Furthermore, a plaintiff must demonstrate compliance with the notice and filing requirements of RPAPL §§ 1304 and 1306. N.Y. RPAPL § 1306(1) (“Each lender.. .shall file with the superintendent of financial services [the information set forth in RPAPL § 1306(2)].as a condition precedent” to initiating any foreclosure proceeding); OneWest Bank, N.A. v. Simon, No. 14-CV-6622, 2019 WL 1320275, at *11 (E.D.N.Y. Mar. 22, 2019) (Compliance with Section 1304 “is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.”) (citation omitted)
The Mortgage at issue herein provides that “[t]his Security Instrument is governed by Federal law and the law of New York State.” Mortgage § 15. Furthermore, a plaintiff must demonstrate compliance with the notice and filing requirements of RPAPL §§ 1304 and 1306. N.Y. RPAPL § 1306(1) (“Each lender... shall file with the superintendent of financial services [the information set forth in RPAPL § 1306(2)].as a condition precedent” to initiating any foreclosure proceeding); OneWest Bank, N.A. v. Simon, No. 14-CV-6622, 2019 WL 1320275, at *11 (E.D.N.Y. Mar. 22, 2019) (Compliance with Section 1304 “is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.”) (citation omitted)
ECF No 1-3 at 10. Furthermore, a plaintiff must also demonstrate compliance with the notice and filing requirements of RPAPL §§ 1304 and 1306. N.Y. RPAPL § 1306(1) (“Each lender . . . shall file with the superintendent of financial services [the information set forth in RPAPL § 1306(2)] . . . as a condition precedent” to initiating any foreclosure proceeding); OneWest Bank, N.A. v. Simon, No. 14 CV 6622 (RJD), 2019 WL 1320275, at *11 (E.D.N.Y. Mar. 22, 2019) (Compliance with Section 1304 “is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.”) (citation omitted)
(internal quotation marks and citation omitted). The burden of providing affirmative evidence of a defense generally rests with Defendants, but where, as here, “standing is put into issue by a defendant's answer, a [p]laintiff must prove its standing if it is to be entitled to relief.” 13410 Lot, LLC v. RNR Management, LLC, No. 12-CV-1899 (KAM) (VMS), 2019 WL 8587296, at *7 (E.D.N.Y. Sept. 30, 2019); see OneWest Bank, N.A. v. Simon, 2019 WL 1320275, at *6 (E.D.N.Y. Mar. 22, 2019).
Although equitable tolling does not apply, some courts addressing the effect of a withdrawal of foreclosure on the statute of limitations have found an abandonment of acceleration. See, e.g., OneWest Bank, N.A. v. Simon, 2019 WL 1320275 at *10 (E.D.N.Y. March 22, 2019). An abandonment of acceleration "restor[es] the note's original maturity date" for purposes of accrual, thereby resetting the statute of limitations.
The question of whether a stipulation of discontinuance alone tolls the statute of limitations has received "considerable, though inconsistent treatment." OneWest Bank, N.A. v. Simon, 2019 WL 1320275 at *9 (E.D.N.Y. Mar. 22, 2019) (citations omitted). "[T]he New York Court of Appeals has not addressed whether the voluntary discontinuance of a foreclosure action constitutes an affirmative act revoking a prior acceleration."
ECF No. 1-3 at 10. Furthermore, a plaintiff must also demonstrate compliance with the notice and filing requirements of RPAPL §§ 1304 and 1306. N.Y. RPAPL § 1306(1) (“Each lender . . . shall file with the superintendent of financial services [the information set forth in RPAPL § 1306(2)] . . . as a condition precedent” to initiating any foreclosure proceeding); OneWest Bank, N.A. v. Simon, No. 14 CV 6622 (RJD), 2019 WL 1320275, at *11 (E.D.N.Y. Mar. 22, 2019) (Compliance with Section 1304 “is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.”) (citation omitted)
In general, with the exception of the affirmative defense that Plaintiff lacks standing, Defendants bear the burden of proving their affirmative defenses through production of admissible evidence. OneWest Bank, N.A. v. Simon, No. 14 CV 6622 (RJD), 2019 WL 1320275, at *6 (E.D.N.Y. Mar. 22, 2019); Frankel v. ICD Holdings S.A., 930 F. Supp. 54, 65 (S.D.N.Y. 1996). 1. Vasquez