I live in Georgia and recently, my lender filed a Complaint asking the court to allow them to correct a "scrivener's error." Apparently, they failed to attach the legal description with the Security Deed when it was filed back 2003. Now, they want to correct that problem. I am in the middle of trying to get a loan modification from them as I am delinquent,and I think that they are doing this so that they won't have problems later if they want to foreclose. My questions are: Do they have a legal right to go back now and correct this error?
Can I object and if so, on what basis?
Is there some kinda of statute of limitations here in Georgia that would preclude them from doing this?
I appreciate all the help you can give me.
Thanks!
Yes, I would say that is precisely what is afoot. Meaning the error was discovered during the lender’s preparation to foreclose.
As far as there being a specific SOL statute in George that applies to an action for reformation I can’t say. There likely is, however I’m not about to waste any more time trying to track it down through the state’s cumbersome, user-unfriendly, official stupid web site.
Besides, in my opinion the SOL question is a non-issue and it would be a waste of your time and money were you to attempt to prevent the Georgia court from decreeing reformation of the subject loan documents.
Rather than from thin air, I base my opinion on a well-reasoned decision from the Maryland Court of Special Appeals - titled
LaSalle Bank, N. A vs. Elizabeth A. Reeves, Case No. 0268 (2005) involving factual background virtually parallel to your situation.
The Maryland case grew out of a refinance of a 3-acre tract. However, unbeknownst at the time, the lender’s new deed of trust omitted almost 2 of the original 3 acres.
The lender eventually discovered the omission, filed an action for declaratory relief asking that the deed to trust be reformed as originally intended. The defendant raised the running of Maryland’s 3-year SOL. The trial court agreed and granted defendant’s Motion for Summary Judgment.
The appellate court disagreed, reversed the trial court and directed reformation of the deed of trust to conform to the parties original intention.
The basis for that appellate court holding is a bit complicated. But then so is often the theme of this web site.
What the appellate court did was to treat the bank’s suit for reformation as seeking an equitable and not a legal remedy. And it thus disregarded the Maryland SOL and in lieu of applied the ancient equitable principle of laches.
Meaning that the question of the timeliness of the banks lawsuit would be governed not by statutory law (SOLs), which was the defense raised by the defendants and embraced by the trial court ….
But that the question of whether the bank’s suit for reformation was outlawed would rest on equitable principles whereby the passage of time is often less significant than the matter of prejudice and disadvantage to the opponent.
And finding that the delay caused no harm to the defendants and that the lender was only seeking to place the parties in the position as originally agreed and intended, the court granted reformation.
