This case involved a mortgagor by the name of Ramirez. Ramirez brought a summary judgment motion seeking a dismissal of the residential foreclosure lawsuit against him. He also sought cancellation and discharge of the mortgage.
CitiMortgage, the mortgage holder, cross-moved for summary judgment. They sought to strike Ramirez’s answer and counterclaims. They also sought an Order of Reference to allow them to sell Ramirez’s home.
Statute of Limitations
Ramirez had defaulted in making payments on his note and mortgage. An initial foreclosure lawsuit was commenced in 2010. However, it was dismissed by the court as being abandoned. CitiMortgage took no action to appeal the motion dismissing the initial 2010 lawsuit.
The Second Foreclosure Lawsuit
In 2017 CitiMortgage filed a new foreclosure lawsuit against Ramirez. Ramirez argued this lawsuit should be dismissed because the 6 year statute of limitations to bring a foreclosure action had expired before the commencement of this lawsuit. CitiMortgage claimed they unequivocally revoked the acceleration of the mortgage.
The Judge’s Decision
Justice Vincent Versad sitting in Supreme Court part in Schenectady County ruled CitiMortgage had failed to meet a five prong test that would reset the statute of limitations clock on Ramirez’s mortgage. Judge Versad found Ramirez suffered substantial prejudice while relying on the acceleration of the mortgage. The Judge found he would be further prejudiced if CitiMortgage was permitted to benefit from its own neglect in timely pursuing its claim. Ramirez’s motion was granted, the foreclosure lawsuit was dismissed and the mortgage was discharged.
Elliot S. Schillsel is the managing partner of Schlissel DeCorpo LLP. He has been representing clients with regard to foreclosure defense cases for more than 30 years. He can be reached for a free consultation at: 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.