Justice Thomas Whelan


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Defendants borrowed $697,000 from plaintiff’s predecessor-in-intreest, executing a promissory note and mortgage securing the subject real property, but failed to pay monthly installments due, and a foreclosure action was commenced. They filed a Chapter 13 bankruptcy petition, surrendering their interest in the property in full satisfaction of plaintiff’s secured claim. An order confirming the plan was signed and plaintiff was granted relief from the bankruptcy stay. Plaintiff moved for appointment of a referee, but was denied, then moved to discontinue the action, and a sua sponte order was issued dismissing the complaint. Plaintiff commenced this action seeking summary judgment and dismissal of defendants’ affirmative defenses and counterclaims. The court found as an order confirming the Chapter 13 plan was signed, thus, becoming final and binding on defendants, they were barred from challenging plaintiff’s secured lien under res judicata. Also, as plaintiff actively sought to voluntarily discontinue the first action, the court found its intention to discontinue, coupled with the resulting sua sponte order, was an affirmative act of revocation. Hence, it ruled the statute of limitations did not run, and plaintiff’s current action was timely, granting it’s motion.