Opinion
Index No. 705801/19 Seq. No. 4
10-11-2023
DEUTSCHE BANK NATIONAL TRUST COMPANY, ON BEHALF OF FINANCIAL ASSET SECURITIES CORPORATION, SOUNDVIEW HOME LOAN TRUST 2007-WMC1 ASSET-BACKED CERTIFICATES, SERIES 2007-WMC1, Plaintiff, v. LENNOX WARREN; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR WMC MORTGAGE CORP.; COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK SOCIAL SERVICES DISTRICT; ANSON STREET, LLC A/A/O WMC MORTGAGE; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; AKEEM VINCENT; BERNADETTE JONES; HUDSON VINCENT, Defendants.
Unpublished Opinion
HON. ROBERT I. CALORAS, JUDGE
On April 2, 2019, Plaintiff commenced this action by filing a Summons and Verified Complaint, wherein it alleged that on October 27, 2006 Defendant Lennox Warren (Defendant) executed a Note in the amount of $388,000.00, in favor of non-party WMC Mortgage Corp. This Note was secured by a mortgage on certain real property known as 111-24 197th Street, Saint Albans, New York 11412.
In a memorandum decision dated April 27, 2020 this Court denied Plaintiff's motion for summary judgment, a default judgment against all non-appearing Defendants, an order to strike and dismiss the affirmative defenses and counterclaims in the appearing Defendant's Answer, and to appoint a referee, and granted Defendant's cross motion to dismiss the Complaint as time barred, summary judgment on his RPAPL 1501(4) counterclaim, and for attorney's fees, costs and disbursements pursuant to RPL 282(1). In the April 2020 decision, this Court determined that "[a]fter Plaintiff discontinued the 2008 action, it did not revoke its election to accelerate the loan by an affirmative act of revocation during the six-year statute of limitations period after the initiation of the 2008 action. Consequently, the Plaintiff commenced the instant action after the statute of limitations expired".
In a memorandum decision dated September 20, 2020 this Court granted Plaintiff's motion for leave to renew its prior motion for summary judgment. Upon renewal this Court determined that Plaintiff established its prima facie entitlement to summary judgment through the submission of the Stipulation of Discontinuance it filed on May 14, 2014 discontinuing the 2008 action, and that Defendant failed to raise any triable issues of fact with respect to his claim that the instant action is time barred. Subsequently on November 30, 2020 this Court issued an order of reference.
In the instant motion Plaintiff moves for a Judgment of Foreclosure and Sale (JFS). Defendant also cross moves in essence for leave to renew his opposition to Plaintiff's prior motion for leave to renew based upon a change in the law set forth in the newly enacted provisions of the Foreclosure Abuse Prevention Act (FAPA), and upon renewal moves for the following: summary judgment dismissing the Complaint with prejudice as barred by the statute of limitations; and summary judgment on his counterclaims to quiet title pursuant to RPAPL 1501(4) and for reasonable attorneys' fees pursuant to RPL 282. Plaintiff opposes and argues, among other things, that FAPA cannot be applied retroactively.
Initially the Court will determine Defendant's cross motion. A motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination' (CPLR § 2221[e][2]; 25 Bay Terrace Assoc, L.P. v Public Serv. Mut. Ins. Co., 194 A.D.3d 668 [2d Dept. 2021]). "'While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance'" (id.). "'When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal'" (id.). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (id.).
FAPA amended six laws (CPLR § 203, CPLR § 205, CPLR § 213, CPLR § 3217, RPAPL § 1301 and GOL § 17-105 and added CPLR § 205-a). "The most significant of the forgoing modifications is the newly promulgated CPLR § 205-a, which provides that lenders may only take advantage of the 'saving statute' if the matter was terminated in any manner other than: voluntarily discontinue the action, failure to obtain personal jurisdiction over the defendant, dismissal for any form of neglect including for violation of court rules or individual part rules, failure to comply with scheduling orders, by default due to nonappearance for conference or at calendar call, failure to submit an order or judgment, or upon a final judgment upon the merits (US Bank v Johns, NYLJ August 14, 2023 at p. 17, col. 3 [Sup. Ct. Queens County, Kerrigan, J.])." If a foreclosure action is dismissed for any of the forgoing reasons, CPLR 205-a cannot be used to revive it and extend the limitations period" (id.).
CPLR § 3217(e) provides:
Effect of discontinuance upon certain instruments. In any action on an instrument described under subdivision four of section two hundred thirteen of this chapter, the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall 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. Section 10 of FAPA provides:
This act shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced.
The issue regarding whether §10 should be applied retroactively has not yet been heard by the Court of Appeals or any of the Appellate Divisions. However, several Supreme Courts across the State have heard this issue and determined the answer to be no (US Bank v Johns, supra; U.S. Bank Trust, N.A., as Trustee For LB-Cabana Series IV Trust v Leonardo, ___ Misc.3d ___, ___ N.Y.S.3d ___, 2023 WL 3987683 (Sup. Ct. Nassau Co. June 12, 2023) (Sullivan, J.), Newrez LLC v Kalina, 78 Misc.3d 1217[A] [Sup. Ct. Albany Co. 2023) [citing Justice Cardozo in Jacobus v Colgate, 217 NY 235 [1916]) (Lynch, J.); MTGLQ Investors, L.P. v Gross, 79 Misc.3d 353 [Sup. Ct. Westchester Co. 2023[ [Greenwald, J.]; Wells Fargo Bank, N.A. v Orozco, ___ Misc.3d ___, 2023 NY Slip Op. 32396[U] [Sup. Ct. Queens Co. 2023] [Weiss, J.]). This Court agrees and finds that permitting retroactive application of FAPA would destroy rights already accrued by the Plaintiff (US Bank v Johns, supra; see HSBC Bank United State NA, 2023 NYLJ LEXIS 1254). "Thus, while clarification of an existing law or promulgation of a new law may, at times, warrant renewal, it does not here" (US Bank v Johns, supra). "Retroactive application in this instance would deprive the mortgagee of their right to enforce their claim against the mortgagor in violation of its federal and state constitutional rights to due process of law" (id.). Since this Court has determined that the amendment of CPLR § 3217 (e) is not entitled to retroactive application to the facts herein, it is unnecessary to address the remaining constitutional challenges raised by the Defendant. Accordingly, the cross motion filed by Defendant is denied and Plaintiff's motion is granted.
Submit order.