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UNITED STATES v. SANTOS

March 11, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
ALLEN F. SANTOS, et al., Defendants.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

OPINION AND ORDER

 This matter comes before the Court on defendant Allen Santos' motion for summary judgement. The primary issue raised by defendant's motion is whether plaintiff's cause of action is barred by the applicable statute of limitations provisions contained in 28 U.S.C. § 2415. Upon consideration of the briefs and oral arguments of the parties, it is the ruling of this court that defendant's motion shall be GRANTED in part and DENIED in part as outlined below.

 FACTS

 On May 9, 1990 plaintiff filed this action seeking recovery of a defaulted home loan guaranteed by the Department of Veterans Affairs ("VA") pursuant to 38 U.S.C. § 1803. Defendant maintains that he has never acknowledged the debt owed to the VA; nonetheless, he does not dispute that the loan in question has been in default.

 The VA approved the loan in question on January 25, 1980. Defendant's name and signature appear on the loan forms. The parties do not indicate when defendant allegedly defaulted on the loan; however, a foreclosure sale on the subject property was held on August 14, 1984, leaving an outstanding balance of $ 24,289.63, plus interest owing on the property. After the sale, the VA sent three demand letters dated September 9, 1985, June 1, 1990 and July 1, 1990 respectively to defendant seeking payment of the outstanding balance. On March 16, 1990 defendant filed a request for waiver of the obligation. On April 12, 1990 the VA issued its decision denying defendant's request for waiver. While the decision specifically notified defendant of his right to an appeal, defendant chose not to exercise said right.

 DISCUSSION

 A. Statute of Limitations

 Plaintiff's cause of action is subject to the statute of limitations provision contained in 28 U.S.C. § 2415, which provides in pertinent part:

 (a) Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the U.S. or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by the law, whichever is later: Provided, That in the event of later partial payment or written acknowledgement of debt, the right of action shall be deemed to accrue again at the time of each such payment or acknowledgement . . . (emphasis added)

 The parties agree that section 2415(a) applies to plaintiff's action; however, the parties disagree as to the proper application of the section.

 Initially, the parties disagree as to the date plaintiff's cause of action accrued. Defendant argues that plaintiff's cause of action accrued on August 14, 1984, the date of the foreclosure sale. Plaintiff maintains that the cause of action did not accrue until September 9, 1985, the date of the initial demand letter. In support of its contention, plaintiff cites U.S. v. Gottlieb, 948 F.2d 1128 (9th Cir. 1991), which holds that the six-year statute of limitations does not begin to run until the government makes a demand of payment.

 Gottlieb is inapplicable to this matter. The Ninth Circuit's holding in Gottlieb was specifically premised on the fact that the contract in question contained a "demand requirement" which rendered the amounts payable "on demand". Id. at 1129. The contract between the VA and defendant contains no such demand requirement. The Gottlieb court specifically noted that where, as here, there is no demand requirement contained in the contract, the statute of limitations begins to run when the government acquires the right to pursue the claim. Id. at 1130. *fn1" Therefore, as plaintiff does not dispute that the government was on notice of the default at the time of the foreclosure sale, the court finds that the cause of action accrued on August 14, 1984.

 Plaintiff's complaint was filed on May 9, 1991, almost nine months after the six years provided for in the first part of section 2415(a). However, plaintiff offers two additional arguments against the statute of limitations bar. First, plaintiff argues that defendant's request for waiver constituted an acknowledgment of debt which, pursuant to section 2415(a), essentially restarts the six year statute of limitation. Second, plaintiff argues that even if defendant's request for waiver did not constitute an acknowledgment of debt, the ...


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