U.S. Bank National Association, etc., appellant,
Marsha Rose Gordon, etc., respondent, et al., defendants.
McGlinchey Stafford, PLLC, New York, NY (Mitra Paul Singh and
Brian McGrath of counsel), for appellant.
& Vlahakis, Brooklyn, NY (Mark Hanna of counsel), for
PRISCILLA HALL, J.P., ROBERT J. MILLER, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the plaintiff appeals from an
order of the Supreme Court, Kings County (Velasquez, J.),
dated September 17, 2015, which granted that branch of the
motion of the defendant Marsha Rose Gordon which was pursuant
to CPLR 3211(a)(5) to dismiss the complaint insofar as
asserted against her as time-barred.
that the order is reversed, on the law, with costs, and that
branch of the motion of the defendant Marsha Rose Gordon
which was pursuant to CPLR 3211(a)(5) to dismiss the
complaint insofar as asserted against her as time-barred is
November 2005, the defendant Marsha Rose Gordon borrowed
$412, 000 and executed a promissory note evidencing her debt
in favor of Fremont Investment & Loan. The note was
secured by a mortgage on real property located in Brooklyn.
Rose Gordon was required to make monthly payments under the
terms of the note, but the note and mortgage gave the holder
of the note the option of electing to accelerate the entire
debt upon Rose Gordon's default.
2007, less than two years after the loan was issued, an
action to foreclose the mortgage (hereinafter the 2007
action) was commenced against Rose Gordon by "U.S. Bank
National Association c/o Chase Home Finance, LLC 10790 Rancho
Bernardo Road San Diego, CA 92127" (hereinafter the
prior plaintiff). The complaint in the 2007 action alleged
that Rose Gordon had defaulted by failing to make a required
monthly payment when it became due, and stated that the
plaintiff in that action was electing to call due the entire
amount secured by the mortgage.
2008, an order of reference was issued to the prior plaintiff
in the 2007 action. However, in 2011, Rose Gordon was granted
leave to serve an answer. In her answer, Rose Gordon asserted
that the prior plaintiff lacked standing to commence that
action. Thereafter, in response to a motion to compel
responses to outstanding discovery requests, Rose Gordon
cross-moved, inter alia, to dismiss the 2007 complaint on the
ground that the prior plaintiff lacked standing. The prior
plaintiff subsequently moved for leave to amend the caption
to reflect U.S. Bank N.A., as Trustee of J.P. Morgan
Acquisition Corp. 2006-FRE2, Asset Backed Pass-Through
Certificates, Series 2006- FRE2, as successor plaintiff.
order dated May 16, 2013, the Supreme Court determined that
the prior plaintiff was not the holder of the note when the
2007 action was commenced. Accordingly, the court granted
that branch of Rose Gordon's cross motion which was to
dismiss the 2007 complaint for lack of standing. The court
denied, as academic, that branch of the prior plaintiff's
motion which sought leave to amend the caption to reflect the
instant action to foreclose the mortgage was commenced on
October 22, 2013, by U.S. Bank National Association, as
Trustee for J.P. Morgan Acquisition Corp. 2006-FRE2, Asset
Backed Pass-Through Certificates, Series 2006-FRE2. The
complaint (hereinafter the 2013 complaint) alleged that the
mortgage had been assigned to the plaintiff in 2009, and that
it was the current holder of both the note and the mortgage.
The 2013 complaint further alleged that Rose Gordon had
defaulted by failing to make monthly payments beginning on
March 1, 2007, and that the plaintiff was exercising its
option to accelerate the debt and call due the entire amount
secured by the mortgage.
Gordon thereafter submitted a pre-answer motion, inter alia,
to dismiss the 2013 complaint on the ground that the action
was barred by the applicable statute of limitations. In
support of her motion, Rose Gordon submitted, among other
things, a copy of the 2007 complaint. Rose Gordon argued that
the 2007 complaint "serve[d] to demonstrate that the
mortgage was accelerated as of... March 1, 2007."
plaintiff opposed Rose Gordon's motion, inter alia, to
dismiss the 2013 complaint. The plaintiff argued that the
statute of limitations did not begin to run on the entire
mortgage debt until that debt was accelerated and that Rose
Gordon's motion should be denied because the action was
timely commenced. The plaintiff further argued that, pursuant
to CPLR 205, it was entitled to commence this action within
six months after the dismissal of the 2007 action.
order appealed from, the Supreme Court determined that
"the  complaint... demonstrate[d] that the
mortgage was accelerated as of... March 1, 2007."
Accordingly, the court granted that branch of Rose
Gordon's motion which was to dismiss the 2013 complaint
as time-barred. The court did not address the arguments
advanced by the plaintiff in opposition to Rose Gordon's
party may move for judgment dismissing one or more causes of
action asserted against him [or her] on the ground that...
the cause of action may not be maintained because of... [a]
statute of limitations" (CPLR 3211[a]). As relevant
here, "an action upon a bond or note, the payment of
which is secured by a mortgage upon real property, or upon a
bond or note and mortgage so secured, or upon a mortgage of