Summary
In Byers, the subject mortgage was accelerated and the statute of limitations began to run in 2011 when the first action was commenced (see id.).
Summary of this case from Bank of N.Y. Mellon Tr. Co. v. HuertaOpinion
2022-00359, 2022-00360 Index No. 619071/17
10-04-2023
CIT BANK, N.A., respondent, v. Andrew BYERS, etc., et al., appellants, et al., defendants.
Kenneth C. Henry, Jr., Westbury, NY, for appellants. Schwartz Sladkus Reich Greenberg Atlas, LLP, New York, NY (Ethan A. Kobre and Bradley Arant Boult Cummings, LLP [R. Aaron Chastain ], of counsel), for respondent.
Kenneth C. Henry, Jr., Westbury, NY, for appellants.
Schwartz Sladkus Reich Greenberg Atlas, LLP, New York, NY (Ethan A. Kobre and Bradley Arant Boult Cummings, LLP [R. Aaron Chastain ], of counsel), for respondent.
BETSY BARROS, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendants Andrew Byers and Tarzan Grant Irby appeal from two orders of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), both dated December 10, 2021. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against those defendants, to strike their answer, and for an order of reference. The second order, insofar as appealed from, granted the same relief, struck the answer of those defendants, and appointed a referee to ascertain and compute the amount due to the plaintiff.
ORDERED that the orders are reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Andrew Byers and Tarzan Grant Irby, to strike their answer, and for an order of reference are denied. In June 2008, the defendants Andrew Byers and Tarzan Grant Irby (hereinafter together the defendants) borrowed $310,133 from IndyMac Bank, F.S.B. (hereinafter IndyMac). The loan was memorialized by a note and secured by a mortgage on property located in Amityville. In July 2011, OneWest Bank, FSB (hereinafter OneWest), as assignee of the loan, commenced an action to foreclose the mortgage (hereinafter the 2011 action). In September 2015, the Supreme Court granted OneWest's motion for a default judgment. The defendants appealed, but ultimately withdrew the appeal after the plaintiff, CIT Bank, N.A., as successor in interest by merger to OneWest, moved to voluntarily discontinue the 2011 action. The court issued an order of discontinuance dated June 23, 2017.
On October 3, 2017, the plaintiff commenced the instant action against the defendants, among others. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The defendants opposed the motion, arguing, among other things, that the action was barred by the statute of limitations. The Supreme Court granted the plaintiff's motion, and the defendants appeal.
An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ; Lubonty v. U.S. Bank N.A., 34 N.Y.3d 250, 261, 116 N.Y.S.3d 642, 139 N.E.3d 1222 ). Where the mortgage debt is accelerated, the entire balance of the debt accrues and the statute of limitations begins to run on the full amount due (see Lubonty v. U.S. Bank N.A., 34 N.Y.3d at 261, 116 N.Y.S.3d 642, 139 N.E.3d 1222 ; U.S. Bank N.A. v. Dallas, 212 A.D.3d 680, 682, 182 N.Y.S.3d 707 ). Under RPAPL 1501(4), "a person with an estate or interest in real property subject to an encumbrance may maintain an action to secure the cancellation and discharge of the encumbrance, and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired" ( Milone v. U.S. Bank N.A., 164 A.D.3d 145, 151, 83 N.Y.S.3d 524 ; see RPAPL 1501[4] ).
Here, the six-year statute of limitations began to run on the entire debt in July 2011, when the plaintiff's predecessor in interest commenced the 2011 action and elected to call due the entire amount secured by the mortgage (see U.S. Bank N.A. v. Doura, 204 A.D.3d 721, 723, 166 N.Y.S.3d 51 ; Wilmington Sav. Fund Socy., FSB v. Iqbal, 195 A.D.3d 772, 773, 145 N.Y.S.3d 372 ). The instant action was commenced in October 2017, more than six years later (see CPLR 213[4] ; U.S. Bank N.A. v. Doura, 204 A.D.3d at 723, 166 N.Y.S.3d 51 ). Under the recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821, § 8 [eff Dec. 30, 2022]), the voluntary discontinuance of the 2011 action did not "in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute" ( CPLR 3217[e] ; see CPLR 203[h] ; GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d 915, 917, 184 N.Y.S.3d 805 ). Under these new legal principles, the plaintiff cannot rely upon the voluntary discontinuance of the 2011 action to establish entitlement to judgment as a matter of law on the issue of whether enforcement of the mortgage loan is barred by the statute of limitations.
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference.
In view of the foregoing, we need not reach the defendants' remaining contentions regarding the plaintiff's motion. We decline the defendants' request to search the record and award the defendants summary judgment dismissing the complaint.
BARROS, J.P., CHRISTOPHER, WARHIT and TAYLOR, JJ., concur.