S. Ct. Civ. No. 2010-0054

In a foreclosure action by a bank against the purchaser of a condominium destroyed by a hurricane, in which insurance recovery became unavailable, the Superior Court erred in granting the bank's summary judgment motion by failing to view the evidence presented in the light most favorable to the non-movant, in this case the debtor. On the issue whether the debtor was in default under the terms of the note, his answers to interrogatories state that he suspended payments because he believed the debt was already paid in full due to a settlement the bank received from a previous lawsuit involving the insurance underwriter. The answers cannot be read as an admission by the debtor that he actually owed any remaining amount on the debt, and other information submitted showed at least one report to the IRS by the bank indicating that the loan had been repaid in full. Thus the Superior Court engaged in impermissible weighing of contested evidence on the material fact question of whether the debtor was in default under the note, and erred in granting the drastic remedy of summary judgment rather than permitting the case to go to trial on this material issue. However, the debtor's tort and contract counterclaims, filed against the bank 12 years after the alleged misrepresentations or breach of contract occurred, were barred by the statute of limitations, and the “continuing violations” doctrine deferring the running of the statutory period until the date of the last injury or when the wrongful conduct ceased, was correctly rejected by the Superior Court because he failed to set out a course of conduct which would be actionable and did not point to any particular wrongful act that occurred during the statute of limitations as required under the doctrine. The trial court's grant of summary judgment in favor of the bank on all of the counterclaims is affirmed, but its grant of summary judgment on the bank's claim on the note is reversed and the order of foreclosure is vacated.