(The following information is not intended for legal advice and is for research informational purposes only).
The Bank of New York Mellon v. Dieudonne is a very important mortgage foreclosure case law review topic.
This case is relevant because it can be used as a foreclosure defense as case law to explain why a lender is untimely to bring a foreclosure action against a borrower. “Just knowing this important information can result in a foreclosure action being dismissed with prejudice!”
Forcing the mortgage lender to never be able to foreclose on the homeowner. This can also result in the borrower filing a Quiet Title Action to obtain the property Free and Clear and without having to make mortgage payments now or in the future.
Even if a mortgage is in default there are certain rules and regulations that allow a mortgage lender to foreclose on a property. If a lender is outside of the required statute of limitation this case law can be raised as a foreclosure defense in an Answer with proper statute violations.
Bank of New York Mellon v. Dieudonne
CPLR 213(4) defines the statute of limitations timeline for mortgages. This is what determines when or if a lender can bring a foreclosure action against a borrower.
There are is a statute of limitations in foreclosure actions. Many times lenders are untimely and the borrower is unaware or lacks the knowledge to detect if the lender is untimely. Even foreclosure defense attorneys who omit to conduct discovery research and miss this important defense. Putting the borrower in danger by not finding out this important information to raise in the Answer to dispute foreclosure.
New York Courts provide an overview, statutes of limitations are laws that say how long, after certain events, a case may be started based on those events.
*It might be interesting to note as the statute of limitations applies to fraud CPLR213(8) is from the date of discovery. So if you discovered fraud today, you will have six years to bring a lawsuit against the other party for fraud starting from the date it was discovered. This is cleared up by the NY Bar, click here.
Bank of New York Mellon v. Dieudonne, supra 2019 WL 1141973, at *2 (citations omitted). A borrower must be provided with notice of the lender’s decision to exercise the option to accelerate. (Id.) (citations omitted). Once a mortgage is accelerated, the statute of limitations begins to run. (Id.) (citations omitted).
The lender’s foreclosure case against the borrower/homeowner was dismissed and determined to be time-barred.
This case law can prove why research and discovery are so important in each case and no one foreclosure defense is a cookiecutter solution (copycat). Typically, the case-law of Nationstar Mtge., LLC v. MacPherson, 56 Misc. 3d 339, 350, 54 N.Y.S.3d 825 (N.Y. Sup. Ct. Suffolk Cty. Apr. 3, 2017), was deemed to support a Defendant’s right to de-accelerate was extinguished under the terms of the mortgage, for example upon entry of Judgment of Foreclosure and Sale.
However, the Second Department explicitly rejected MacPherson. Agreeing with the lower court the acceleration of the mortgage was established and the lender was time-barred. (Review Opinion and Order, Click Here)
A borrower facing foreclosure should always seek to also determine if the lender moving to accelerate the mortgage, is actually the proper party to enforce the mortgage note to foreclose on the property!
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