NATIONSTAR MORTGAGE LLC v. FERNANDEZ (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated July 19, 2024.  The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Judeson Fernandez and for an order of reference and granted that defendant's cross-motion for leave to renew his prior motion for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage, which had been denied in an order of the same court (Pam Jackman Brown, J.) dated April 1, 2022, and, upon renewal, in effect, vacated the order dated April 1, 2022, and thereupon granted the defendant's prior motion.

ORDERED that the order dated July 19, 2024, is affirmed insofar as appealed from, with costs.

In July 2007, Chase Home Finance, LLC (hereinafter Chase), commenced an action (hereinafter the 2007 action) against, among others, the defendant Judeson Fernandez (hereinafter the defendant) to foreclose a mortgage on certain real property located in Queens.  By order dated May 16, 2013, the Supreme Court, inter alia, directed dismissal of the 2007 action as abandoned pursuant to CPLR 3215(c).

In March 2020, the plaintiff commenced this action against, among others, the defendant to foreclose the mortgage.  The defendant interposed an answer asserting, among other things, an affirmative defense that the action was time-barred and a counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.

Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The plaintiff opposed the motion.  In an order dated April 1, 2022, the Supreme Court denied the defendant's motion.

In October 2023, 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 cross-moved for leave to renew his prior motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage based upon a change in the law that occurred with the enactment of the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022] ).

In an order dated July 19, 2024, the Supreme Court, among other things, granted leave to renew and, upon renewal, in effect, vacated the order dated April 1, 2022, and thereupon granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage, and denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The plaintiff appeals.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2] ).

“An action to foreclose a mortgage is governed by a six-year statute of limitations” (Green Tree Servicing, LLC v. Weiss, 222 AD3d 626, 627;  see CPLR 213[4];  Lubonty v. U.S. Bank N.A., 34 NY3d 250, 261).  “[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” (Green Tree Servicing, LLC v. Weiss, 222 AD3d at 627 [internal quotation marks omitted];  see BHMPW Funding, LLC v. Lloyd–Lewis, 194 AD3d 780, 782).  “Acceleration occurs, inter alia, by the commencement of a foreclosure action wherein the plaintiff 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 Citimortgage, Inc. v. Gunn, 234 AD3d 922, 923).

“[FAPA] replaced the savings provision of CPLR 205(a) with CPLR 205–a in actions, like this one, upon instruments described in CPLR 213(4)” (Deutsche Bank Natl. Trust Co. v Contact Holdings Corp., 246 AD3d 700, 702).  “ ‘FAPA specifically defines a dismissal pursuant to CPLR 3215 as a form of neglect that precludes a plaintiff from taking advantage of the six-month savings provision of CPLR 205(a)’ ” (Nationstar Mtge., LLC v. Oliveri, 243 AD3d 579, 580, quoting Nationstar Mtge., LLC v. Kahana, 240 AD3d 793, 796;  see CPLR 205–a[a] ).

Here, the defendant demonstrated a change in the law based upon the enactment of FAPA subsequent to the determination of his prior motion, among other things, for summary judgment dismissing the complaint insofar as asserted against him (see Deutsche Bank Natl. Trust Co. v Nelson, 242 AD3d 702, 703).  Accordingly, the Supreme Court properly granted that branch of the defendant's cross-motion which was for leave to renew.

Furthermore, the Supreme Court properly, upon renewal, granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage.  The defendant established, prima facie, that the six-year statute of limitations began to run on the entire debt in July 2007, when the plaintiff's predecessor in interest commenced the 2007 action and elected to call due the entire amount secured by the mortgage (see HSBC Bank USA, N.A. v. Corrales, 224 AD3d 816, 818).  The defendant also demonstrated that this action was not commenced until March 2020, more than six years later (see CPLR 213[4];  U.S. Bank N.A. v. Simon, 216 AD3d 1041, 1042–1043).  Moreover, since the 2007 action was dismissed pursuant to CPLR 3215(c), the plaintiff is not entitled to the benefit of the six-months savings provision of CPLR 205–a (see Nationstar Mtge., LLC v. Oliveri, 243 AD3d at 580).  Thus, the defendant established, prima facie, that this action was untimely (see Deutsche Bank Natl. Trust Co. v DiGiorgio, 237 AD3d 899, 900–901).  In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.

Further, there is no merit to the plaintiff's contention that FAPA does not apply retroactively (see Van Dyke v. U.S. Bank, N.A., 45 NY3d 461, 474;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d 441, 452–453).  The plaintiff's challenges to the constitutionality of the retroactive application of FAPA are also without merit (see Van Dyke v. U.S. Bank, N.A., 45 NY3d at 474–478;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d at 454–459;  U.S. Bank N.A. v. Singh, 247 AD3d 816, 819;  FV–1, Inc. v. Palaguachi, 234 AD3d 818, 822;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1069–1071;  97 Lyman Ave., LLC v. MTGLQ Invs., L.P., 233 AD3d 1038, 1043).

Accordingly, the Supreme Court properly, upon renewal, granted the defendant's prior motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred and on his counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.

IANNACCI, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.