MARBLE v. JIM WALTER HOMES, INC., (N.D.Miss. 2001)

DAVIS, Judge

Defendant has moved for dismissal or judgment on the pleadings in this case which alleges violation of the Truth in Lending laws.

On November 11, 1994, plaintiffs Anna and J. T. Marble, contracted with Defendant for the purchase of a home. They allege they agreed that the purchase price would be $27,000, with a down payment of $500, and a pay off in 15 years. On October 11, 2000, the plaintiffs filed this lawsuit, exhibiting a deed and sale papers which show a principal amount of $34,880, $0 down payment and a 25-year pay off. They contend that defendant's agent fraudulently concealed the increased amount of the house and the longer pay off by forging their signatures on the sales documents.

Defendant argues four grounds for dismissal. One, that the complaint fails to state a claim for which relief can be granted; two, that if a claim has been sufficiently pled, such claim is barred by the one year Truth in Lending Act Statute of limitations,15 U.S.C. . § 1640(e); three, that plaintiffs have failed to plead with sufficient particularity a cause of action for fraud; and four, any properly pled action for fraud is barred by Mississippi's three year statute of limitations, MCA § 15-1-49. All grounds are valid.

Assuming a proper pleading of the issue, according to established Mississippi law, there can be no fraudulent concealment of a document of public record. McMahon v. McMahon, 157 So.2d 494 (Miss. 1963). The defendant has produced the deed of trust which states the total amount of the debt and the 25-year pay off. The document was recorded in Lee County on November 11, 1994. The complaint, therefore, is barred by the statute of limitations, both federal and state. The motion to dismiss is granted. A final judgment in accordance with this opinion will be separately entered.