United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, UNITED STATES DISTRICT COURT JUDGE.
Stewart filed his Complaint  in the Circuit Court of
Lowndes County, Mississippi on June 30, 2017. In his
Complaint, Stewart alleges that Green Tree Servicing, LLC
refused to modify or restructure his home loan, and engaged
in various unfair business practices. Stewart alleges that
Green Tree's unfair and deceptive practices caused him to
fall behind on his payments, deprived him of money and
collateral, and forced him to file for bankruptcy in
September of 2012. After removing the case to this Court,
Green Tree filed a Motion to Dismiss  all of Stewart's
claims. See Notice of Removal . Green Tree argues
that Stewart's Complaint fails to state a claim upon
which relief can be granted, and that his claims were filed
outside the applicable statute of limitations. Stewart filed
a Response , and Green Tree filed a Reply , making
these issues ripe for review.
support of dismissal, Green Tree asserts, and Stewart does
not dispute, that Mississippi's general three-year
statute of limitations applies in this case. The Court
agrees. See Miss. Code. Ann. § 15-1-49;
Rawls v. Friedman's Inc., No. 4:02-CV-510, 2003
WL 21728838, at *2 n.3 (S.D.Miss. June 27, 2003); see
also CitiFinancial Mortg. Co. v. Washington, 967 So.2d
16, 19 (Miss. 2007). Stewart acknowledges that nearly five
years passed between the time he filed for bankruptcy and the
filing of this case. Stewart argues however, that the court
should equitably toll the statute of limitations.
asserts that he did not become aware of his claim until an
order was entered against Green Tree in a separate Minnesota
District Court enforcement action brought by the Federal
Trade Commission and Consumer Financial Protection Bureau on
April 23, 2015. Stewart attached this order to his complaint,
which reflects an agreed judgment imposing various monetary
and injunctive conditions against Green Tree. Stewart avers
that when he learned of the order entered in the Minnesota
case, he became aware that Green Tree was involved in a
pattern of deceptive business practices, and presumably, that
he had a claim with a similar basis.
“discovery rule” tolls the statute of limitations
in certain circumstances of “latent injury” until
“the plaintiff has discovered, or by reasonable
diligence should have discovered, the injury.” Miss.
Code. Ann. § 15-1-49 (2). In Stewart's case, it is
clear on the face of his complaint that his injury is falling
behind on payments, losing money and collateral, and filing
does not cite any authority to support his argument that a
statute of limitations is equitably tolled until a plaintiff
learns of a successful prosecution in an unrelated case. Nor
does Stewart point to any facts, or make any alternative
argument, that demonstrate he was not aware of his injuries
when he filed for bankruptcy in 2012.
applying the discovery rule, “[t]he focus is upon the
time that [Stewart] discovers, or should have discovered
by the exercise of reasonable diligence, that [he]
probably has an actionable injury.” First
Tr. Nat. Ass'n v. First Nat. Bank of Commerce, 220
F.3d 331, 336-37 (5th Cir. 2000) (citing Smith v.
Sanders, 485 So.2d 1051, 1052 (Miss. 1986) (emphases
added); see also In re Catfish Antitrust Litig., 826
F.Supp. 1019, 1031 (N.D. Miss. 1993)). “The would-be
plaintiff need not have become absolutely certain that he had
a cause of action; he need merely be on notice - or
should be - that he should carefully investigate the
materials that suggest that a cause probably or potentially
exists. Id.; see also Robinson v. Singing River
Hosp. Sys., 732 So.2d 204, 208 (Miss. 1999); Womble
v. Singing River Hosp., 618 So.2d 1252, 1266 (Miss.
1993); cf. Chamberlin v. City of Hernando, 716 So.2d
596, 601 (Miss. 1998).
precisely the situation presented in the instant case.
Stewart knew that he probably had an actionable
injury years before filing this suit, and he has presented no
argument or evidence to the contrary. In short, Stewart has
not presented any competent evidence or argument that
supports tolling of the statute of limitations.
Stewart's claims are clearly time-barred on the face of
his complaint, Green Tree's Motion to Dismiss  is
GRANTED, and all of Stewart's claims are DISMISSED with
CASE is CLOSED.