Deutsche Bank Natl. Trust Co. v. DeGiorgioDeutsche Bank Natl. Trust Co. v. DeGiorgio
| Deutsche Bank Natl. Trust Co. v DeGiorgio |
| Decided on April 4, 2019 |
| Appellate Division, Third 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 and Entered: April 4, 2019
526949
v
NICOLE DeGIORGIO et al., Appellants, et al., Defendants.
Calendar Date: February 11, 2019
Before: Garry, P.J., Lynch, Clark, Devine and Pritzker, JJ.
Law Office of Carl E. Person, New York City (April Forbes of counsel), for appellants.
Sandelands Eyet LLP, Bedminster, New Jersey (Mindy Kallus of counsel), for respondent.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from an order of the Supreme Court (Cahill, J.), entered June 27, 2017 in Ulster County, which, among other things, denied defendant's cross motion for summary judgment.
In 2006, defendants Nicole DeGiorgio and Pasquale DeGiorgio (hereinafter collectively referred to as defendants) executed a promissory note with plaintiff's predecessor in interest secured by a mortgage on real property located in Ulster County. In August 2008, the mortgage was assigned to plaintiff who immediately commenced a foreclosure action, which accelerated the underlying debt, and filed a notice of pendency. Supreme Court subsequently granted a motion for summary judgment by plaintiff and appointed a referee to ascertain the amount that defendants owed to plaintiff. In October 2011, Pasquale DeGiorgio filed a Chapter 13 bankruptcy petition and, in September 2012, Bankruptcy Court dismissed his petition. In May 2014, plaintiff sought leave to discontinue the 2008 foreclosure action and cancel the notice of pendency. In June 2014, Supreme Court discontinued the action, struck Pasquale DeGiorgio's answer, vacated the summary judgment order and discharged the duties of the referee.
In April 2015, plaintiff commenced this second foreclosure action (hereinafter 2015 foreclosure action). Defendants answered plaintiff's complaint and asserted affirmative defenses, including that the action was time-barred and that plaintiff lacked standing. Plaintiff thereafter moved for summary judgment. Defendants opposed the motion and cross-moved for dismissal [*2]of the complaint, which plaintiff opposed [FN1]. Supreme Court granted plaintiff's motion and denied defendants' cross motion. Defendants now appeal, arguing that their cross motion should have been granted.
We turn first to defendants' contention that the 2015 foreclosure action is barred by the statute of limitations. We disagree. "The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage" (Lavin v Elmakiss,
Here, the statute of limitations began to run in August
2008 when plaintiff commenced the first foreclosure action and elected to accelerate the underlying debt; therefore, any other actions on the mortgage, including a second foreclosure action, would had to have been commenced by August 2014 (see CPLR 213 [4]; Bank of Am., N.A. v Luma,
We also reject defendants' contention that plaintiff failed to establish standing. "To establish standing, [a] plaintiff [is] required to demonstrate that, at the time that the action was commenced, [it] was the holder or assignee of the mortgage and the holder or assignee of the underlying note" (McCormack v Maloney,
Here, plaintiff submitted the affidavit of Jerrell Menyweather, a document execution specialist for Nationstar Mortgage LLC, which services the subject mortgage for plaintiff. Menyweather averred that he was personally familiar with the records kept in the ordinary course of business by Nationstar and that, upon reviewing said records, he confirmed that Nationstar, as plaintiff's agent, had physical possession of the original note at the time of his affidavit in December 2015, and the note was previously delivered to plaintiff prior to the commencement of this foreclosure action. Also, plaintiff's 2015 complaint, which contained an attorney verification, provided that "plaintiff is now the sole, true and lawful holder of the said bond/note/loan agreement." Additionally, plaintiff submitted an affidavit of merit by counsel, which provides that, as of the time the action was commenced, she reviewed the pertinent documents, including the note, and that, to the best of her knowledge, information and belief, "plaintiff is currently the creditor entitled to enforce the rights" under the mortgage. Further, the record contains a copy of the consolidated note, which is indorsed in blank demonstrating that plaintiff, as the holder of the note, is entitled to enforce it (see Deutsche Bank Natl. Trust Co. v Monica,
Garry, P.J., Lynch, Clark and Devine, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnote 1: Although defendants cross-moved to dismiss the complaint pursuant to CPLR 3211 (a), defendants had filed an answer and, therefore, their cross motion should have been denominated as one for summary judgment under CPLR 3212 dismissing the complaint on grounds asserted in their answer (see Sager v County of Sullivan,
Footnote 2: In light of the rules regarding stays of an action against a codebtor, plaintiff could not have proceeded independently against defendant Nicole DeGiorgio, despite the fact that she did not file a bankruptcy proceeding (see 11 USC § 1301 [a]). Therefore, the 2015 foreclosure action against her was also timely.