Deutsche Bank National Trust Company Americas, AS TRUSTEE FOR MORTGAGE ASSET-BACKED PASS- THROUGH CERTIFICATES, SERIES 2007-QH6, Plaintiff,
Jhon Bernal, OPTION ONE MORTGAGE CORPORATION, JOHN DOE (being fictitious, the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributees, executors, administrators, trustees, guardians, assignees, creditors or successors), Defendants.
Sandelands Eyet LLP By: Margaret S. Stefandl, Esq. Attorneys
Jasbrinder Sahni, Esq. Attorney for defendant Jhon Bernal
ALAN D. SCHEINKMAN Justice.
residential foreclosure action, Defendant moves for an order
dismissing the complaint and for legal fees; Plaintiff
cross-moves to strike the answer and counterclaims of
Defendant, or in the alternative to compel discovery.
critical facts may be succinctly stated. Plaintiff's
predecessor-in-interest brought a foreclosure action against
Defendant in 2009 and, in doing so, elected to accelerate all
sums due on the underlying debt. The prior action was
dismissed for failure to prosecute in March 2015. One month
later, the attorney for the servicer, on behalf of Plaintiff,
purported to give notice to Defendant that it rescinded the
acceleration. Plaintiff commenced the present action in
December 2015, more than six years after the underlying debt
had been accelerated. The question of law presented is
whether the mortgagee has effectively rescinded the prior
acceleration of the underlying debt so as to avoid
application of the statute of limitations. This Court holds
that, under the circumstances presented, the mortgagee did
not do so and the present action is time barred.
and Procedural Background
action was commenced by the filing of a summons, complaint
and notice of pendency with the Westchester County Clerk on
December 2, 2015 via New York State Courts Electronic Filing
system (hereafter, "NYSCEF"). Defendant Jhon Bernal
(hereafter "borrower") filed an answer with
counterclaims via NYSCEF on December 24, 2015. Plaintiff
filed a notice of rejection of borrower's answer on
December 24, 2015 and filed a reply to the counterclaims on
January 13, 2016.
alleged in the complaint, inter alia, that on or about March
12, 2007, borrower executed and delivered a note whereby
borrower promised to pay $425, 000.00 plus interest on the
unpaid amount due, permitting the principal balance to
increase to a total maximum obligation of $467, 500.00.
Plaintiff further alleged that as security for payment of
said note that borrower duly executed and delivered a
mortgage which was recorded in the office of the Westchester
County Clerk on September 20, 2007. Plaintiff stated that the
mortgaged property address is known as 27 Morgan Street, New
Rochelle, New York 10805. Plaintiff alleged that it is the
owner and holder of the subject note and mortgage or has
authority to commence this action on behalf of the owner.
Plaintiff alleged that borrower defaulted on its obligations
under the note and mortgage by failing to make the payment
that was due on March 1, 2009 and thereafter. Plaintiff
alleges that it accelerated the underlying debt by notice
given on July 31, 2015.
December 23, 2015 plaintiff filed a specialized request for
judicial intervention indicating that this action was
eligible pursuant to CPLR 3408(a) for a mandatory settlement
conference. On December 23, 2015, the office of the clerk of
the Foreclosure Settlement Conference Part (hereafter
"FSCP") filed a foreclosure conference notice
advising the parties to appear for an initial settlement
conference on "1/25/16 at 9:30 a.m., on the 18th floor
Courtroom 1803 of the Westchester County Courthouse." A
copy of the notice was also sent to borrowers via U.S. Mail.
On January 15, 2016 both parties appeared in the FSCP by
counsel. The matter was released without settlement on that
date and plaintiff was directed to resume prosecution of the
action. The matter was adjourned to the FSCP Dismissal
Calendar on July 8, 2016. On July 8, 2016 plaintiff's
counsel appeared in the FSCP and a preliminary conference was
scheduled for September 14, 2016.
preliminary conference was held on September 14, 2016 and a
preliminary conference stipulation was executed by the
parties and "so-ordered" by this Court on September
28, 2016. The stipulation was filed via NYSCEF on September
29, 2016. A trial readiness conference was held on March 13,
2017 and adjourned to June 5, 2017.
filed the instant motion to dismiss the complaint and for
attorneys fees on November 28, 2016. Plaintiff filed
opposition to the motion and a cross-motion to strike the
answer or compel discovery on January 6, 2017. The parties
filed a stipulation to adjourn the motion to January 27,
2017. The motion was deemed fully submitted on that date.
moves to dismiss the complaint on the basis that this action
is time barred.
foreclosure action is subject to a six-year statute of
limitations (see CPLR 213). "With respect to
a mortgage payable in installments, separate causes of action
accrued for each installment that is not paid, and the statue
of limitations begins to run, on the date each installment
become due...However, 'even if a mortgage is payable in
installments, once a mortgage debt is accelerated, the entire
amount is due and the Statute of Limitations begins to run on
the entire debt'" Wells Fargo Bank, N.A. v
Burke, 94 A.D.3d 980');">94 A.D.3d 980 (2d Dept 2012).
undisputed that on July 4, 2009, Aurora Loan Services, LLC
("Aurora") filed a summons and complaint commencing
a prior action regarding the same mortgage debt that is at
issue in the instant action. The prior action was dismissed
on March 11, 2015 for lack of prosecution. Defendant had
moved for dismissal pursuant to CPLR 3216 (entitled
"Want of prosecution"), which motion was not
opposed by Plaintiff. Since the March 11, 2015 dismissal
order did not specify that the dismissal was "with
prejudice", the dismissal, by operation of law, was
without prejudice (CPLR 3216[a]).
argues that "...clearly, the notice of acceleration was
served before the complaint dated July 14, 2009 [in the prior
action] was filed" (see Defendant's
Memorandum of Law, Preliminary Statement). Defendant offers
no evidence to show that the debt was accelerated before the
filing of the summons and complaint, contending instead, that
paragraph twenty-two of the mortgage at issue mandates that
the lender serve a "notice of acceleration", which
is a condition precedent to filing a foreclosure action.
Thus, Defendant reasons, either the notice of acceleration
was provided to him at least thirty days before the prior
action was ...