Summary
calculating the statute of limitations from the date of closing of the loan
Summary of this case from Suggs v. M & T BankOpinion
Civil Action No. 01:11–cv–453.
2011-10-19
Anita G. VERA and Roberto E. Vera, Plaintiffs, v. OLYMPIA WEST MORTGAGE GROUP, LLC, et al., Defendants.
Gregory Nicholas Bryl, Law Office of Gregory Nicholas Bryl, Washington, DC, for Plaintiffs. John C. Lynch, Ethan G. Ostroff, Troutman Sanders LLP, Virginia Beach, VA, Mary Catherine Zinsner, Troutman Sanders LLP, McLean, VA, for Defendants.
Gregory Nicholas Bryl, Law Office of Gregory Nicholas Bryl, Washington, DC, for Plaintiffs. John C. Lynch, Ethan G. Ostroff, Troutman Sanders LLP, Virginia Beach, VA, Mary Catherine Zinsner, Troutman Sanders LLP, McLean, VA, for Defendants.
ORDER
CLAUDE M. HILTON, District Judge.
This matter comes before the Court on Defendant Wells Fargo Bank, N.A.'s (“Wells Fargo”) Motion to Dismiss. The Court grants Wells Fargo's Motion because both the rescission and damage claims Plaintiffs make under the Truth in Lending Act, 15 U.S.C. § 1601et seq. (“TILA”), are time-barred. The three-year time limit on TILA rescission pursuant to 15 U.S.C. § 1635(f) (2010) is absolute, the expiration of which extinguishes the borrower's rescission right regardless of whether any notice of rescission was filed within three years of closing. Because Plaintiffs filed their Complaint in this case on April 26, 2011, nearly four years after closing on May 21, 2007, their rescission claims under TILA are time-barred. Similarly, Plaintiffs' damage claims under TILA are time-barred and must be dismissed under TILA's one-year limitation period for damage actions. 15 U.S.C. § 1640(e) (2010).
With respect to Defendant Olympia West Mortgage Group, LLC (“Olympia West”), it is not clear that service was ever made on Olympia West. Not only has Olympia West never responded to the present action, but Olympia West has no registered agent to receive process, and the Virginia State Corporation Commission, which is the designated mechanism for serving process on entities without registered agents and which Plaintiffs have pursued, has given no indication that Olympia West received process in this case. However, even if Olympia West had been served, Plaintiffs' claims against it for rescission and damages under TILA against it are likewise time-barred under the foregoing analysis. Under the circumstances, it is pointless to continue the allegations against Olympia West and dismissal of Defendant Olympia West is warranted. Accordingly, it is hereby
ORDERED that the claims against Wells Fargo and Olympia West are dismissed, and this case is dismissed.