timely interposed defense in New York

2026The Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]) amended CPLR 213(4) "by adding, among other things, paragraph (a), which provides that '[i]n any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determi

2025As the 2000 action was not dismissed "based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213[4][a]), the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2000 action ( see US Bank Trust, N.A. v Reizes , 222 AD3d 907, 910 ; GMAT Legal Title Trust 2014-1 v Kator , 213 AD3d at 917 ).

2026Since the 2003 action was not dismissed based upon an expressed judicial determination that the instrument was not validly accelerated, the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2003 action ( see U.S. Bank Trust, N.A. v Reizes , 222 AD3d at 910 ).

2025As the 2000 action was not dismissed "based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213[4][a]), the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2000 action ( see US Bank Trust, N.A. v Reizes , 222 AD3d 907, 910 ; GMAT Legal Title Trust 2014-1 v Kator , 213 AD3d at 917 ).

2025"When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt." Wells Fargo Bank, N.A. v. Rutty, 206 AD3d 862 , 863 (2d Dep't 2022) quoting Deutsche Bank Trust Co. Ams. v. Marous, 186 AD3d 669 , 670 (2d Dep't 2020).

2025"When a mortgage is payable in installments, which is the typical practice, an acceleration of the entire amount due begins the running of the statute of limitations on the entire debt." Wells Fargo Bank, N.A. v. Rutty, 206 AD3d 862, 863 (2d Dep't 2022) quoting Deutsche Bank Trust Co. Ams. v. Marous, 186 AD3d 669 , 670 (2d Dep't 2020).

2023Therefore, the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2007 action based on Saxon's lack of standing ( see id. ).

2023However, since the 2007 action was voluntarily discontinued, and, therefore, was not dismissed "based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" ( id. § 213[4][a]), the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the 2007 action based on the plaintiff's lack of standing ( see id. ).

2023Mellon v Stewart , 216 AD3d 720 ; GMAT Legal Title Trust 2014-1 v Kator , 213 AD3d at 917 ).

2023In this Department, where a prior action was voluntarily discontinued, a lender is estopped from asserting that a debt was not validly accelerated where there was no expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated by the commencement of the prior action based on the plaintiff's lack of standing ( Bank of NY Mellon v Stewart , at 723, citing CPLR § 213(4)).

2026Contrary to the defendants' contention, the plaintiff is not estopped from asserting that the debt was not validly accelerated by the commencement of the prior action, since that action was "dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213[4]; see U.S. Bank Trust, N.A. v Gruen , 237 AD3d at 998).

2026Contrary to the defendants' contention, the plaintiff is not estopped from asserting that the debt was not validly accelerated by the commencement of the prior action, since that action was "dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213[4]; see U.S. Bank Trust, N.A. v Gruen , 237 AD3d at 998).

2026Trust Co. v DiGiorgio , 237 AD3d at 901, quoting GMAT Legal Title Trust 2014-1 v Kator , 213 AD3d at 916-917 ).

2026Trust Co. v DiGiorgio , 237 AD3d at 901, quoting GMAT Legal Title Trust 2014-1 v Kator , 213 AD3d at 916-917).

2025Mellon v Treitel , 217 AD3d at 913; cf. Everhome Mtge.

2025Mellon v Treitel , 217 AD3d at 913 ; cf. Everhome Mtge.

2025Although Chase expressly "elect[ed] to call due the entire amount secured by the mortgage" in the complaint in the 2009 action, the 2009 action was dismissed based upon the Supreme Court's determination, inter alia, that Chase had failed to comply with the notice of default provision contained in paragraph 22 of the mortgage agreement, which required service of a specified default notice as a condition precedent to acceleration of the loan ( see U.S. Bank N.A. v Hazan , 176 AD3d 637, 638; 1 Bergman on New York Mortgage Foreclosures § 4.04A; see also Bank of N.Y.

2025Although Chase expressly "elect[ed] to call due the entire amount secured by the mortgage" in the complaint in the 2009 action, the 2009 action was dismissed based upon the Supreme Court's determination, inter alia, that Chase had failed to comply with the notice of default provision contained in paragraph 22 of the mortgage agreement, which required service of a specified default notice as a condition precedent to acceleration of the loan ( see U.S. Bank N.A. v Hazan , 176 AD3d 637 , 638; 1 Bergman on New York Mortgage Foreclosures § 4.04A; see also Bank of N.Y.

2025The portion of Section 7 of FAPA at issue in this case is codified at CPLR 213 (4) (b): "[A] defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated." [FN2] FAPA Section 10 then provides that "[t]his ac

2025The portion of Section 7 of FAPA at issue in this case is codified at CPLR 213 (4) (b): "[A] defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated." [FN2] FAPA Section 10 then provides that "[t]his ac

2025Solutions, Inc. v Gipson , 230 AD3d at 815-816).

2024Even applying FAPA, the mortgage debt was not accelerated in 2013 when the prior lender filed the complaint because the complaint was dismissed based on an "expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated." Under the circumstances, the purported acceleration through commencement of that action "was a nullity, and the statute of limitations did not begin to run at the time of the purported acceleration." IPA Asset Mgt., LLC v Bank of NY Mellon , 202 AD3d 1068, 1070 (2d Dept 2022).

2023CPLR 213(4)(b) now provides that "a defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated." The fact that the complaint in the 2010 action was dismissed insofar as asserted against the borrower for fa