Deutsche Bank National Trust Co. v. Mayer
Attorneys and Parties
Brief Summary
Mortgage foreclosure statute of limitations and use of the Civil Practice Law and Rules (CPLR) 205-a [savings statute for mortgage instruments replacing CPLR 205(a) allowing refiling within six months after termination] under the Foreclosure Abuse Prevention Act (FAPA).
The action was time-barred under CPLR 213(4) [six-year statute of limitations for mortgage foreclosure] and dismissed upon searching the record.
The finding that the 2019 foreclosure was untimely and the resulting dismissal; the denial of plaintiff’s motion for summary judgment and an order of reference on statute of limitations grounds.
Dismissal of the prior foreclosure for failure to comply with Real Property Actions and Proceedings Law (RPAPL) 1304 [pre-foreclosure notice requirement] is not a final judgment on the merits, so the Plaintiff could invoke CPLR 205-a [savings statute for mortgage instruments replacing CPLR 205(a) allowing refiling within six months after termination]. Termination occurred when appeals as of right were exhausted (October 15, 2019), and the new action (filed November 4, 2019; service completed November 19, 2019) was within six months, rendering it timely.
Background
In 2007, Charles Mayer executed a $565,250 note to GE Money Bank secured by a mortgage signed by Mayer and Maria Etim. The Plaintiff, as GE’s successor, accelerated the debt by filing a foreclosure on July 15, 2013. After trial, the Supreme Court dismissed that action on January 11, 2019 for failure to comply with RPAPL 1304. Plaintiff noticed an appeal but failed to perfect; the time to perfect was extended to October 15, 2019, when the appeal was deemed dismissed. Plaintiff commenced a new foreclosure on November 4, 2019 and personally served Etim on November 19, 2019. Etim answered asserting the statute of limitations.
Lower Court Decision
The Supreme Court, Westchester County, denied Plaintiff’s motion for summary judgment and an order of reference and, upon searching the record, granted Etim summary judgment dismissing the complaint as time-barred under CPLR 213(4).
Appellate Division Reversal
Reversed. The Appellate Division held the action timely under CPLR 205-a because the prior dismissal for RPAPL 1304 noncompliance was not on the merits, termination occurred when appeals as of right were exhausted (October 15, 2019), and the new action and service (November 4 and November 19, 2019) fell within six months of termination. The matter was remitted for a determination on the merits of Plaintiff’s motion for summary judgment and an order of reference.
Legal Significance
Clarifies that under the Foreclosure Abuse Prevention Act (FAPA) and CPLR 205-a, lenders may refile mortgage foreclosure actions within six months of termination of a prior timely action not resolved on the merits, even if the six-year CPLR 213(4) period has otherwise expired. Dismissals for RPAPL 1304 noncompliance are not adjudications on the merits, and termination is measured by exhaustion of appeals as of right.
In New York mortgage foreclosures, CPLR 205-a preserves timeliness where a prior timely action was dismissed for RPAPL 1304 defects: lenders have six months from termination (upon exhaustion of appeals as of right) to recommence and complete service, and such recommenced actions are not time-barred by CPLR 213(4).