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05/17/96 TWENTY FIRST CENTURY RECOVERY v. CHARLES

May 17, 1996

TWENTY FIRST CENTURY RECOVERY, LTD., A PARTNERSHIP, AS SUCCESSOR TO CERTIFIED SAVINGS ASSOCIATION, PLAINTIFF-APPELLANT,
v.
CHARLES MASE AND JOAN MASE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 94-L-1270. Honorable A. A. Matoesian, Judge, presiding.

As Corrected June 4, 1996.

The Honorable Justice Goldenhersh delivered the opinion of the court: Hopkins, P.j., and Welch, J., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, Twenty First Century Recovery, Ltd., a partnership, as successor to Certified Savings Association (Certified Savings), appeals from the circuit court of Madison County's grant of the motion of defendants, Charles Mase and Joan Mase, to dismiss plaintiff's complaint seeking recovery of a deficiency balance on a promissory note resulting from a real estate foreclosure.

On appeal, plaintiff presents two issues for our consideration: (1) whether the trial court erred in finding that the Federal six-year statute of limitations provided in the Financial Institutions Reform, Recovery, and Enforcement Act (the Act) (12 U.S.C.A. § 1821(d)(14) (West 1989 & Supp. 1996)) does not extend to assignees of the Resolution Trust Corporation, and (2) whether the trial court erred in finding that the Texas statute of limitations period had run, thereby barring plaintiff's claim for a deficiency judgment on the promissory note. We reverse and remand.

I

On July 19, 1991, Certified Savings, operating in the State of Texas, was taken over and placed in receivership by the Federal Deposit Insurance Corporation (FDIC). The Resolution Trust Corporation (Resolution) was appointed as receiver and conducted an auctionof the nonperforming loans. Plaintiff purchased the promissory note at issue here on June 11, 1992, from Resolution. Resolution, in the loan sale agreement with plaintiff, assigned all its right, title, and interest in the note to plaintiff.

On December 6, 1994, plaintiff filed its complaint seeking to recover a deficiency balance of $34,884.57, plus interest, attorney fees, and court costs due on the promissory note resulting from a real estate foreclosure. Defendants filed a motion to dismiss on January 20, 1995, alleging that the notes were executed in Texas and that the promissory agreement states that the note shall be governed by Federal law and the laws of the State of Texas and that, pursuant to section 16.004(a)(3) of the Texas Civil Practice and Remedies Code (Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (West 1993)), there is a four-year limitation period on attempts to collect debts; that the instant cause of action accrued in Texas in October 1989; and that, in accordance with section 16.004(a)(3), plaintiff's action is time-barred. Plaintiff subsequently filed a motion to amend its complaint on March 14, 1995.

Defendants' motion to dismiss was heard on March 17, 1995, at which time the trial court entered an order conditionally granting defendants' motion to dismiss, granting plaintiff leave to file its amended complaint, and ordering that defendants' motion to dismiss be reconsidered at a later date.

The trial court reconsidered its order dated March 17, 1995, and entered an order dismissing plaintiff's complaint on May 19, 1995. In its May 19, 1995, order, the trial court concluded that because the contract was entered into in Texas and the real property was located there, the case was governed by the laws of the State of Texas, in particular, the statute of limitations on commercial debts, which is four years pursuant to section 16.004 of the Civil Practice and Remedies Code.

On June 12, 1995, plaintiff filed a motion to vacate judgment, alleging that the six-year statute of limitations of the Act (12 U.S.C.A. § 1821(d)(14) (West 1989 & Supp. 1996)) was controlling, that the Texas statute of limitations period was indefinitely tolled because defendants became nonresidents of Texas before the statute ran, and that, therefore, plaintiffs' action was not time-barred. Plaintiff's motion included as exhibits a copy of the demand notice for payment from Certified Savings, dated September 14, 1989, addressed to defendant Charles Mase (to establish the date of defendants' default on the note), copies of United States Postal Service return receipts signed and dated by Charles Mase at a Granite City address, and a letter dated March 8, 1993, from defendants' attorney advising the collectionagency of defendants' Granite City address. On June 15, 1995, the trial court denied plaintiff's motion to vacate judgment. Plaintiff now appeals.

II

Plaintiff contends that the statute of limitations in section 1821(d)(14) of title 12 of the United States Code (12 U.S.C.A. § 1821(d)(14) (West 1989 & Supp. 1996)), which grants a six-year limitations period to Resolution for bringing contract actions, inures to the benefit of Resolution's assignees and, therefore, plaintiff's action against defendants is timely. Furthermore, plaintiff asserts that even if the Federal statute of limitations did not apply, plaintiff's action is nonetheless timely because the Texas statute of limitations provides for the tolling ...


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