The Continuing Violations Doctrine and Mortgage Payments under the FHA
Kirk D. Jensen
February 1, 2011
In the wake of the turmoil in the housing market, some homeowners have sought to stave off foreclosure by alleging that the lender that originated the mortgage loan violated various provisions of federal and state law. Unfortunately for these homeowners, their claims are often brought after the applicable limitations period has lapsed. To avoid this result, homeowners and their attorneys have tried to apply various doctrines in an attempt to enlarge the applicable limitations period. One such doctrine is the “continuing violations doctrine,” under which a limitations period may be extended if one or more “continuing violations” occur within the limitations period.
Courts have recently struggled with the application of the continuing violations doctrine to claims brought under the Fair Housing Act (FHA). Under the FHA, private civil plaintiffs have two years after the occurrence or termination of an alleged discriminatory housing practice within which to pursue their claims. In cases with nearly identical facts, courts have reached opposite conclusions regarding whether mortgage payments are themselves continuing violations, and therefore extend the FHA’s limitations period, or whether they are merely the continuing effects of the initial pricing decision that do not enlarge the limitations period.
Published by the American Bar Association, 2011