US BANK TRUST NATIONAL ASSOCIATION v. 972 GATES AVENUE LLC (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated January 2, 2024.  The order granted that branch of the motion of the defendant 972 Gates Avenue, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it as time-barred.

ORDERED that the order is affirmed, with costs.

On February 17, 2006, Felix Alberto Barzola (hereinafter the borrower) executed a note in the amount of $600,000 in favor of Alliance Mortgage Banking Corp. (hereinafter Alliance).  The note was secured by a mortgage on certain real property located in Brooklyn.

In August 2010, Chase Home Finance, LLC (hereinafter Chase), Alliance's successor in interest, commenced an action to foreclose the mortgage against the borrower, among others (hereinafter the first foreclosure action).  In an order dated April 13, 2022, the Supreme Court granted the borrower's motion for summary judgment dismissing the complaint in the first foreclosure action based on Chase's failure to strictly comply with RPAPL 1304.

In June 2022, the plaintiff, U.S. Bank Trust National Association, commenced this action to foreclose the mortgage against the defendant 972 Gates Avenue, LLC (hereinafter the defendant), among others.  In September 2023, the defendant moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it as time-barred.  The plaintiff opposed the motion, contending that it had timely commenced this action pursuant to the six-month savings provision in CPLR 205(a).  In reply, the defendant contended that Chase and the plaintiff were different entities and, thus, the plaintiff was not entitled to the benefit of the savings provision.  In an order dated January 2, 2024, the Supreme Court granted that branch of the defendant's motion.  The plaintiff appeals.

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4];  Lubonty v. U.S. Bank N.A., 34 N.Y.3d 250, 261, 116 N.Y.S.3d 642, 139 N.E.3d 1222;  U.S. Bank N.A. v. Medianik, 223 A.D.3d 935, 937, 206 N.Y.S.3d 78).  “[E]ven 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” (BHMPW Funding, LLC v. Lloyd–Lewis, 194 A.D.3d 780, 782, 149 N.Y.S.3d 141 [internal quotation marks omitted];  see GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d 915, 916, 184 N.Y.S.3d 805).  “Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the [holder of the note] elects in the complaint to call due the entire amount secured by the mortgage” (GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d at 916, 184 N.Y.S.3d 805;  see U.S. Bank N.A. v. Medianik, 223 A.D.3d at 937, 206 N.Y.S.3d 78).

Here, the six-year statute of limitations began to run in August 2010, when Chase commenced the first foreclosure action and elected in the complaint to call due the entire amount secured by the mortgage (see U.S. Bank N.A. v. Medianik, 223 A.D.3d at 938, 206 N.Y.S.3d 78).  This action was commenced in June 2022, more than 11 years after the commencement of the first foreclosure action.

Under CPLR 205(a), where an action is timely commenced and is terminated for any reason other than those specified in the statute, “the plaintiff ․ may commence a new action upon the same transaction or occurrence ․ within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period” (Deutsche Bank Natl. Trust Co. v. Pena, 240 A.D.3d 475, 477, 238 N.Y.S.3d 264 [internal quotation marks omitted] ).  However, the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ) created a new statute, CPLR 205–a, which is specific to real property actions (see id.).  CPLR 205–a(a)(1) states that “a successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff” (Deutsche Bank Natl. Trust Co. v. Pena, 240 A.D.3d at 477, 238 N.Y.S.3d 264).

FAPA “replaced the savings provision of CPLR 205(a) with CPLR 205–a” in mortgage foreclosure actions (Pryce v. U.S. Bank, N.A., 226 A.D.3d 711, 713, 210 N.Y.S.3d 121;  see CPLR 205[c] ).  Here, the plaintiff has not pleaded or proved that it is acting on behalf of Chase.  Therefore, the plaintiff is not entitled to the benefit of the savings provision of CPLR 205–a (see Deutsche Bank Natl. Trust Co. v. Pena, 240 A.D.3d at 477, 238 N.Y.S.3d 264;  Johnson v. Cascade Funding Mtge. Trust 2017–1, 220 A.D.3d 929, 932, 196 N.Y.S.3d 796).

The plaintiff's arguments challenging FAPA's retroactive application and constitutionality under the state and federal constitutions are without merit (see Deutsche Bank Natl. Trust Co. v Pena, 240 A.D.3d at 477, 238 N.Y.S.3d 264;  Deutsche Bank National Trust Co. v. Vista Holding, LLC, 239 A.D.3d 830, 834, 238 N.Y.S.3d 187).

CHAMBERS, J.P., DOWLING, MCCORMACK and QUIRK, JJ., concur.