HSBC USA v. Elizabeth Mathew, respondent, et al., defendants. (2026)

Argued—December 15, 2025

DECISION & ORDER

C/

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated September 6, 2023.  The order denied the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Elizabeth Mathew and for an order of reference, and granted that branch of that defendant's cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her as time-barred.

ORDERED that the order is affirmed, with costs.

In July 2007, First United Mortgage Banking Corp. (hereinafter First United) commenced an action against the defendant Elizabeth Mathew (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn (hereinafter the 2007 action).  The complaint alleged that the defendant had defaulted under the terms of the note and mortgage by failing to tender monthly payments due on December 1, 2006, and thereafter.  The 2007 action was voluntarily discontinued.

In March 2017, the plaintiff commenced this action against the defendant, among others, to foreclose the same mortgage.  The complaint alleged that the defendant had defaulted under the terms of the note and mortgage by failing to tender monthly payments due on May 1, 2011, and thereafter.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant opposed the motion and cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her as time-barred.  The plaintiff opposed the defendant's cross-motion.  In reply, the defendant raised the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821, § 8 [eff Dec. 30, 2022] ), and the parties submitted supplemental briefing on the applicability of the statute.  In an order dated September 6, 2023, the Supreme Court denied the plaintiff's motion and granted that branch of the defendant's cross-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 NY3d 250, 261;  U.S. Bank N.A. v. Medianik, 223 AD3d 935, 937).  “[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” (Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d 899, 900 [internal quotation marks omitted];  see U.S. Bank N.A. v. Medianik, 223 AD3d at 937).  “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 AD3d 915, 916;  see U.S. Bank N.A. v. Medianik, 223 AD3d at 937).

Here, the defendant demonstrated, prima facie, that the six-year statute of limitations began to run in July 2007 when First United commenced the 2007 action and elected in the complaint to call due the entire amount secured by the mortgage (see Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 901;  HSBC Bank USA, N.A. v. Corrales, 224 AD3d 816, 818).  The defendant further demonstrated that this action was commenced in March 2017, more than six years later (see CPLR 213[4];  Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 901).  “The defendant thus established, prima facie, that this action was untimely” (Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 901;  see U.S. Bank Trust, N.A. v. Reizes, 222 AD3d 907, 910).

The plaintiff's contention that the mortgage debt was not accelerated by the commencement of the 2007 action because First United lacked standing to commence that action is without merit (see Article 13 LLC v. Ponce De Leon Fed. Bank, _ NY3d _, _, 2025 N.Y. Slip Op 06536, *4;  Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 901).  FAPA amended CPLR 213(4) “ ‘by adding, among other things, paragraph (a), which provides that “[i]n any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” ’ ” (Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d at 901, quoting GMAT Legal Title Trust 2014–1 v Kator, 213 AD3d at 916–917).

Here, as the 2007 action was not dismissed based on an expressed judicial determination that the mortgage debt was not validly accelerated, the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2007 action based on lack of standing (see Article 13 LLC v. Ponce De Leon Fed. Bank, _ NY3d at _, 2025 N.Y. Slip Op 06536, *4).

The plaintiff's arguments challenging FAPA's retroactive application and constitutionality under the United States and New York State Constitutions are without merit (see

Van Dyke v. U.S. Bank, Natl. Assn., _ NY3d _, 2025 N.Y. Slip Op 06537;  Article 13 LLC v. Ponce De Leon Fed. Bank, _ NY3d at _, 2025 N.Y. Slip Op 06536;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065;  97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038).

Accordingly, the Supreme Court properly denied the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, and properly granted that branch of the defendant's cross-motion which was for summary judgment dismissing the complaint insofar as asserted against her as time-barred.

The plaintiff's remaining contention need not be reached in light of our determination.

DILLON, J.P., BRATHWAITE NELSON, VOUTSINAS and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court