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Adam Leitman Bailey, P.C. Defeats Borrower’s Motion to Dismiss and Wins Summary Judgment in favor of Lender in Highly Technical and Contested Foreclosure Proceeding


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In VW Bedstuy LLC v. Tavares, et al., a highly contested foreclosure proceeding, Adam Leitman Bailey, P.C. defeated the Borrower’s motion to dismiss and won its motion for summary judgment and an order of reference in favor of the Plaintiff Lender, in defeating the Borrower’s claim that the action was time barred under the applicable statute of limitations.

The subject loan was accelerated on September 17, 2007 upon the commencement of a prior action brought by the originating lender to foreclose the note and mortgage, which action was subsequently dismissed.

On June 7, 2013, the Plaintiff Lender commenced a second action to foreclose the note and mortgage, which second action was dismissed for a failure to comply with the conditions precedent required by RPAPL §§ 1304 and 1306 (the “2013 Action”).

The instant action was commenced by Adam Leitman Bailey, P.C. on behalf of the Lender on September 25, 2015, and service upon all defendants was completed by October 24, 2015.

The Borrower moved to dismiss the action, arguing that the statute of limitations ran, as the loan was accelerated on September 17, 2007, which was more than six years prior to the instant action being commenced.  The Borrower also move for summary judgment on one of his asserted counterclaims, which was to cancel and discharge the subject mortgage pursuant to RPAPL § 1501(4) on the ground that the statute of limitations ran.

Adam Leitman Bailey, P.C. defeated the Borrower’s claim that the statute of limitations ran by successfully arguing that the action must be deemed as being timely commenced, pursuant to CPLR § 205(a), since: (i) the 2013 Action was timely commenced within six years of the loan being accelerated, (ii) the 2013 Action was not terminated by voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, and (iii) the instant action was commenced within six months of the 2013 Action being dismissed, with all defendants being served within that six month period.

In addition to opposing the Borrower’s motion to dismiss and for summary judgment, Adam Leitman Bailey, P.C. successfully cross-moved for summary judgment and an order of reference in favor of the Lender.

In support of the Lender’s cross-motion, Adam Leitman Bailey, P.C.  thoroughly addressed and disproved each of the Borrowers’ twenty-one pleaded affirmative defenses and six counterclaims, leaving the Court with no legal choice, but to find for the Lender in denying the Borrower’s motion in its entirety, and granting the Lender’s cross-motion in its entirety.

Jackie Halpern Weinstein, Esq.  and Jessie D. Bonaros, Esq. of the Foreclosure Group at Adam Leitman Bailey, P.C. won this motion for the Lender.        

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Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS