions by way of recoupment, the Debtors are not foreclosed…