Complex securities fraud case from Red Willow County goes back to trial court on failure to disclose grounds, though Neb. App. Agrees securities law violations lapsed by operation of 1 year statute of limitations and 3 year statute of repose. . Appeals court finds that issues of fact existed whether defendants who took assignments from defrauded investors seeking to recover investments in defaulted notes had a duty to affirmatively disclose their possible complicity in fraud and other wrongdoing. Appeals court affirms SJ for defendants statute of limitations defenses because action for selling unregistered securities were not equitably tolled. that some federal securities fraud claims; trial court properly allowed defendants to assert statute of limitations defense even though case had been pending a couple years Ord v. AmFirst Invest. Servs., 14 Neb. App. 97 October 11, 2005. Nos. A-04-153, A-04-437. The plaintiffs appeal from orders of the district court for Red Willow County dismissing certain of the plaintiffs' claims against AmFirst Bank; AmFirst Investment Services; individual defendants, Aragon Financial Services, Inc. DynaCorp Financial Strategies, et al. The plaintiffs purchased promissory notes issued by DFS trusts through Carter, a registered representative of Aragon, from June 11, 1997, through January 25, 2000, and DFS' subsequent default on these obligations. For the reasons set forth below, we (agree that SJ was proper on the federal securities registration violations, but SJ was not proper on Plaintiffs' failure to disclose fraud claims. Further the Court properly allowed defendants to amend to insert a statute of limitations defense. To prove fraudulent concealment, a plaintiff must show that (1) the defendant had a duty to disclose a material fact; (2) the defendant, with knowledge of the material fact, concealed the fact; (3) the material fact was not within the plaintiff's reasonably diligent attention, observation, and judgment; (4) the defendant concealed the fact with the intention that the plaintiff act in response to the concealment or suppression; (5) the plaintiff, reasonably relying on the fact or facts as the plaintiff believed them to be as the result of the concealment, acted or withheld action; and (6) the plaintiff was damaged by the plaintiff's action or inaction in response to the concealment. Streeks v. Diamond Hill Farms, 258 Neb. 581, 605 N.W.2d 110 (2000). Clearly, the record before us shows that genuine issues of material fact exist whether Aragon and Carter concealed material facts with the intent that the plaintiffs acted in response to this concealment; whether the plaintiffs relied on the facts as the plaintiffs believed the facts to be as the result of the concealment; and whether the plaintiffs were damaged as the result of their reliance. Under the circumstances of the instant case, we cannot adopt AmFirst Bank's conclusion that Aragon and Carter had no duty to disclose material facts to the plaintiffs. Clearly, even though the sale of the notes was complete, Aragon and Carter had an ongoing duty to the plaintiffs, given that Aragon and Carter promised to undertake the responsibility of assisting the plaintiffs with recovering their money and impressed upon the plaintiffs that their signing of the release and the hold harmless agreement was imperative to the success of such recovery. In regard to the relevant statute of limitations, the trial court found that the plaintiffs' federal claims under the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Adviser's Act of 1940 were all filed after the 1-year statute of limitations and the 3-year statute of repose. The record shows that the plaintiffs' 10th claim for relief, under the Securities Exchange Act of 1934, alleges a violation of 15 U.S.C. § 78o; that the plaintiffs' 11th claim for relief alleges violations of 15 U.S.C § 80b-3; and that the plaintiffs' 12th claim for relief, under the Securities Act of 1933, alleges a violation of 15 U.S.C. § 77e. The defendants argued, and the court found, that § 13 of the Securities Act, 15 U.S.C. § 77m, applies to all three of the above claimsThe 1-year statute of limitations in 15 U.S.C. § 77mruns from the date each "violation" occurred. See Caviness v. Derand Resources Corp., 983 F.2d 1295 (4th Cir. 1993). A violation of 15 U.S.C. § 77eoccurs when a person sells an unregistered, nonexempt security. See 15 U.S.C § 77l(a)(1). A violation of § 15 U.S.C. § 78o occurs when an unregistered broker sells a security. A violation of § 80b-3 occurs when an unregistered investment adviser first enters into an agreement to provide investment adviser services. See Kahn v. Kohlberg, Kravis, Roberts & Co., 970 F.2d 1030 (2d Cir. 1992). The record shows that Carter sold DFS notes to the plaintiffs more than 1 year prior to the filing of the plaintiffs' complaints. The plaintiffs contend that the district court should have tolled the statute of limitations to take into consideration that the plaintiffs did not learn of Carter's alleged misconduct and DFS' default until on or about June 15, 2000. Under 15 U.S.C. § 77m, there is no equitable tolling for failure to register claims, given that registration is a matter of public record and therefore claims alleging the sale of unregistered securities cannot be concealed. See Perry H. Bacon Trust v. Transition Partners, Ltd., 298 F. Supp. 2d 1182 (D. Kan. 2004). The trial court found that the statute of repose could not be tolled under federal law, except for Liebig's January 25, 2000, purchase, which was the only purchase by Ord or Liebig occurring within 3 years of the filing of the plaintiffs' petition on June 8, 2001. On this record, we cannot find that the trial court erred in its determination. Proper to allow amendment of Defendants' answer to assert statute of limitations defensesthe plaintiffs contend that AmFirst Bank's amendment of its answer occurred many years after the original answer was filed, years after the last discovery was taken on the issue, well after the pleadings had been ordered closed, and without good cause shown. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made. Genthon v. Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005); New Light Co. v. Wells Fargo Alarm Servs., 252 Neb. 958, 567 N.W.2d 777 (1997). See, also, Neb. Rev. Stat. § 25-852 (Reissue 1995) (statute applicable to this action because action was filed prior to statute's repeal by 2002 Neb. Laws, L.B. 876, operative January 1, 2003; amended pleadings are now governed by Neb. Ct. R. of Pldg. in Civ. Actions 15 (rev. 2003)). Although the decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made, the statute is to be liberally construed and amendments are permitted where they are proposed at an opportune time and will be in the furtherance of justice. Genthon, supra; New Light Co., supra. AmFirst Bank contends that their amendment comported with Nebraska law, given that they proposed their amended answer nearly 3 months before the trial was originally scheduled to take place and nearly 6 months before the summary judgment hearing actually occurred. The trial court agreed with AmFirst Bank, stating that AmFirst Bank's amendment of its answer was in furtherance of justice and did not prejudice the plaintiffs, given that there were more than 90 days before the commencement of trial. On this record, we cannot say that the trial court abused its discretion