Wilmington Trust, National Association v Pacific Street Services, Inc., et al.; 55 Chester, LLC
Attorneys and Parties
Brief Summary
Mortgage foreclosure; statute of limitations; effect of Foreclosure Abuse Prevention Act (FAPA) on renewal motions and timeliness.
Denied plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale; granted 55 Chester, LLC leave to renew based on FAPA and, upon renewal, denied plaintiff’s prior summary judgment motion and dismissed the complaint as time-barred.
The May 13, 2024 order granting renewal, vacating the July 1, 2022 summary judgment/order of reference, denying plaintiff’s prior motion, and awarding defendant summary judgment was reversed; denial of plaintiff’s motion to confirm and for judgment of foreclosure and sale was overturned.
FAPA, including CPLR 205-a [provides that a plaintiff is not entitled to the benefit of the savings provision of CPLR 205(a) for purposes of commencing a foreclosure action after the six-year limitations period has run], did not change the prior determination because the action was timely commenced within CPLR 213(4) [six-year statute of limitations for mortgage foreclosure actions]. The operative date is filing, not service, under CPLR 203(c) and 304(a) [an action is commenced by filing the summons and complaint]. The referee’s computation was properly supported by admissible business records under CPLR 4518(a) [business records exception to hearsay].
Background
After the Supreme Court’s July 1, 2022 order granted Wilmington Trust summary judgment against 55 Chester, LLC, struck defenses and counterclaims, and issued an order of reference, the referee computed the amount due. Wilmington Trust moved to confirm the referee’s report and for a judgment of foreclosure and sale. 55 Chester opposed and cross-moved to renew, arguing that the later-enacted Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]), including CPLR 205-a, rendered the action time-barred.
Lower Court Decision
By order dated May 13, 2024, the Supreme Court (Kings County) denied plaintiff’s motion to confirm and for a judgment of foreclosure and sale; granted 55 Chester, LLC leave to renew its opposition to plaintiff’s prior summary judgment motion based on FAPA; and, upon renewal, vacated the July 1, 2022 order’s grants of summary judgment, striking of defenses/counterclaims, and order of reference, and instead dismissed the complaint as time-barred.
Appellate Division Reversal
Reversed in full. The Appellate Division held FAPA and CPLR 205-a did not affect the July 2022 determination because the foreclosure action was timely when commenced under CPLR 213(4), making the savings statutes (CPLR 205(a) and 205-a) inapplicable. It reiterated that commencement occurs upon filing under CPLR 203(c) and 304(a). The court denied the defendant’s motion for leave to renew under CPLR 2221(e)(2) [motion to renew must be based on new facts or change in law that would change the prior determination], granted plaintiff’s motion to confirm the referee’s report, and granted a judgment of foreclosure and sale. The July 1, 2022 order granting summary judgment, striking defenses/counterclaims, and issuing an order of reference was reinstated.
Legal Significance
Clarifies that FAPA’s CPLR 205-a does not retroactively convert a timely filed foreclosure into an untimely one and cannot support renewal where the prior ruling did not rely on the savings statute. Reinforces that the statute of limitations in foreclosure runs to commencement by filing (not service) and that properly supported servicer affidavits can lay a business-records foundation for referee computations under CPLR 4518(a).
If a foreclosure action is timely commenced within CPLR 213(4), FAPA’s CPLR 205-a is irrelevant; a change in law does not warrant renewal unless it would alter the prior outcome. Referee reports supported by admissible business records will be confirmed, paving the way for judgment of foreclosure and sale.