For a foreclosure commenced in 2010 the Plaintiff elected to contact thanks to the whole total secured by the home loan. That action was dismissed in 2012. In 2016, Plaintiff introduced an motion less than New York’s Actual Property Steps and Proceedings Law Posting 15 (“Action to compel the dedication of a claim to actual property”) to have the home loan canceled and discharged of report on the floor that the statute of constraints experienced expired. The Defendant-mortgagee asserted that Plaintiff experienced deserted the home and that Defendant’s being in possession of the residence considering that 2013 pursuant to paragraph nine of the house loan (“Lender’s Proper to Guard Its Rights in the Property”) had tolled the statute of constraints. Underneath paragraph 9, if the borrower abandoned the home, the mortgagee may perhaps “do and pay back for regardless of what is acceptable or acceptable to shield Lender’s interest in the Home and Lender’s legal rights.”The Supreme Court, Westchester County, grant of the Defendant’s motion for summary judgment dismissing the complaint was reversed by the Appellate Division, Second Office, which also granted the Plaintiff’s motion to dismiss the counterclaim to foreclose the home finance loan as staying time-barred. According to the Appellate Division, whilst
“[t]he statute of restrictions will not operate towards a ‘mortgagee in possession’ given that the mortgagor’s consent to that possession is a continuing acknowledgment of the credit card debt [citations omitted]…[T]he mere actuality that [the Defendant] took measures to shield its rights in the residence below paragraph nine of the house loan does not set up that the parties achieved an settlement for [the Defendant] to get possession of the premises with all the rights and obligations that possession involves. Paragraph 9 of the house loan merely makes it possible for the mortgagee to take actions to protect its legal rights in the assets [citations omitted], but the training of all those legal rights are not able to be construed as the mortgagor’s continuing acknowledgment of the financial debt so as to toll the statute of constraints.”
Mardenborough v. U.S. Financial institution N.A., 2022 NY Slip Op 00034, decided January 5, 2022, is posted at https://www.nycourts.gov/reporter/3dseries/2022/2022_00034.htm.