wilpharm

mike, he passed te[hat point years ago

Snoopy

Read NYS Law . . . OR have one of your smarter friends read it to you! Concentrate (very, very difficult for you) and have a couple of neutrons collide for a decision!

Simple!

Snoopy

Snoopy

Because the judge is BIASED!

Snoopy

Snoopy

How about Ex Post Facto?

Snoopy

Snoopy

Kevin should take note!!!!

Snoopy

America 1 Loc: South Miami

Fraud Claim Dismissed On Statute Of Limitations Grounds Because Plaintiff Could Not Avail Itself Of The Discovery Rule
Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time, the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater.
The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, “even though the injured party may be ignorant of the existence of the wrong or injury.”

While the foregoing statement of the law seems simple enough, its application is more complicated. Determining when accrual occurs is not easy and often contested.

Also, hotly contested is the determination of when the plaintiff discovered or could have discovered the fraud. In New York, “plaintiffs will be held to have discovered the fraud when it is established that they were possessed of knowledge of facts from which it could be reasonably inferred, that is, inferred from facts which indicate the alleged fraud.”4 “[M]ere suspicion will not constitute a sufficient substitute” for knowledge of the fraud.5 “Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed on motion and the question should be left to the trier of the facts.”6

Moreover, where the circumstances suggest to a person of ordinary intelligence the probability that she has been defrauded, a duty of inquiry arises, and if she fails to undertake that inquiry when it would have developed the truth and shuts her eyes to the facts which call for an investigation, knowledge of the fraud will be imputed to her.7 The test as to when fraud should with reasonable diligence have been discovered is an objective one. Thus, while it is true that New York courts will not grant a motion to dismiss a fraud claim where the plaintiff’s knowledge is disputed, courts will dismiss a fraud claim when the alleged facts establish that a duty of inquiry existed and that an inquiry was not pursued.
“The burden of establishing that the fraud could not have been discovered before the two-year period prior to the commencement of the action rests on the plaintiff, who seeks the benefit of the exception.”

In Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2022 N.Y. Slip Op. 00805 (1st Dept. Feb. 8, 2022) (here), the Appellate Division, First Department, dismissed the plaintiff’s fraud claims as time-barred because it was on inquiry notice of said claims.

Ambac was an action that Ambac Assurance Corporation (“Ambac” or “Plaintiff”) commenced in July 2015. It involved five policies issued by Ambac in 2005 to insure residential mortgage-backed securities (“RMBS”) transactions that securitized “pools” of “negative amortization” mortgage loans originated by defendant Countrywide Home Loans, Inc. (“Countrywide” or “Defendant”). Ambac alleged that, as of October 31, 2014, it had paid, accrued, or expected to pay more than $350 million in policy claims resulting from Countrywide’s alleged misrepresentations about the underlying loans in five RMBS transactions (the “Transactions”).

On November 21, 2011, Ambac and Countrywide entered into a tolling agreement, which, as amended, tolled the running of the statute of limitations on unexpired claims related to the Transactions through December 31, 2014. The parties did not dispute that the action was not timely under New York’s six-year limitations period.
Instead, the dispute centered on whether Ambac commenced the action within two years from the time it discovered the alleged fraud, or with reasonable diligence would have discovered it.

The Court held that Countrywide demonstrated “that Ambac was on inquiry notice of its fraud claims before November 21, 2009, i.e., two years before the parties entered the tolling agreement, based on media reports about Countrywide’s fraudulent loan practices, highly publicized litigation between 2006 and early 2009 involving substantially similar claims, and the downgrade of the certificates in the transactions from AAA to junk status by February 2009.”

The Court noted that Ambac was aware of Countrywide’s possible fraud as early as 2008: “Ambac does not deny that before 2009 it was aware of Countrywide’s possible fraud in connection with the transactions, as now alleged in this action.”12 “Indeed,” explained the Court, “Ambac publicly announced in 2008 that it would investigate ‘all areas of fraudulent activity’ and attributed losses on the RMBS in its portfolio to the possibility of ‘poorly underwritten’ and ‘fraudulent loans … bundled in the transactions.’”

The Court found “unavailing” Ambac’s argument “that … a triable issue exist[ed] as to whether it could have sustained a viable fraud action in 2009 when it was not in possession of the relevant loan files and had not yet suffered any losses.” In that regard, the Court explained:

First, Ambac’s claim that it needed loan-level allegations to file a fraud action is undermined by the complaint itself, which makes scant reference to loan-level allegations and focuses primarily on Countrywide’s systemic wrongdoing, as revealed in media reports, litigation, and government investigations prior to 2009. Second, Ambac failed to show that it could not assert a fraud claim without making loan-level allegations or that the belief that loan-level allegations were required motivated its failure to timely bring an action. The record indicates that Ambac did not make any efforts to investigate possible fraud in relation to the transactions, thus casting this argument as nothing more than a post hoc rationalization. Third, there was no requirement that Ambac plead precise damages but only that it alleges sufficient damages “from which damages attributable to the defendant’s breach may be reasonably inferred.”
Takeaway
Ambac highlights the need for litigants to act on facts and circumstances from which it could be reasonably inferred that they were the victims of fraud.

The failure to bring suit when the facts suggest fraud will result in dismissal.

Thus, even though the discovery rule allows the victim of fraud to bring suit when the very nature of the fraud prevents him/her from knowing that he or she was defrauded, the courthouse doors will, nevertheless, close on the litigant who sits on his or her rights when the facts indicate that a wrong has been done.
https://fhnylaw.com/fraud-claim-dismissed-on-statute-of-limitations-grounds-because-plaintiff-could-not-avail-itself-of-the-discovery-rule/

Smedley_buzkill

Another lie from the lie factory. Fraud has a statute of limitations. In New York, five years for felony and 3 for misdemeanor. If you had the intelligence to look things up before you post your usually mistaken opinion you might realize this.

https://www.findlaw.com/criminal/criminal-law-basics/time-limits-for-charges-state-criminal-statutes-of-limitations.html

Proud American Patriot

CPL doesn't apply if it involves Trump.

Proud American Patriot

Can't wait for the Trump revenge tour. Guantanamo for all!

Proud American Patriot

A judge can dismiss a case if the material facts, evidence are not sufficient ro support the charges or statute of limitations expired and the case should not have been brought to begin with. These Judges are biased tools so they obfuscate the law. It is an organized plan so they can stay out of jail themselves. It is also political fodder for the stupid.

Proud American Patriot

Well said. Kevyn is a waste of keyboard strokes. Why entertain his stupidity. He will be the first to run. I am waiting for the go.

Proud American Patriot

Wrong.

Catman Loc: Houghton Lake Michigan

Could not say it any better for when you rattel that cage hard enough your going to have hell to pay for we will not stop till there all gone and we have a better world to live in.
We must save this world for our kids and there's .

billlingle

Do you actually think that this has not been thought of by someone on Fat Donny's "legal" team? I admit that they are close to the bottom of the list of sharp legal minds due to the fact that Fat Donny the Grifter doesn't pay his bills, but, after all, if you ran across this point even they could not have missed it. There is a reason and I bet it relates to the 4 years of turmoil, chaos and getting nothing done that Fat Donny the Incompetent spent infesting the White House.

XXX Loc: Somewhere north of the Mason-Dixon

The reason is the crooked judge who denys NY lawn.