Adam Leitman Bailey, P.C. Successfully Establishes that Plaintiff Lacked Standing in A Prior Foreclosure Action in Order to Defeat Defendant’s Motion to Dismiss for Statute of Limitations in a Pending Foreclosure Action
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ————————————————————~——-)( U.S. ROF IV LEGAL TITLE TRUST 2015-1, BY u.s. BANK NATIONAL ASSOCIATION, AS LEFAL TITLE TRUSTEE, Plaintiff( s), -againstMD MAMT AZUDDIN MAJUMDER AKA MAJUMDER MD MAMTAZUDDIN, 2166 DEAN LLC, PEOPLE OF THE STATE OF NEW YORK, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TA)(ATION AND FINANCE, TERESA MENICHINO, CITY OF NEW YORK DEPARMENT OF HOUSING, PRESERVATION & DEVELOPMENT, NEW YORK CITY ENVIORNMENT AL CONTROL BOARD, DAVIS VINCENT, JOHN DOE (Those unknown tenants, occupants, persons or corporations or their heirs, distributes, executors, administrators trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises, Defendant( s). ———————————-~–~——————————)( PRESENT: HON. ULYSSES B. LEVERETT, J.S.C. Index No. 708768/2018 Sequence NO.2 DECISION/ORDER Notice of Motion-Affirmation of Good Faith-Affirmation-Exhibits Affirmation in Opposition-Affidavit in Opposition-Exhibits Reply Affirmation~Exhibits Papers Numbered EF 69-85 EF 90-100 EF 102-104
Upon the foregoing papers and after oral argument on March 10, 2022, it is ordered that Defendant’s motion to dismiss the foreclosure action is determined as follows: Defendant 2166 Dean LLC brings this motion to dismiss the subject foreclosure action, pursuant to CPLR ~3211(a)(5) by reason that this action is allegedly barred by the applicable Statute of Limitations. Plaintiff U.S. ROF IV Legal Title Trust 2015-1, by U.S. Bank National Association, as legal title trustee, in opposition to defendant’s motion, asserts that the plaintiffwas not the holder of the original promissory note at the time the prior action was commenced and did not have authority to accelerate the Mortgage to trigger the statute of limitation. In 2008, MD Mamtazuddin Majumder a/k/a Majumder MD Mamtazuddin executed and delivered a note dated September 3,2008 in favor of MetLife Home Loans, a division of MetLife Bank, N.A. (MLHL) in the principal amount of $454,500.00, plus interest. As security for the note Majumder gave a mortgage dated September 3,2008 to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for MetLife on the real property known as 189-32 113th Road, Saint Albans, New York (the subject property). The mortgage, subject to the loan of September 3, 2008 was assigned on September 28, 2009 by MERS as assignor to MLHL as assignee. Pursuant toMLHL, successor MetLife Home Loans LLC, the MLHL originated loan was sold by MLHL to the Federal National Mortgage Association alkla (Fannie Mae) and the note was physically delivered to Fannie Mae on November 21,2008. On October 9, 2009, MetLife Home Loans (.MLHL) commenced a foreclosure action against Majumder entitled, MetLife Home Loansv. Majumder (Sup. Ct. Queens County, Index No. 27268/2009), which action was dismissed . in 2015 without prejudice prior to the filing of a note of issue. Majumder subsequently conveyed title to the subject property to 2166 Dean by deed dated November 11, 2012. Plaintiff commenced this foreclosure action on June 6, 2018. DISCUSSION The statute of limitations for an action to foreclose on an accelerated mortgage debt is six years. See CPLR S213[4]. In Mejias v. Wells Fargo NA., 186 A.D.3d 472 (2nd Dep’t 2020) the Appellate Court address the necessity of standing to bring a foreclosure held that “an acceleration of an mortgage debt, by either written notice or commencement of an action, is only valid if the party making acceleration had standing at the time to do so.” In Aurora Loan Services, LLC. v. Taylor, 25 N.Y.3d 355 (2015), the New York Court of Appeals set forth requirements of standing an held “it is not necessary to have possession of the mortgage at the time the action is commenced. This conclusion follows from the fact that the note, and not the mortgage, is the dispositive instrument that conveys standing to foreclosure under New York law … Once a note is transferred, however “the mortgage passes as an incident to the note”.” Bank of NY. v. Silverberg, 86 A.D.3d 274 (2nd Dep’t 2011). The Court finds that Fannie Mae obtained physical possession of the original note on November 21,2008 prior to MLHL commencement of the October 2009 foreclosure action. MLHL did not have possession of the note at the commencement of the action. Its receipt of the assigned mortgage on September 28, 209 did not vest MLHL with standing to commence the foreclosure action, accelerate the mortgage debts and trigger the statute of limitation. Accordingly, defendant 2116 Dean LLC’s motion to dismiss plaintiff foreclosure action based upon the expiration of the statute of limitation pursuant to CPLR S3211(a)(5) is denied. This is the decision and order of this Court.
708768_2018_U_S_ROF_IV_LEGAL_TITL_v_U_S_ROF_IV_LEGAL_TITL_ORDER___DISMISSAL_107 (1)