MORGAN STANLEY MORTGAGE LOAN TRUST 2007 3XS v. DEJESUS (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 July 18, 2023.  The order granted the motion of the defendant Juan DeJesus, inter alia, for summary judgment dismissing the complaint insofar as asserted against him as time-barred.

ORDERED that the order is affirmed, with costs.

In 2006, the defendant Juan DeJesus (hereinafter the defendant) executed a note and mortgage encumbering certain real property located in Brooklyn.  In August 2010, the plaintiff's predecessor in interest commenced an action to foreclose the mortgage (hereinafter the 2010 action).  In an order dated July 26, 2013, the Supreme Court, inter alia, granted the unopposed motion of the plaintiff's predecessor in interest to discontinue the 2010 action.

In February 2017, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant.  The defendant interposed an answer in which he asserted, among other things, an affirmative defense that this action was time-barred.

After the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ), the defendant moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him as time-barred.  In opposition, the plaintiff argued, among other things, that the defendant's motion lacked sufficient evidentiary support, that FAPA should not be applied retroactively to this action, and that retroactive application of FAPA would violate the Due Process, Contract, and Takings Clauses of the United States Constitution.  By order dated July 18, 2023, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4];  Kashipour v. Wilmington Sav. Fund Socy., FSB, 144 A.D.3d 985, 986, 41 N.Y.S.3d 738;  Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491).  “ ‘[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’ ” (Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d at 867, 39 N.Y.S.3d 491, quoting EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161).  “ ‘An acceleration of a mortgage debt can occur when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due’ ” (Collins v. Bank of N.Y. Mellon, 227 A.D.3d 948, 950, 212 N.Y.S.3d 652, quoting Wells Fargo Bank, N.A. v. Lefkowitz, 171 A.D.3d 843, 844, 97 N.Y.S.3d 696).  Here, the defendant established, prima facie, that the mortgage debt was accelerated in August 2010, when the plaintiff's predecessor in interest commenced the 2010 action and elected to call due the entire amount secured by the mortgage (see HSBC Bank USA, N.A. v. Corrales, 224 A.D.3d 816, 818, 206 N.Y.S.3d 330).  Accordingly, the statute of limitations began to run in 2010 and expired prior to the commencement of this action in 2017 (see CPLR 213[4];  Johnson v. Cascade Funding Mtge. Trust 2017–1, 220 A.D.3d 929, 931, 196 N.Y.S.3d 796).

In opposition, the plaintiff failed to raise a triable issue of fact.  FAPA had the effect of nullifying the holding in Freedom Mtge. Corp. v. Engel, 37 N.Y.3d 1, 146 N.Y.S.3d 542, 169 N.E.3d 912 (see Wells Fargo Bank, N.A. v. Khorram, 242 A.D.3d 1146, 245 N.Y.S.3d 156;  HSBC Bank USA, N.A. v. MD A. Islam, 221 A.D.3d 672, 673–674, 197 N.Y.S.3d 599;  GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d 915, 917, 184 N.Y.S.3d 805).  “FAPA amended CPLR 3217, governing the voluntary discontinuance of an action, by adding a new paragraph (e), which provides that ‘[i]n any action on an instrument described under [CPLR 213(4) ], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute’ ” (GMAT Legal Title Trust 2014–1 v. Kator, 213 A.D.3d at 917, 184 N.Y.S.3d 805).  Applying FAPA here, the defendant demonstrated that the debt was accelerated by the commencement of the 2010 action, and the discontinuance of that action did not de-accelerate the mortgage debt or revive or renew the statute of limitations (see 97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 A.D.3d 1038, 225 N.Y.S.3d 386).  The plaintiff's contention that its predecessor in interest lacked standing to commence the 2010 action and that, therefore, the mortgage loan was never properly accelerated in the first instance is improperly raised for the first time on appeal.

The plaintiff's arguments challenging FAPA's retroactive application and constitutionality under the United States Constitution are without merit (see Van Dyke v. U.S. Bank, Natl. Assn., ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06537;  Article 13 LLC v. Ponce De Leon Federal Bank, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06536;  Deutsche Bank Natl. Trust Co. v. Dagrin, 233 A.D.3d 1065, 1067, 226 N.Y.S.3d 75).

The plaintiff's remaining contention is improperly raised for the first time in the its reply brief and, thus, not properly before this Court (see Bank of N.Y. Mellon v. Giammona, 219 A.D.3d 436, 439, 194 N.Y.S.3d 94).

Accordingly, the Supreme Court properly granted the defendant's motion, among other things, for summary judgment dismissing the complaint insofar as asserted against him as time-barred.

BARROS, J.P., CHAMBERS, WAN and QUIRK, JJ., concur.