Opinion
Index No. 604133/2019 Motion Seq. No. 003
10-11-2023
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE OF UPLAND MORTGAGE LOAN TRUST, Plaintiff, v. STANLEY LOZOWSKI, et. al., Defendant.
Unpublished Opinion
Motion Submitted: 6/15/23
Present: HON. DAVID P. SULLIVAN Supreme Court Justice
David P. Sullivan, Judge
The following papers were read on this motion:
Order to Show Cause and Supporting Documents........................................... 1
Affirmation in Opposition and Supporting Documents................................... 2
Defendant Stanley Lozowski ("Defendant") has moved by order to show cause for an order staying the proceedings, vacating the Judgment of Foreclosure and Sale dated November 30, 2022, dismissing the action, and other related relief. Plaintiff opposed and the motion was deemed submitted June 15, 2023.
The underlying action was commenced on March 26, 2019 and seeks foreclosure with respect to a certain Note and Mortgage executed by Defendant and Evangeline Lozowski on December 20, 1996 secured by the reap property known as 503 Beech Street, New Hyde Park, New York. It is not disputed that plaintiffs predecessor-in-interest commenced a prior foreclosure action under Index #5747/2010 (the "2010 Action") which action was discontinued by stipulation dated September 5, 2012, nearly seven years prior to the commencement of the instant action.
Plaintiff was awarded summary judgment and an order of reference in this action on January 17, 2020 (Adams, J.). Judgment of Foreclosure and Sale was granted November 30, 2022 (the "Judgment"). The order was granted over Defendant's opposition wherein he raised the issue of the statute of limitations. Notice of Entry was served January 3, 2023 and Defendant timely filed a Notice of Appeal on January 30, 2023. The instant motion was filed May 22, 2023.
Defendant now moves for an order vacating the Judgment of Foreclosure and Sale based upon, inter alia, the enactment of the Foreclosure Abuse Prevention Act ("FAPA") on December 30, 2022, notably before notice of entry was served with respect to the Judgment.
Plaintiff argues that, in accordance with this court's prior decision in U.S. Bank Trust, N.A. as Trustee for LB-Cabana Series IV Trust v. Leonardo, where plaintiff has scheduled a foreclosure sale, even where same has not yet been conducted, the judgment should be deemed "enforced" and is thus beyond the reach of the retroactive application of FAPA (79 Misc.3d 1075, [Nassau County Sup. Ct. 2023]). Leonardo is distinguishable from the instant matter inasmuch as Defendant here has filed a timely motion for vacatur and/or renewal with respect to the Judgment (see, Bermudez v. New York City Housing Authority, 199 A.D.2d 356 [2d Dept 1993]; Bray v. Gluck, 235 A.D.2d 72 [3d Dept 1997] [a motion for renewal is timely when brought prior to the submission of the appeal as the Supreme Court retains discretion to reconsider its order]). Further, in light of the fact that FAPA took effect less than a month after the Judgment was entered and prior to service of notice of entry, vacatur of the Judgment is permissible, and warranted under the circumstances (CPLR 5015).
"Pursuant to CPLR 213(4), an action to foreclose a mortgage is subject to a six-year statute of limitations. Even if the mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and payable, and the statute of limitations begins to run on the entire debt. Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the plaintiff elects in the complaint to call due the entire amount secured by the mortgage" (GMAT Legal Title Trust 2014-1 v. Kator, 213 A.D.3d 915 [2d Dept 2023][internal citations omitted]).
It had been previously held that "where acceleration occurred by virtue of the filing of a complaint in a foreclosure action, the noteholder's voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder" (Freedom Mortgage Corporation v. Engel, 37 N.Y.3d 1 [2021]). Even under those circumstances, a revocation of an acceleration would have to have been effectuated prior to the expiration of the statute of limitations to have any effect (Bayview Loan Servicing, LLC v. Paniagua, 207 A.D.3d 691 [2d Dept 2022]; NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068 [2d Dept 2017]).
Here, plaintiff argues that, not only was the 2010 Action discontinued, but "de-acceleration" letters were also sent prior to the expiration of the statute of limitations which they claim renders the instant action timely.
The Foreclosure Abuse Prevention Act ("FAPA") was enacted on December 30,2022 which, inter alia, legislatively overruled the Court of Appeals' decision in Freedom Mortgage Corporation v. Engel. FAPA also amended, inter alia, CPLR §203 by adding subdivision (h), which provides that
Once a cause of 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 §203 [h]).
FAPA (§10) states that "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 instant motion is a direct, timely, challenge to the Judgment prior to the submission of the appeal and requires review and reconsideration of the underlying Judgment (CPLR 2221). Plaintiffs arguments regarding the constitutionality of FAPA as applied retroactively at a post-judgment posture are thus of no moment. Their remaining contentions are without merit (see, e.g. Id., HSBC Bank USA, N.A. as Trustee of Ace Securities Corp. Home Equity Loan Trust v. IP A Asset Management, LLC, 190 N.Y.S.3d 622 [Suffolk Cty. Sup. Ct. 2023]; Deutsche Bank National Trust Company as Trustee for Registered Holders of Morgan Stanley ABS Capital line. Trust 2006-HE5 v. Dagrin, 190 N.Y.S.3d 582 [Queens Cty. Sup. Ct. 2023]).
Here, inasmuch as the debt was accelerated by virtue of the commencement of the 2010 Action and plaintiff has no right to unilaterally reset the statute of limitations, the instant action is time-barred and must be dismissed (CPLR 213 [4]; 203 [h]).
In light of the foregoing, it is hereby:
ORDERED, that the Defendant's motion is hereby granted and the complaint filed under Index #604133/2019 is hereby dismissed. The Clerk of the County of Nassau, upon the payment of any applicable fees, is hereby directed to file/record this order cancelling the Notices of Pendency filed March 26, 2019 and March 25, 2022 against the property known as 503 Beech Street, New Hyde Park, New York, and as Section 8, Block 347, Lot 12 under the Nassau County Tax Assessment Map; and it is further
ORDERED, that any other relief not expressly granted herein is otherwise denied.
This constitutes the decision and order of the Court.