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Greco v. Bank of America, N.A.

United States District Court, E.D. New York

April 25, 2017

STEVEN GRECO, Plaintiff,
BANK OF AMERICA, N.A., Defendant.



         In this diversity action to quiet title to real property, plaintiff Steven Greco (“plaintiff” or “Greco”) contends that, despite defendant's possession of a note and mortgage on certain real property, he possesses absolute and unencumbered title to that property because the note and mortgage were accelerated and the relevant limitations period has since expired. Defendant Bank of America N.A. (“defendant”) maintains that it properly decelerated the note and mortgage within the limitations period and, on that basis, has filed an unopposed motion for summary judgment. For the following reasons, defendant's motion is granted.


         A. Factual History

         All facts save one are undisputed.[1] Plaintiff is the owner of real property located at 215 19th Street, Brooklyn, New York (the “property”). See Defendant's Statement of Undisputed Material Facts (Mar. 13, 2017) (“Def. 56.1 Stmt.”) ¶ 1, Electronic Case Filing (“ECF”) Docket Entry (“DE”) #26-2. On September 1, 2006, plaintiff executed a note in favor of Impac Funding Corporation (“Impac”) in the amount of $970, 000 (the “note”), secured by a mortgage on the property (the “mortgage”) executed the same day in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) as Impac's nominee. See id. ¶¶ 2-3. Plaintiff defaulted on his obligations under the note and mortgage, on or about February 1, 2008. See id. ¶ 4.

         On December 16, 2008, IndyMac Federal Bank FSB (“IndyMac”)-to whom MERS, still acting as nominee for Impac, had assigned the mortgage-filed a foreclosure action against Greco (the “foreclosure action”), seeking all sums due and owing under the note and the mortgage. See id. ¶¶ 5-6. Greco was served on December 20, 2008. See Supplemental Declaration of Brian J. Slipakoff (Mar. 13, 2017) (“Supp. Slipakoff Decl.”) ¶¶ 4-5 & Ex. A, at 4, DE #26-8.[2] The Federal Deposit Insurance Corporation, acting as receiver for IndyMac, subsequently assigned the mortgage to defendant, which currently possesses the original note. See Def. 56.1 Stmt. ¶¶ 7-8. Later, on or about September 26, 2013, Ocwen Loan Servicing, LLC (“Ocwen”) began servicing the note and mortgage, acting at all subsequent times as defendant's attorney-in-fact under a limited power of attorney. See id. ¶¶ 9-10. In furtherance of that power, Ocwen retained the law firm of McCabe, Weisberg & Conway (“McCabe”) to pursue defendant's remedies with respect to Greco's default. See id. ¶ 11.

         The foreclosure action was dismissed on December 3, 2013. See id. ¶ 12. Just over one year later, on or around December 15, 2014, McCabe, acting on defendant's behalf, sent plaintiff a letter dated December 15th (the “12/15/14 Letter”), stating that, “[a]t this time, the lender hereby revokes it's [sic] proper election to accelerate all sums due and owing under the [September 1, 2006] loan documents.”[3] Id. ¶ 14 (citing Declaration of Mark Golab (Mar. 13, 2017) (“Golab Decl.”) ¶¶ 5-8 & Exs. A & B, at 4, 6, DE #26-6). Defendant has not elected to reaccelerate. See Def. 56.1 Stmt. ¶ 18.

         The sole point of contention here is whether the 12/15/14 Letter was in fact mailed on that particular date. Compare Def. 56.1 Stmt. ¶ 14, with Pl. 56.1 Stmt. ¶ 14. Earlier in the litigation, plaintiff argued, citing United States Postal Service (“USPS”) tracking information and claiming that the relevant envelope “appears” to be post-marked December 16, 2014, that the 12/15/14 Letter was not mailed until December 16th. See Response in Opposition re Motion for Pre Motion Conference (“12/6/16 Pl. Letter”) at 1-2, DE #17; see also Pl. 56.1 Stmt. ¶¶ 14 & Ex. A, at 7, 9. Based on plaintiff's response to defendant's request for a pre-motion conference, as well as the colloquy at that conference, the Court understands plaintiff to contend that the date until which defendant could decelerate the note and mortgage was December 15, 2014; hence, according to plaintiff, defendant failed to decelerate the mortgage prior to that deadline and the mortgage is unenforceable. See, e.g., 12/6/16 Pl. Letter at 1-2; see also Memorandum of Law in Support of Motion for Summary Judgment (Mar. 13, 2017) (“Def. Mem.”) at 1, DE #26-1. Defendant counters that the six-year limitations period did not begin to run until service of the summons and complaint in the foreclosure action, on December 20, 2008, and that deceleration was therefore timely even if the 12/15/14 Letter had been sent on December 16th. See id. at 6-8. Defendant also asserts, citing declarations by McCabe employees and contemporaneous records, that the 12/15/14 Letter was in any event deposited in a USPS facility on December 15, 2014, and therefore represents a timely act to decelerate the note and mortgage even under plaintiff's theory of the applicable limitations period. See Def. Mem. at 8-10 (citing Golab Decl. ¶¶ 4-6 & Ex. C, at 8-9; Affidavit of Joyce Celano (Mar. 13, 2017) (“Celano Aff.”) ¶ 4, DE #26-5).

         B. Procedural History

         Greco initiated this lawsuit on March 29, 2016 in state court, see Complaint (Mar. 29, 2016), DE #1-1, from which defendant thereafter removed it to this Court, see Notice of Removal (May 3, 2016), DE #1. On December 9, 2016, the parties consented to have a magistrate judge consider and enter a final order as to defendant's anticipated motion for summary judgment. See Consent to Magistrate Judge Disposition on Motion (Dec. 9, 2016), DE #18. The instant motion was filed on March 13, 2017. See Motion for Summary Judgment (Mar. 13, 2017), DE #26. Though plaintiff's opposition was due April 3, 2017, plaintiff failed to submit one, and the Court directed him, on pain of sanctions, to do so by April 7, 2017. See Electronic Order (Apr. 5, 2017). When April 7th came and went, plaintiff had yet to file any opposition, and defendant submitted a “reply” in support of its motion, asking the Court to “treat [its] motion as uncontested and enter judgment in [its] favor.” Reply (Apr. 10, 2017) at 2, DE #27.

         To address plaintiff's failure to submit an opposition brief despite two separate orders, as well as plaintiff's pattern and practice of ignoring judicial directives in this case, [4] the Court conducted a telephone conference with the parties on April 12, 2017. See Minute Entry (Apr. 12, 2017), DE #28. During the conference, plaintiff's counsel, to explain his omissions, stated that his client has been uncooperative and has failed to provide an affidavit supporting an opposition to summary judgment; yet counsel failed to explain why he had not brought that issue to the Court's attention in advance of the deadlines set by the Court. See id. Counsel conceded that as a result of plaintiff's failure to submit an opposition, defendant's motion should be granted and the case dismissed. See id.


         Defendant's motion raises a fundamental question: When does the six-year limitations period in which to revoke an acceleration of a mortgage debt begin and end? Defendant contends that the limitations period at issue here began on December 20, 2008, when plaintiff was served with the summons and complaint in the foreclosure action, and expired on December 19, 2014. See Def. Mem. at 6-8. Plaintiff has argued that the limitations period began to run on December 16, 2008, when the foreclosure action was filed, and expired on December 15, 2014. See 12/6/16 Pl. Letter at 2. Neither party's calculation, however, accounts for the fact that New York law requires that the date of filing (or service) be excluded from the calculation of the limitations period. Accordingly, even assuming, arguendo, that plaintiff's view is correct, the limitations period ended on December 16, 2014, not December 15th, and defendant's notice of deceleration was timely if it was mailed on either day. In any event, there is no genuine factual dispute that defendant mailed the notice of deceleration on December 15, 2014.

         I. Sum ...

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