Wong, et al v. Wells Fargo Bank N.A. et al

Filing 493

ORDER denying 467 plaintiffs' MOTION for Leave to File an Eighth Amended Complaint. All claims against JPM-Bank One are DISMISSED WITH PREJUDICE. Signed on 3/25/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JAMES G. WONG, et al.,
individually and on behalf of all those
similarly situated,
Plaintiffs,
v.
BANN-COR MORTGAGE, et al.,
Defendants.

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) No. 10-1038-CV-W-FJG
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ORDER

Pending before the Court is Plaintiffs’ Motion for Leave to File Eighth Amended
Complaint (Doc. No. 467), filed pursuant to the Court’s Order (Doc. No. 462), which
gave plaintiffs an opportunity to attempt to plead facts stating a claim against JP Morgan
Chase Bank, N.A., as successor to Bank One, N.A. (“JPM-Bank One”) within the statute
of limitations as to additional members of the second mortgage class. See Doc. No.
462, p. 12-13.
Plaintiffs assert that if granted leave, they would file an Eighth Amended
Complaint asserting that (1) Bann-Cor loaned Jerri Gaither money on August 11, 1999,
and Gaither continued to make payments on that loan to JPM-Bank One and others
until December 2002; (2) Bann-Cor loaned G. Raymond Hefner and Leann M. Hefner
money on January 19, 2000, and the Hefners continued to make payments on that loan
to JPM-Bank One and others until November 2003; (3) Bann-Cor loaned Casey J.
Hoffman money on January 22, 2000, and Hoffman continued to make payments on
that loan to JPM-Bank One and others until some unnamed date; and (4) Bann-Cor
loaned Armond I Kocsis and Peggy A Kocsis money on June 19, 1999, and the
Kocsises continued to make payments on the loan until August 2004.

Plaintiffs

acknowledge that, given the Court’s prior rulings and the facts set forth above, plaintiffs
expect that leave to file the proposed amendments will be denied as futile. Plaintiffs
acknowledge that the public record indicates that payments on each of the above four
loans would have ceased before April 2006, the date on which Plaintiffs Patrick and
Natalie Nasi repaid their Bann-Cor loan, and the date on which the Court has already
found “there is no theory under which the Court can find that the Nasis ‘discovered’ the
problems with the loan over five years1 after they stopped making payments on the
loan, just so as to reignite the statute of limitations.” See Doc. No. 462, p. 12.
In response, defendant JPM-Bank One asserts that the claims of all four of the
proposed plaintiff loans are barred by the statute of limitations, as (1) the plaintiffs sued
JPM-Bank One more than three years after their loans closed, given that defendant
JPM-Bank One was not named as a defendant until 2011; (2) even under plaintiffs’
continuing violation theory, which the Court has rejected, payments were complete on
all four of the proposed plaintiff loans more than three years prior to the naming of
JPM-Bank One as a defendant in this lawsuit2; (3) even under more extreme theories,

1

The Court said five years in its previous order because plaintiffs did not name
JPM-Bank One as a defendant until the filing of their Seventh Amended Complaint in
October 2011. Plaintiffs argue that Bank One was joined as a defendant in September
2010 (see Doc. No. 467, p. 10). However, the defendant that was joined in 2010 in the
Sixth Amended Complaint was “Banc One, N.A.,” not “JPM-Bank One.” Regardless,
even if the Court considered the applicable date to be September 2010, that cannot
save plaintiffs’ claims when a three-year statute of limitations applies.
2

Notably, although plaintiffs do not assign an end date to the Hoffman loan within their
proposed Eighth Amended Complaint, defendant attaches to its opposition a publicly
recorded assignment indicating that JPM-Bank One sold and assigned the Hoffman
deed of trust, promissory note, and the money due on it to a third party on August 13,
2004. Doc. No. 476, Ex. A.
2

such as using a six-year statute of limitations, finding that the cause of action did not
accrue until the plaintiffs ceased paying on the loans, and treating the September 22,
2010 petition as naming JPM-Bank One, defendant JPM-Bank One was still not timely
named as defendant as to any of the four proposed plaintiff loans. Plaintiffs have filed
reply suggestions focusing entirely on the propriety of the Court’s previous ruling that a
three-year statute of limitations applies; plaintiffs do not address defendant’s arguments
that, even if the Court found a six-year statute of limitations and continuing violation
theory to be applicable, there is still absolutely no theory under which plaintiffs could be
found to have timely named defendant JPM-Bank One in this matter.
Therefore, for the reasons stated by defendant JPM-Bank One, plaintiffs’ motion
for leave to file an Eighth Amended Complaint (Doc. No. 467) will be DENIED. All
claims against JPM-Bank One are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

Dated: March 25, 2013
Kansas City, Missouri

/s/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

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