DECISION & ORDER Plaintiff U.S. Bank National Association seeks an order confirming the Referee’s report and granting a Judgment of Foreclosure and Sale. Defendant Anthony DiDato opposes the motion and has filed a cross-motion seeking dismissal of the action and related relief based on his allegation that the statute of limitations has expired. The Court read and considered NYSCEF documents numbered 209-259 and 262-264. Background The instant residential foreclosure action involves real property located at 18 Pray Lane, Lagrangeville, New York. On February 7, 2005, Defendant Anthony Dean DiDato a/k/a Anthony Didato a/k/a Anthony D. Didato (sometimes referred to herein as “Borrower”) executed a Note in favor of Mortgage Electronic Registration Systems, Inc., as nominee for First National Bank of Arizona, to secure payment of the principal sum of $650,000.00. The mortgage securing the Note was also signed and was recorded with the Dutchess County Clerk on February 22, 2005 and re-recorded August 24, 2005. Subsequently, the loan was modified pursuant to a Loan Modification Agreement dated March 31, 2010, which created a single lien in the amount of $704,452.04. On August 22, 2011, Borrower filed a Chapter 7 petition and a “Debtor Discharge” was filed on November 23, 2011. On October 24, 2013, a foreclosure action was commenced against the Borrower. On May 29, 2018, the loan was modified pursuant to a Loan Modification Agreement executed by Borrower and the lender, which created a new lien in the amount of $1,209,582.95. The 2013 foreclosure action was discontinued on July 6, 2018. The instant action was commenced by the filing the summons and complaint in the Dutchess County Clerk’s Office on February 12, 2019. By Decision and Order dated June 28, 2021, this Court granted Plaintiff’s motion for summary judgment and for an Order of Reference. The Court signed an Order Appointing Substitute Referee on November 5, 2021. A proposed Referee’s Oath and Report of Amount Due with Notice of Computation were sent to the substitute Referee and Defendant DiDato. Subsequently, Mr. DiDato served an objection to the computation. On February 18, 2022, Plaintiff served a Reply to Objections. Defendant filed an Objection to the Reply on March 31, 2022. Plaintiff filed a Notice of Rejection of the Objection to the Reply and also filed and served a Response to the Defendant’s second objection on April 1, 2022. On May 4, 2022, Plaintiff received a third objection from the Defendant. On June 8, 2022, Plaintiff filed a Reply to Objections and a response to Referee Questions. On September 20, 2022, the Referee executed an Oath and Report of Amount Due. Thereafter, Plaintiff filed a motion for Judgment of Foreclosure and Sale to confirm the Referee Report and, on November 20, 2022, the Defendant filed a notice of cross-motion seeking dismissal of the action. By Decision and Order dated December 13, 2022, this Court granted the Defendant’s motion to dismiss after concluding that the inclusion of additional notices with the RPAPL notice to the Defendant were in violation of RPAPL 1304 pursuant to Bank of America, N.A. v. Kessler, 202 AD3d 10 [2d Dept. 2022]. On April 12, 2023, Plaintiff filed a motion to renew and vacate the dismissal. By Decision and Order dated May 19, 2023, based upon the reversal of Kessler by the Court of Appeals, the Court granted Plaintiff’s motion to renew and upon renewal, denied Defendant’s motion to dismiss. The order directed Plaintiff to submit a Judgment of Foreclosure and Sale. Discussion The Plaintiff’s motion contains the Referee’s Report and seeks to confirm the report as well as a Judgment of Foreclosure and Sale. Defendant opposes the motion for the reasons set forth in his cross-motion. In his cross-motion, Defendant seeks vacatur, pursuant to CPLR 5015(a), of this Court’s summary judgment Decision and Order. Defendant asks the Court to dismiss this action based upon the Foreclosure Abuse Prevention Act (“FAPA”) and in the interests of justice. According to the Defendant, this 2019 foreclosure proceeding is time-barred as it was commenced after the statute of limitations had expired. He maintains that his cross-motion is timely in “light of” the “purpose and intent of FAPA.” The entirety of Defendant’s motion is based upon his assertion that his mortgage debt was accelerated no later than in 2011, when he filed a Chapter 7 bankruptcy petition. He alleges that neither the 2013 mortgage foreclosure proceeding nor the 2018 loan modification reset the statute of limitations clock. Defendant concludes that the limitations period expired in late 2017 and the continued prosecution of this matter is prohibited by FAPA. However, as discussed below, as the Defendant’s premise is flawed, the motion must be denied. First, though, the Court will address the procedural nature of this motion. Defendant invites this Court to vacate the summary judgment order and dismiss the case pursuant to CPLR 5015(a). Preliminarily, it bears mention that none of the stated provisions of CPLR 5015(a) are applicable to this case in that the Defendant does not allege, for example, newly discovered evidence, fraud or lack of jurisdiction. Rather, Defendant asks that the Court vacate the summary judgment order in the interests of substantial justice based upon the spirit of FAPA. The Court declines to do so. Counsel for Defendant has not raised the statute of limitations in any of his prior submissions to this Court, including the defense opposition to the summary judgment motion, the cross-motion and opposition to the first motion for a judgment of foreclosure and the motion to renew. Indeed, in the June 28, 2021 decision on summary judgment, the Court found that “[o]ther than asserting a general counterclaim for fraud, Defendant has abandoned all other denominated defenses and counterclaims asserted in his answer.” Notably, the facts upon which he bases his argument are not new and have been known to the parties since the 2019 inception of this lawsuit. In a similar vein, the relevant law as to the Defendant’s argument regarding acceleration of debt has not been changed by the enactment of FAPA and the cases relied upon by the Defendant to support the foundation of his claims are more than 30 years old. Further, and importantly, Defendant does not even argue that the “abuses” and “unlawful litigation” tactics referred to by New York State Senate in its “Introducer’s Memorandum in Support” are present in this case.1 In any event, Defendant, as the party asserting a statute of limitations defense, bears the burden of establishing that the time has expired. See e.g. U.S. Bank N.A. v. Derissaint, 193 AD3d 790, 791 [2d Dept. 2021]. He does not meet his burden. A mortgage foreclosure action is subject to a six-year statute of limitations. CPLR 213[4]; U.S. Bank N.A. v. Derissaint, supra. The statute of limitations begins to run once the mortgage debt is accelerated. Defendant contends that the debt was accelerated no later than 2011. He supports his argument by passing reference to an August 6, 2010 letter from the lender entitled “Notice to Accelerate.” However, the terms of the letter are not sufficient to constitute acceleration of the debt, see Milone v. US Bank N.A., 164 AD3d 145, 152 [2d Dept. 2018],2 and Defendant does not sincerely argue that they are. The core of Defendant’s claim is that acceleration of the mortgage debt occurred when he filed a Chapter 7 bankruptcy. According to the Defendant, the debt was accelerated when Plaintiff’s bankruptcy counsel filed a notice of appearance in the bankruptcy proceeding, an act the Defendant argues is similar to the filing of a notice of claim, a motion or a request for relief from the automatic stay. He cites case law where those filings were found to be sufficient to constitute acceleration. See In Re PCH Assocs., 12 BR 181 [Banke SDNY 1990] & Matter of LHD Realty Corp, 726 F2d 327 [7th Cir 1984]. While this Court concurs with these decisions in that the affirmative act of seeking relief from the bankruptcy court in the form of filing certain requests for relief may accelerate the debt, the Court does not agree with the defense conclusion that the mere filing of a notice of appearance, with a request to be served with all papers, is analogous to same. The foregoing is determinative, both procedurally and substantively, as to Defendant’s cross-motion. Nevertheless, some further facts should be stated. It is not disputed that there was a prior foreclosure action which was commenced on October 24, 2013. Typically, a mortgage debt is accelerated when an action to foreclose a note mortgage is commenced.3 Deutsche Bank Natl. Trust Co. v. Ebanks, 189 AD3d 1535, 1536-1537 [2d Dept. 2020]. Thus, the statute of limitations expired on October 24, 2019. The instant action was commenced on February 12, 2019, and, therefore, is timely. In addition, the 2013 action was discontinued on August 7, 2018, after Defendant signed a loan modification. Defendant argues that the June, 2018 loan modification did not toll, extend or reset the limitations period because he did not reaffirm the debt. Section 17-101 of the General Obligations Law “‘effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt.’” Deutsche Bank Natl. Trust Co. v. MacPherson, 200 AD3d 647, 649-650 [2d Dept. 2023] citing Lynford v. Williams, 34 AD3d 761, 762 [2d Dept. 2006] “In order to constitute a valid acknowledgment, the writing ‘must recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it.’” Id. FAPA did not amend General Obligations Law Section 17-101. Here, Defendant signed a writing which sets forth the existing debt, to wit: the amount due under the Note and Security Instrument as well as an amount described as the “Deferred Principal Balance.” The modification agreement further states that Defendant agreed to “pay in full the Deferred Principal Balance and any other amounts still owed under the Loan Documents.” While Defendant points to language in the modification agreement which provides that he will not have personal liability for the mortgage debt given his discharge in bankruptcy, Defendant understood and agreed that the Lender retained all rights and remedies relating to a default in the making of payments. There are no terms in the modification agreement which are inconsistent with the Defendant’s intention to pay as a lender can lawfully foreclose on real property when personal liability on the part of a borrower has been discharged. It is well settled that “[a]lthough a bankruptcy discharge extinguishes one mode of enforcing a note — namely, an action against the debtor in personam, it leaves intact another — namely, an action against the debtor in rem.” Deutsche Bank Tr. Co. Americas v. Vitellas, 131 AD3d 52, 63 [2d Dept. 2015]; see also In re Ho, 624 BR 748, 752 [Bankr. E.D.N.Y. 2021] (“a secured creditor’s ‘right to foreclose on the mortgage survives or passes through the bankruptcy’ and remains enforceable under state law”); JP Morgan Chase Bank, NA v. Cantwell, 212 AD3d 720, 721-22 [2d Dept. 2023]. Finally, Defendant directs the Court to the newly added CPLR 203(h) which provides: “Once a cause of action upon an instrument described in subdivision four of section two hundred thirteen of this article has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute.” Clearly, this section is not applicable as the 2018 loan modification was signed by both parties and, accordingly, was not a unilateral act. Thus, the 2018 loan modification reset the statute of limitations period and the 2019 foreclosure action is timely. 14 Fillm Corp. v. Mid-Island Mtge. Corp., 218 AD3d 525, 526-527 [2d Dept 2023]. Plaintiff’s motion for Judgment of Foreclosure and Sale and to confirm the Referee report is granted as it is otherwise unopposed by Defendant. The Court has considered the additional contentions of the parties not specifically addressed herein and finds them unavailing. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied. Based upon the foregoing, it is hereby ORDERED that the cross-motion is denied in all respects, including those portions of Defendant’s motion which seek to cancel and discharge the mortgage, cancel the notice of pendency and an award of counsel fees and costs; and it is further ORDERED that Plaintiff’s motion is granted and the Court will sign the proposed Judgment of Foreclosure and Sale. The foregoing constitutes the Decision and Order of the Court. Dated: November 9, 2023
