Adam Leitman Bailey, P.C. Defeats Statute of Limitations Defense in Borrowers’ Motion to Dismiss
In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLLP f/k/a MCM Capital Partners, LLC, its Trustee v. Omene, et al., the borrowers moved to dismiss on the alleged ground that the statute of limitations to foreclose expired.
In support of their dismissal motion, the borrowers alleged that the mortgage debt was accelerated upon commencement of a prior action brought to foreclose the subject mortgage on September 24, 2009 (the “2009 Foreclosure Action”) and that the instant foreclosure action was, therefore, untimely, as it was commenced more than six years after commencement of the 2009 Foreclosure Action.
The 2009 Foreclosure Action was commenced by the plaintiff’s predecessor, JPMorgan, who, through counsel, voluntarily discontinued the 2009 Foreclosure Action “without prejudice to recommencement” before the statute of limitations expired.
In opposition to the borrowers’ dismissal motion, Adam Leitman Bailey, P.C. used Second Department case law on the effect of an action discontinuance to argue that any election to accelerate was timely revoked by virtue of JPMorgan’s voluntary discontinuance of the 2009 Foreclosure Action, since, when an action is discontinued, it is as if it had never been, and everything done in the action is annulled.
In an order dated November 15, 2017, Judge Thomas A. Adams, J.S.C. accepted and adopted this argument and denied the borrowers’ motion to dismiss, holding that the voluntary discontinuance of the prior action essentially revoked any acceleration.
Jackie Halpern Weinstein, Esq. and another attorney of the Foreclosure Group at Adam Leitman Bailey, P.C. won this “hot topic” motion for both the foreclosing plaintiff and for all lenders and note owners plagued with defeating statute of limitations defenses to foreclosure actions throughout the state.