B. Section 2415(a) Does Not Bar Defendant from Foreclosing on the Mortgage
It is well settled that the United States is not subject to any statute of limitations unless Congress has expressly provided otherwise. United States v. Summerlin, 310 U.S. 414, 416-17, 84 L. Ed. 1283, 60 S. Ct. 1019 (1940); see also United States v. Podell, 572 F.2d 31, 35 n.7 (2d Cir. 1978) (citation omitted). By its plain language, the six-year statute of limitations set out in § 2415(a) applies only to actions for "money damages brought by the United States." § 2415(a) (emphasis added). Indeed, the statute provides that "nothing herein shall be deemed to limit the time for bringing an action to establish the title to, or right of possession of, real or personal property." 28 U.S.C. § 2415(c). Thus, an action by the United States to foreclose a mortgage is not governed by § 2415(a). United States v. Matthews, No. CV 86-3645, 1988 76567, at *1 (E.D.N.Y. 1988) (McLaughlin, J.) (citation omitted); see also United States v. Freidus, 769 F. Supp. 1266, 1273 (S.D.N.Y. 1991); United States v. Copper, 709 F. Supp. 905, 907 (N.D. Iowa 1988); Curry v. United States Small Business Admin., 679 F. Supp. 966, 970 (N.D. Cal. 1987); Cracco v. Cox, 66 A.D.2d 447, 414 N.Y.S.2d 404 (4th Dep't 1979).
In Cracco, the Fourth Department extensively examined § 2415(a) and acknowledged the "long-standing rule that the right to foreclose a mortgage securing a debt is distinct from the right to bring an action for money damages on the note or bond representing the debt." Cracco, 414 N.Y.S.2d at 405. In addition, the court stressed that "the right to foreclose survives [even] when an action on the debt is barred by the statute of limitations." Id. at 406.
Plaintiff argues that Cracco is at odds with United States v. Alessi, 599 F.2d 513 (2d Cir. 1979) (per curiam). In Alessi, the United States made a motion for the foreclosure and sale of property that was mortgaged to the Veterans Administration. The district court granted summary judgment to the United States. For purposes of the motion before this Court, the appeal was limited to the issue of whether the cause of action for foreclosure accrued at the time of the default or, as the government contended, at the time that the government elected to foreclose, i.e., upon initiation of suit. See id. at 515.
The Second Circuit held that the United States' cause of action for foreclosure accrued at the time it elected to foreclose and, therefore, the action was timely. Id. at 515 & n.4. The Alessi court's mere reference, in a footnote, to § 2415(a) does "not amount to a 'holding' that Section 2415(a) applies to all mortgage foreclosure actions." Freidus, 769 F. Supp. at 1274 (construing Alessi). Thus, this Court finds that § 2415(a) does not bar defendant from seeking to foreclose on the mortgage at issue.
C. Section 213(4) Does Not Bar Defendant from Foreclosing on the Mortgage
Plaintiff submits that defendant is bound by New York State's six-year statute of limitations period on mortgage foreclosure actions. See CPLR § 213(4). This argument is belied by the fact that the Supreme Court has "consistently held that federal law governs questions involving the rights of the United States arising under nationwide federal programs." United States v. Kimbell Foods, Inc., 440 U.S. 715, 726, 59 L. Ed. 2d 711, 99 S. Ct. 1448 (1979) (discussing priority of liens arising from federal lending programs and determining that the SBA "unquestionably performs federal functions"); see also United States v. John Hancock Mutual Life Ins. Co., 364 U.S. 301, 308, 5 L. Ed. 2d 1, 81 S. Ct. 1 (1960) ("the United States is not subject to local statutes of limitations").
"Where federal statutes or laws do not delineate these rights, the federal courts must 'fill the interstices of federal legislation according to their own standards.'" Matthews, 1988 WL 76567, at *1 (quoting Kimbell Foods, Inc., 440 U.S. at 727 (citation omitted)). However, in discussing the very same issue as in the instant case, Judge McLaughlin stated, "There is no vacuum to fill because the ancient rule that the United States is not subject to a limitations period clearly addresses the issue presented." Id. Therefore, § 213(4) does not bar defendant from seeking to foreclose on the mortgage.
For the aforesaid reasons, plaintiff's motion to amend its complaint is granted pursuant to Rule 15(a), plaintiff's motions pursuant to subsections (a) and (b) of Rule 56 are denied, and defendant's motion for summary judgment is granted pursuant to Rule 56(b). Accordingly, the Clerk is directed to close the file in this case.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
March 5, 1992