Bank fails to comply with New York Foreclosure Statute of Limitations, Bank of New York Mellon canno


The case is The Bank of New York Mellon v. Bissessar where Defendant made a pre answer motion to dismiss a foreclosure complaint that was actually granted - the bank cannot foreclose on the home. A motion to dismiss a foreclosure action based on statute of limitations requires the Defendant, at first, to "demonstrate, prima facie, that the time to commence the action has expired by establishing, inter alia, when plaintiff's cause of action accrued." A foreclosure action has a six year statute of limitations. Usually, the Plaintiff, the bank, will accelerate the entire payment of the mortgage after a Defendant's failure to pay. Afterwards, the entire amount of the loan becomes due and, because of the acceleration, the six year statute of limitation for a foreclosure action begins to run.

The Defendant must show that the Plaintiff, the bank, failed to properly commence an action within six years. "Once that burden is met, plaintiff must raise an issue of fact to show that the statute was tolled or was otherwise inapplicable, or that it commenced the action within the applicable limitations period." Id. (citations omitted). The Court sets out the standard quite clearly:

An action to foreclose a mortgage is governed by a six-year statute of limitations (CPLR 213 [4]). With respect to a mortgage which is payable in installments, the six-year statute of limitations begins to run from the date each installment becomes due (Wells Fargo, N.A. v. Burke, 94 AD3d 980 [2d Dept 2012]; Wells Fargo v. Cohen, 80 AD3d 753 [2d Dept 2010]; Loiacono v. Goldberg, 240 AD2d 476 [2d Dept 1997]). However, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt (see Burke, 94 AD3d at 982; Loiacono, 240 AD2d at 477; EMC Mtge. Corp. v. Patella, 279 AD2d 604 [2d Dept 2001]). Id. at 2.

The Facts are as Follows:

On April 12, 2007, defendant gave to America's Wholesale Lender a mortgage against the real property known as 105-41 88th Street, Ozone Park, New York, to secure a note of even date, evidencing a loan given to defendant in the principal amount of $432,000.00, plus interest.

On August 26, 2008, The Bank of New York as Trustee, for the Benefit of the Certificateholders, CWABS, Inc. Asset-Backed Certificates, Series 2007-8, 400 Countrywide Way, Simi Valley, CA 93065, as alleged holder of the note and mortgage, commenced a foreclosure action in this court under Index No. 21432/2008 (the 2008 action) against, among others, defendant, based upon her alleged default in payment of the monthly mortgage installment that became due on April 1, 2008. As a result of the default, the plaintiff therein "elect[ed] to call due the entire amount secured by the mortgage." The 2008 action was then discontinued by Notice of Voluntary Discontinuance filed with the County Clerk on July 2, 2015. Thereafter, on June 2, 2016, plaintiff commenced the instant action to foreclose the mortgage which was the subject of the 2008 action, based upon an alleged default in payment of the monthly mortgage installment that became due on July 1, 2008.

Id. at 1-2.

When the burden shifted to the Plaintiff to show why the statute of limitations did not run, the Plaintiff alleged "that, since defendant made a payment which was received on June 21, 2010, the six-year limitations period began to run anew as of that date, thereby making the instant action as having been timely commenced." Id. at 3. The problem, as the Court saw it, was that the Plaintiff did not submit any proof and could not contend the allegations contained within Defendant's affirmation. Further, the Court dismisses the idea that the Defendant's pleas for a modification, without anything else, could reaffirm the obligation and start the statute running anew.

This case was dismissed - the Plaintiff cannot foreclosure the Defendant's home. In sum, Banks who commence foreclosure actions may not properly commence the action or commence the action within the applicable statute of limitations. Homeowners facing foreclosure, especially foreclosure on Long Island, should hire a competent and knowledgeable attorney. Call the Law Offices of Cory H. Morris to handle your foreclosure defense: 631-450-2515.

#foreclosure #NewYorkForeclosure

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