Facts
- Plaintiff Lawrence Roland obtained a mortgage in 2007 to finance real property located at 220-222 Gardenia Drive N, Salem, Oregon. [lines="33-34"]
- A previous lender failed to credit a payment made by Plaintiff in 2009, leading to wrongful late fees and serious default on the mortgage. [lines="36-42"]
- Plaintiff's mortgage was accelerated around December 1, 2012, after which multiple foreclosure attempts occurred. [lines="44-49"]
- Defendants, including CIT Bank and First-Citizens Bank, became the current lenders due to various conveyances. [lines="52-55"]
- Plaintiff claims that his rights to quiet title and declaratory relief are supported by Oregon law. [lines="85-88"]
Issues
- Did the statute of limitations begin to run at the mortgage's acceleration, allowing Plaintiff’s claims for quiet title and declaratory relief? [lines="27-28"]
- Did Plaintiff sufficiently state a claim under the Unfair Debt Practice Act as per ORS 646.639? [lines="166-167"]
Holdings
- The court held that the statute of limitations began when the mortgage was accelerated, allowing Plaintiff's claims for quiet title and declaratory relief to proceed. [lines="28-29"]
- The court found Plaintiff stated a plausible claim under ORS 646.639, denying Defendants' motion to dismiss this claim. [lines="30-31"]
OPINION
| Deutsche Bank Natl. Trust Co. v Bonilla |
| 2024 NY Slip Op 04243 |
| Decided on August 21, 2024 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 21, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
CHERYL E. CHAMBERS
BARRY E. WARHIT
JANICE A. TAYLOR, JJ.
2020-08359
(Index No. 10186/11)
v
Joaquin Bonilla, et al., appellants, et al., defendants.
Joaquin Bonilla, Queens Village, NY, appellant pro se.
Hinshaw & Culbertson LLP, New York, NY (Jason J. Oliveri and Schuyler B. Kraus of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Joaquin Bonilla, Jose DeJesus, and Francisco Bernal separately appeal from an order of the Supreme Court, Queens County (Mojgan C. Lancman, J.), entered October 7, 2020. The order, insofar as appealed from by the defendant Joaquin Bonilla, denied that branch of his cross-motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against him. The appeals by the defendants Jose DeJesus and Francisco Bernal were deemed dismissed pursuant to 22 NYCRR 1250.10(a).
DECISION & ORDER
Motion by the plaintiff to dismiss the appeals on the ground that the dismissal of prior appeals for failure to timely perfect precludes consideration of the issues to be raised on the appeals pursuant to Bray v Cox (38 NY2d 350), and for an award of costs. By decision and order on motion of this Court dated May 14, 2021, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal by the defendant Joaquin Bonilla, it is
ORDERED that the branch of the motion which is to dismiss the appeal by the defendant Joaquin Bonilla on the ground that the dismissal of a prior appeal from an order dated June 25, 2018, for failure to timely perfect precludes consideration of the issues to be raised on the appeal pursuant to Bray v Cox (38 NY2d 350) is granted, and the motion is otherwise denied; and it is further,
ORDERED that the appeal by the defendant Joaquin Bonilla is dismissed, with costs.
For the reasons stated in our decision and order on a related appeal (see Deutsche Bank Natl. Trust Co. v Bonilla, ___ AD3d ___ [Appellate Division Docket No. 2020-00309; decided herewith]), we decline to exercise our discretion to review the contentions of the defendant Joaquin Bonilla, which could have been raised on his prior appeal from an order dated June 25, 2018, which appeal was dismissed for failure to timely perfect.
BRATHWAITE NELSON, J.P., CHAMBERS, WARHIT and TAYLOR, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court