Wong v. Mortgage
918 F. Supp. 2d 941
W.D. Mo.2013Background
- Plaintiffs allege MSMLA violations by Bann-Cor Mortgage and downstream assignees for charging prohibited fees and improper interest.
- Lawsuit has undergone multiple amendments and removals; class actions and various defendants added/removed over time.
- Court previously held statute of limitations issues and continued to refine accrual and class definitions.
- Rashaw v. United Consumers Credit Union (8th Cir. 2012) governs Missouri limitation periods, shifting to a 3-year limit under §516.130(2).
- Court concluded misnomer confusion allowed interlineation to identify The Bank of New York Mellon properly; other strike motions denied or rendered moot.
- Under Rashaw, claims arising before the relevant period are time-barred; several defendants’ claims were dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rashaw apply to MSMLA claims in this case? | Rashaw is the best Missouri-law guidance and three-year limit should apply. | Rashaw should control; §516.130(2) applies, not §516.420. | Three-year limitations period applies. |
| Should the class be modified or decertified for numerosity? | Class should be updated to include post-1997 loans with Bann-Cor originations. | Decertification may be warranted due to numerosity concerns; better briefing needed. | Class should be modified to include loans on/after Oct 31, 1997; decertification to be considered after further briefing. |
| Which defendants’ claims are time-barred and should be dismissed? | Some claims remain timely under a redefined accrual; others still viable. | Many defendants’ claims are outside the 3-year window and must be dismissed. | PSB, PSB 1997-3 Trust, and Real Time claims dismissed with prejudice; Bank One claims potentially salvaged for certain post-1997 loans with leave to amend. |
| Is the misnomer of The Bank of New York Mellon fatal or curable? | Defendant’s name confusion is excusable given prior filings and discovery responses. | Exact party identification is essential; misnomer undermines viability. | Seventh Amended Complaint amended by interlineation to correctly identify The Bank of New York Mellon. |
| Should a sua sponte dismissal of certain named plaintiffs be affirmed? | Some plaintiffs’ loans fall within the limitations window and may proceed. | Loans closed before 1997-10-31 are time-barred and should be dismissed. | Wong, Jensen, Brooks, Celia, Musgrave, Plocek, and Franklin/BNY claims dismissed with prejudice; others reassessed. |
Key Cases Cited
- Rashaw v. United Consumers Credit Union, 685 F.3d 739 (8th Cir.2012) (six-year §516.420 does not apply to penalties/forfeitures; three-year §516.130(2) applies)
- Schwartz v. Bann-Cor Mortgage, 197 S.W.3d 168 (Mo.Ct.App.2006) (Missouri accrual principles; continuing violation analysis under MSMLA)
- Davis v. Laclede Gas Co., 603 S.W.2d 554 (Mo.1980) (accrual when damage becomes capable of ascertainment; continuing vs. single-action damages)
- Mitchell v. Residential Funding Corp., 334 S.W.3d 477 (Mo.App. W.D.2010) (MSMLA accrual and damages considerations under Missouri decisions)