Opinion
Index No. 712851/2018 Motion Seq. No. 2
09-25-2024
JPMorgan Chase Bank, National Association, Plaintiff(s), v. Sophia Browne; Anthony Cottle a/k/a Anthony T. Cottle; City of New York Environmental Control Board; City of New York Parking Violations Bureau; City of New York Transit Adjudication Bureau Defendants.
Unpublished Opinion
Motion Date 6/22/2023.
DECISION AND ORDER
Hon. Lumarie Maldonado-Cruz, A.J.S.C.
This matter was reassigned to the undersigned on or about January 14, 2024.
The following numbered papers read on this motion by plaintiff for an order confirming the referee's report, granting a judgment of foreclosure and sale, directing the distribution of the sale proceeds, directing the entry of a default judgment and amending the caption; cross-motion by defendant Sophia Browne to renew her cross-motion for summary judgment and opposition to plaintiffs motion for summary judgment.
Papers Numbered
Notice of Motion - Affidavits - Exhibits................................EF 103 - 113
Notice of Cross-Motion - Affidavits - Exhibits......................EF 118 - 127
Answering Affirmations - Exhibits.....................................EF 130 - 139, 141 - 142
Upon the foregoing papers, it is ordered that the motion and cross-motion are determined as follows:
In this mortgage foreclosure action, the court (Evans, J.) granted plaintiffs motion for, among other things, summary judgment and appointment of a referee to compute the amount due in an order entered July 1, 2022. The court, (J. Purificacion), in a memorandum decision entered March 5, 2020, rejected defendant Sophia Browne's argument, that plaintiffs notice of deacceleration was ineffective and the statute of limitations had expired prior to the commencement of the instant action. Browne now moves to renew her cross-motion for summary judgment and opposition to plaintiffs motion for summary judgment, on the ground that a change in law would alter the prior determination. (See CPLR 2221 [e].)
The court will first address Browne's cross-motion. "A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court." (Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 222 A.D.3d 721 [2d Dept 2023], quoting Kugler v Kugler, 174 A.D.3d 876, 877 [2d Dept 2019]; NYCIL 1998-1 Tr. v Rodriguez, 154 A.D.3d 865, 866 [2d Dept 2017].) 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" and "shall contain reasonable justification for the failure to present such facts on the prior motion." (CPLR 2221 [e] [2], see Citimortgage, Inc. v Sparozic, 223 A.D.3d 867 [2d Dept 2024]; Wilmington Sav. Fund Socy. FSB v Khandaker, 217 A.D.3d 729, 730 [2d Dept 2023].)
Browne argues that the Court of Appeals' decision in Freedom Mortgage Corporation v. Engel (37 N.Y.3d 1 [2021]) and the Foreclosure Abuse Prevention Act (L 2022, ch 821) (hereinafter FAPA), would change the outcome of the July 1, 2022 order. Specifically, Browne contends that FAPA's prohibition on unilateral de-acceleration of mortgage loans would render the instant action time-barred. Browne relies on FAPA's amendments to the CPLR, which added subdivision (h) to CPLR 203 and subdivision (e) to CPLR 3217. Both amended statutes refer to CPLR 213 (4), which requires commencement within six years of "an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein."
CPLR 203 (h) provides that "[o]nce an action upon an instrument described in subdivision four of section two hundred thirteen of this article has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute." CPLR 3217 (e) provides that "[i]n 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."
Browne maintains that these amended statutes apply retroactively and encompass the instant action because § 10 of FAPA provides that "[t]his 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." (See HSBC Bank USA, N.A. v Francis, 214 A.D.3d 58, 64 [2d Dept 2023].) Specifically, Browne argues that under CPLR 203 (h) and 3217 (e), plaintiffs prior foreclosure action, commenced on August 30, 2010, was not effectively decelerated by the "deacceleration notice" dated October 20, 2015, and renders plaintiffs instant action, commenced on August 20, 2018, time-barred.
In opposition, plaintiff contends that Browne's renewal based on Freedom Mortgage Corporation v. Engel is untimely and the decision does not support renewal. Plaintiff further argues that FAPA does not apply retroactively and the application of FAPA retroactively would be unconstitutional. Generally, statutory amendments have prospective effect unless its language indicates a contrary interpretation. (See People v Galindo, 38 N.Y.3d 199, 207 [2022]; Matter of Gleason (Michael Vee, Ltd.), 96 N.Y.2d 117, 122 [2001].) Here, § 10 of FAPA further provides that FAPA applies to all mortgage foreclosure actions "in which a final judgment of foreclosure and sale has not been enforced." This language evinced an intent for FAPA to reach all mortgage foreclosure actions in which the judgments had not been enforced irrespective of whether they were commenced before or after the date FAPA was enacted. (See Matter of Regina Metro. Co., LLC v Neve York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 374 [2020].)
Plaintiff contends that FAPA's retroactive application violates the Takings Clause of the Fifth and Fourteenth Amendments, which "prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a 'public use' and upon payment of 'just compensation." (Landgraf v ESI Film Products, 511 U.S. 244, 266 [1994]; see American Economy Ins. Co. v State of N.Y., 30 N.Y.3d 136, 155 [2017]; James Sq. Assoc. LP v Mullen, 21 N.Y.3d 233, 247 [2013].) The threshold inquiry is whether a vested property interest has been identified. (See American Economy Ins. Co., 30 N.Y.3d at 155). Here, plaintiff fails to identify "any vested property interest impaired by the legislative amendment" necessary to sustain a Takings Clause claim. (Id.)
Plaintiff also argues that FAPA's retroactive application violates due process by overriding well-settled expectations with no forewarning. The Legislature's acts possess a strong presumption of constitutionality. (See White v Cuomo, 38 N.Y.3d 209, 216 [2022]; American Economy Ins. Co., 30 N.Y.3d at 149; Matter of County of Chemung v Shah, 28 N.Y.3d 244, 262-263 [2016]; Overstock.com, Inc. v New York State Dept, of Taxation & Fin., 20 N.Y.3d 586, 593 [2013].) A party challenging the act must demonstrate its invalidity beyond a reasonable doubt. (See White, 38 N.Y.3d at 216; American Economy Ins. Co., 30 N.Y.3d at 149; Matter of County of Chemung, 28 N.Y.3d at 262; Overstock.com, Inc., 20 N.Y.3d at 593.) To satisfy due process for retroactive application of a new statute, it must be supported by "a legitimate legislative purpose furthered by rational means." (Matter of Regina Metro. Co., LLC, 35 N.Y.3d at 375 quoting American Economy Ins. Co.,30NY3dat 157-58.) A persuasive rationale for the possibly harsh impacts of retroactivity must also exist. (See Matter of Regina Metro. Co., LLC, 35 N.Y.3d at 375; Holly S. Clarendon Trust v State Tax Commn., 43 N.Y.2d 933, 935 [1978].)
"Generally, there are two types of retroactive statutes that courts have found to be constitutional: those employing brief, defined periods that function in an administrative manner to assist in effectuating the legislation, and statutory retroactivity that - even if more substantial - is integral to the fundamental aim of the legislation." (Matter of Regina Metro., Co., LLC, 35 N.Y.3d at 376.) The instant action falls under the second category. Thus, "[i]n cases where retroactivity is integral to full achievement of the fundamental purpose of the legislation, a rational basis for the retroactive effect may be readily identifiable." (Id. at 378.) Here, a legitimate legislative purpose supports retroactive application of FAP A in that the legislative materials identify an "ongoing problem" and that the legislation's purpose is to "clarify the meaning of existing statutes, and to rectify these erroneous judicial interpretations thereof." (Assembly Mem in Support of 2022 Assembly Bill A7737 enacted as L 2022, ch 821.) Further, they provide that the "gravity of the aforementioned problem, and the legislature's determination to remedy same, is illustrated by the determination of the legislature in passing this bill to apply to all actions governed by CPLR 213 (4) in which a final judgment of foreclosure and sale has not yet been enforced." (Id.) The amendment of CPLR 3217 responds to Freedom Mtge. Corp. (37 N.Y.3d 1) and "will restore longstanding law that made it clear that lenders' discontinuance of a foreclosure action that accelerated a mortgage loan does not serve to reset the statute of limitations." (Assembly Mem in Support of 2022 Assembly Bill A7737 enacted as L 2022, ch 821.) The Legislature justified FAPA, noting that "[a]s a direct result of the aforementioned judicial decisions, thousands of New York homeowners who secured closure of their cases by operation of longstanding statute of limitations principles are at risk of an onslaught of successive foreclosure actions that would otherwise be barred by the statute of limitations under longstanding statutory and case law." (Id.) Thus, retroactive application of FAPA restores the intended repose afforded by the applicable statute of limitations, which the Legislature has made clear should be enforced as it had always intended. The Legislature's subsequent advisement to the court of its intent regarding a previous enactment is entitled to "very great weight." (Caprio v New York State Dept, of Taxation &Fin., 25 N.Y.3d 744, 755 [2015]; Matter of Chatlos v McGoldrick, 302 NY 380, 388 [1951].)
Since these stated objectives would not be met and FAPA's remedial purpose would fail if the statute's application were limited to actions commenced on or after the date of its enactment, retroactive application of FAPA is supported by a rational legislative purpose. (See generally American Economy Ins. Co., 30 N.Y.3d at 158-59; Caprio, 25 N.Y.3d at 758; Matter of Raynor, 18 N.Y.3d at 59.) FAPA's aim "to thwart and eliminate abusive and unlawful litigation tactics that have been adopted and pursued in mortgage foreclosure actions to manipulate the law and judiciary to yield to expediency and the convenience of mortgage banking and servicing institutions at the expense of finality and repose that statutes of limitation are meant to ensure" and the Legislature's finding that the continuation of time-barred foreclosure actions "will cause the loss of countless homes and will burden the Courts" (Assembly Mem in Support of 2022 Assembly Bill A7737 enacted as L 2022, ch 821) furnish a persuasive rationale for impacts of dismissed claims.
As addressed above, FAPA is to be applied retroactively and is not constitutionally infirm. Thus, its amendment of relevant statutes furnishes a sufficient basis for renewal. (See Dinallo v DAL Elec., 60 A.D.3d 620, 621 [2d Dept 2009]; see also HSBC Bank USA, N.A. v Islam, 221 A.D.3d 672, 674 [2d Dept 2023].) Since the "deacceleration notice" dated October 20, 2015, "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," (CPLR 3217[e]; ARCPE 1, LLC v DeBrosse, 217 A.D.3d 999, 1001-1002 [2d Dept 2023]; GMAT Legal Title Trust 2014-1 v Kator, 213 A.D.3d 915 [2d Dept 2023],) the acceleration of the mortgage in the action commenced on August 30, 2010 was not effectively revoked. Thus, this action, commenced on August 20, 2018, is time-barred. (See CPLR 213 [4]; Reverse Mtge. Sols., Inc. v Gipson, 2024 NY Slip Op 04335; MTGLQ Inv'rs, L.P. v Singh, 216 A.D.3d 1087, 1088-89 [2d Dept 2023].)
Accordingly, Browne's motion to renew her prior cross-motion for summary judgment and opposition to plaintiff s prior motion for summary judgment is granted. Upon renewal, the court vacates the prior memorandum decision entered on March 5, 2020, as well as the order granting summary judgment and reference to compute entered on July 1, 2022, denies plaintiffs motion for summary judgment and appointment of a referee, and grants the branch of Browne's cross-motion for summary judgment dismissing the complaint. Plaintiffs motion for an order confirming the referee's report, granting a judgment of foreclosure and sale, directing the distribution of the sale proceeds, directing the entry of a default judgment and amending the caption is denied. This action is dismissed as time-barred.
This constitutes the Decision and Order of the Court.