Pub. 3 2012 Issue 3

fall 2012 17 argument, the statute of limitations could run for decades after the loan is paid in full or accelerated. The Fourth Circuit properly found that the “last scheduled payment” is not determined by the initial payment schedule of the loan, but by the entirety of the agreement between the lender and the borrower—including the acceleration clause of a deed of trust. The Court affirmed the lower court holding: “Under the language of the party’s agreement, the event of acceleration materially altered the party’s original schedule of payments allowing the lender to demand full payment of the loan upon the borrower’s default.” The Fourth Circuit concluded that the acceleration date was the operative date for the purposes of applying the statute of limitations because no further payments were scheduled after that date. The Delebreau case is important not only because it provides a strong ground for defending a consumer credit lawsuit, but also because the West Virginia Supreme Court of Appeals is considering this same issue in Tribeca Lending Corporation v. McCormick , a case originating in the Kanawha County Cir- cuit Court. Like the Court in Delebreau , the Circuit Court in the Tribeca Lending case correctly determined that the statute of limitations began to run on the date the loan was accelerated. The West Virginia Bankers Association has filed an amicus brief in the case urging the Supreme Court of Appeals to reject plaintiff’s analysis, noting the serious impact the decision will have on lending in the state and the ability to obtain and transfer good and marketable title to real estate particularly to West Virginia consumers who subsequently purchase these homes. In order to avoid these serious consequences, the Court should adopt the reasoning articulated by the Court in the Delebreau case and reject the plaintiff’s claims as time-barred. Q Should you require more information concerning the legal and business aspects of the above, please feel free to contact the author, SandraMur- phy, directly at (304) 347-1131 or via e-mail at smurphy@bowlesrice.com . Ms. Murphy is a partner in Bowles Rice LLP, focusing her practice in banking and commercial law. Bowles Rice LLP is general counsel to the West Virginia Bankers Association. Matt Dugas is BD&E’s Senior VP of Sales and Design and West Virginia Regional Sales Manager. You can reach him at 800-671-7300. BD&E is a leading bank designer and a trusted equipment provider to a wide range of financial institutions located in Virginia, West Virginia, Ohio, Maryland, Delaware, New Jersey, Pennsylvania and the District of Columbia. BD&E is the sole distributor for the All Clear System in West Virginia. Q Fourth Circuit Court — continued from page 12 • Insurance premiums may be increased • There is the very real cost of replacing lost employees who are often key employees • And there are expenses of new, “forced” security upgrade and management costs of dealing with regulatory agencies. When you add up all the management and operational costs relating to a robbery, the security officer can make a con- servative case to the board that each incident can exceed $100,000. Prevention is well worth the pound of cure. Of course, it will be up to the management team and the board to make the final decision, but at least the security officer has laid out the risk/reward argument for the new security paradigm in human and financial terms. Most insti- tutions will opt for the best-practices solution and choose to comply just to avoid the potential liabilities. Q REACHYOURTARGETAUDIENCE AFFORDABLY Find out how targeted advertising can produce real, measurable results for your organization. ADVERTISE AND GET RESULTS Kris Montione, Advertising Sales 727.475.9827 | kris@thenewslinkgroup.com