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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A.

v Fiorita (2018 NY Slip Op 51240(U))

[*1]
Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita

2018 NY Slip Op 51240(U)

Decided on August 6, 2018

Supreme Court, Suffolk County

Mayer, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2018

Supreme Court, Suffolk County

Residential Mortgage Loan Trust 2013-TT2, BY U.S. Bank National


Association, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS
LEGAL TITLE TRUSTEE RMLT 2013-TT2, Plaintiff(s),

against

Peter E. Fiorita a/k/a PETER FIORITA, ANNA FIORITA a/k/a ANNA


NACCHIA, NEW YORK STATE DEPARTMENT OF TAXATION
AND FINANCE, PALISADES COLLECTION LLC AS ASIGNEE OF
AT & T WIRELESS, CAPITAL ONE BANK, USA, NA, and "JOHN
DOE #1" through "JOHN DOE #12," the last twelve names being
fictitious and unknown to plaintiff, the persons or parties intended being
the tenants, occupants, persons or corporations, if any, having or
claiming an interest in or lien upon the premises described in the
complaint, Defendant(s).

600936-2016

Berkman, Henoch, Peterson, Peddy & Frenchel, P.C.


Attorneys for Plaintiff
100 Garden City Plaza

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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita (2018 NY Slip Op 51240(U))

Garden City, new York 11530

Young Law Group, PLLC


Attorneys for Defendant
80 Orville Drive, Suite 100
Bohemia, New York 11716-2531

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the
defendant, dated February 16, 2016 and supporting papers, including Memorandum of Law; (2)
Affirmation in Opposition by the plaintiff, dated April 4, 2016, and supporting papers, including
Memorandum of Law; (3) Reply Affirmation by the defendant, dated April 22, 2016, and supporting
papers, including Memorandum of Law; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing


papers, the motion is decided as follows: it is

ORDERED that the motion (001) by the defendant, Anna Fiorita a/k/a Anna Nacchia ("Anna
Fiorita"), which seeks an order, inter alia, dismissing the plaintiff's complaint pursuant to CPLR
§3211(a)(5) and CPLR §213(4), is hereby granted; and it is further

ORDERED that counsel for the movant shall promptly serve a copy of this Order upon counsel
for all parties via First Class Mail, and shall promptly thereafter file the affidavit of such service with
the Suffolk County Clerk.

On March 14, 2007, defendants Peter E. Fiorita and Anna Fiorita executed and delivered a Note
in favor of Tribeca Lending Corporation in the amount of $266,500, which was secured by a
mortgage against the property located at 27 Byway Drive, Deer Park, New York. After the Fioritas
defaulted in timely making loan payments, Mortgage Electronic Systems, Inc., as Nominee of
Tribeca Lending Corporation (hereinafter "Tribeca") commenced a prior foreclosure proceeding
against the Fioritas on October 15, 2007 under Suffolk County index number 31966/2007. That
action was ultimately dismissed by Judgment and Order of Hon. Daniel [*2]Martin, dated December
11, 2014, for lack of personal jurisdiction. The Note and Mortgage were assigned to various different
entities numerous times after the initiation of that 2007 action. More than 8 years after
commencement of the prior action, plaintiff in this action (hereinafter "Residential"), commenced
this foreclosure action against the defendants by the filing of a summons and complaint on January

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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita (2018 NY Slip Op 51240(U))

28, 2016. Defendant Anna Fiorita filed the instant motion for an order dismissing this 2016 action
with prejudice, on the grounds that the action is barred by the six-year statute of limitations
applicable to foreclosure actions.

When a mortgage is payable in installments, separate causes of action accrue for each unpaid
installment and the statute of limitations begins to run on the date each installment becomes due,
unless the mortgage debt is accelerated (see Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 943
NYS2d 540 [2d Dept 2012]; Esther M. Mertz Trust v Fox Meadow Partners, Ltd., 288 AD2d 338,
734 NYS2d 77 [2d Dept 2001]; Wells Fargo Bank, N.A v Cohen, 80 AD3d 753, 915 NYS2d 569 [2d
Dept 2011]; Loiacono v Goldberg, 240 AD2d 476, 658 NYS2d 138 [2d Dept 1997]). Where an
installment payment mortgage is properly accelerated, the entire amount is due and the six-year
statute of limitations begins to run on the entire mortgage debt (see CPLR 213[4]; NMNT Realty
Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 58 NYS3d 118 [2d Dept 2017]; Wells Fargo Bank,
N.A. v Burke, 94 AD3d 980, 943 NYS2d 540 [2d Dept 2012]; EMC Mtge. Corp. v Patella, 279
AD2d 604, 720 NYS2d 161 [2d Dept 2001]; Federal Natl. Mtge. Assn. v Mebane, 208 AD2d 892,
618 NYS2d 88 [2d Dept 1994]).

A notice of acceleration served upon the borrower must be "clear and unequivocal" that the
lender has elected to accelerate the entire mortgage debt (see Sarva v Chakravorty, 34 AD3d 438,
826 NYS2d 74 [2d Dept 2006]; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 943 NYS2d 540 [2d
Dept 2012]). The filing of a foreclosure summons and complaint and lis pendens serves as such
notice, thereby triggering the limitations period (see Deutsche Bank National Trust Company v
Adrian, 157 AD3d 934, 69 NYS3d 706 [2d Dept 2018]; MSMJ Realty, LLC v DLJ Mortgage Capital,
Inc., 157 AD3d 885, 69 NYS3d 870 [2d Dept 2018]; Clayton National, Inc. v Guldi, 307 AD2d 982,
763 NYS2d 493 [2d Dept 2003]). Here, the prior action was filed on March 21, 2006, thereby
effectively accelerating the mortgage and starting the running of the six-year foreclosure statute of
limitations.

CPLR 3211(a)(5) authorizes a party to move for dismissal of a plaintiff's complaint "on the
ground that . . . the cause of action may not be maintained because of . . . [a] statute of limitations."
An action to foreclose a mortgage bears a six-year statute of limitations (see CPLR §213[4]; 53 PL
Realty, LLC v U.S. Bank Nat. Ass'n, 153 AD3d 894, 61 NYS3d 120 [2d Dept 2017]; Kashipour v
Wilmington Savings Fund Society, FSB, 144 AD3d 985, 41 NYS3d 738 [2d Dept 2016]. Generally, a
mortgage foreclose action may be brought to recover unpaid amounts due within the six-year period
immediately preceding the action (see CPLR 213[4]; Nationstar Mortgage, LLC v Weisblum, 143

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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita (2018 NY Slip Op 51240(U))

AD3d 866, 39 NYS3d 491 [2d Dept 2016]).

When a defendant moves to dismiss an action pursuant to CPLR 3211(a)(5) on the ground that it
is barred by the statute of limitations, the defendant bears the initial burden of [*3]establishing, prima
facie, that the time in which to sue has expired (see U.S. Bank National Ass'n v Joseph, 159 AD3d
968, 73 NYS3d 238 [2d Dept 2018]; Wells Fargo Bank, NA v Burke, 125 AD3d 765, 5 NYS3d 107
[2d Dept 2015]). The burden then shifts to the plaintiff to submit evidentiary facts to establish the
statute of limitations has not expired, that it is tolled, or that an exception to the limitations period
applies (id.; Lake v New York Hosp. Med. Ctr. of Queens, 119 AD3d 843, 989 NYS2d 365 [2d Dept
2014]; Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768, 936 NYS2d 575
[2d Dept 2012]; Baptiste v Harding-Marin, 88 AD3d 752, 930 NYS2d 670 [2d Dept 2011]; Lessoff v
26 Court Street Assocs., LLC, 58 AD3d 610, 872 NYS2d 144 [2d Dept 2009]).

In opposition to defendant's motion, counsel for the current plaintiff, Residential, submits an
affirmation that is unsupported by an affidavit from one with personal knowledge of Tribeca's
alleged lack of standing. An affirmation of a party's attorney submitted in support of or opposition to
a motion, and which is without actual knowledge of the facts, has no probative value (see Pierre v
Demoura, 148 AD3d 736, 48 NYS3d 260 [2d Dept 2017]; Niyazov v Bradford, 13 AD3d 501, 786
NYS2d 582 [2d Dept 2004]; Demetri v Mallard, 295 AD2d 395, 743 NYS2d 317 [2d Dept 2002];
Browne v Castillo, 288 AD2d 415, 733 NYS2d 494 [2d Dept 2001]; Grosvenor v Niemand Bros.,
149 AD2d 459, 539 NYS2d 793[2d Dept 1989]; Dicupe v City of New York, 124 AD2d 542, 507
NYS2d 687 [2d Dept 1986]; Farina v Pan American World Airlines, Inc., 116 AD2d 618, 497
NYS2d 706 [2d Dept 1986]). A motion supported by an affirmation of an attorney who demonstrates
no personal knowledge of the substantive facts is without evidentiary value and is, therefore,
unavailing on the issues presented to the Court (see Zuckerman v City of New York, 49 NY2d 557,
427 NYS2d 595 [1980]).

Even if plaintiff's counsel's affirmation were evidentiary in nature, based upon the record
presented counsel's arguments are, nevertheless, unavailing. In general, it is true that commencement
of an action is ineffective to constitute a valid acceleration of a debt where the plaintiff in the action
does not have the authority to accelerate the debt or sue to foreclosure at the time the action was
commenced (see 21st Mortg. Corp. v Adames, 153 AD3d 474, 60 NYS3d 198 [2d Dept 2017]; Wells
Fargo Bank, N.A. v Burke, 294 AD3d 980, 943 NYS2d 540 [2d Dept 2012]; EMC Mortgage Corp. v
Suarez, 49 AD3d 592, 852 NYS2d 791 [2d Dept 2008]). Here, however, Residential's counsel's
contentions are belied by the motion record. For example, Residential's counsel contends that with

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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita (2018 NY Slip Op 51240(U))

regard to the 2007 action, Tribeca "never held the Note and Mortgage" and that, therefore,
"commencement of the 2007 Action did not accelerate the debt" (emphasis added). However,
paragraph 2 of Residential's own 2016 complaint states that "on the 14th day of March, 2007 Peter E.
Fiorita and Anna Fiorita duly executed and delivered to Tribeca Lending Corporation their note
bearing said date ..." In addition, the original March 14, 2007 mortgage endorsement from Peter E.
Fiorita & Anna Fiorita as Borrowers to MERS for Tribeca was not assigned thereafter until MERS
for Tribeca assigned it to Huntington National Bank on December 10, 2010 (recorded on January 4,
2011), which was after Tribeca commenced the 2007 action. Therefore, contrary to Residential's
counsel's contentions, as confirmed in paragraph 8 of Tribeca's 2007 complaint, "Plaintiff [Tribeca
was] the owner and Holder of the Note and Mortgage" at the time the 2007 action was commenced.
Accordingly, this Court finds [*4]that Tribeca's filing of the summons and complaint on October 15,
2007 constituted an acceleration of the subject debt.

While a lender may revoke its prior election to accelerate the mortgage, such revocation can
only be accomplished through an affirmative act by the lender, provided such revocation is made
within the six-year statute of limitations period subsequent to the initiation of the prior foreclosure
action, and provided there is no change in the borrower's position in reliance thereon (see Freedom
Mortgage Corporation v Engel, ___ AD3d ___, ___ NYS3d ___, 2018 NY Slip Op 05140 [2d Dept
2018]; Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d 934, 69 NYS3d 706 [2d Dept 2018];
NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 58 NYS3d 118 [2d Dept 2017];
Kashipour v Wilmington Savings Fund Society, FSB, 144 AD3d 985, 41 NYS3d 738 [2d Dept 2016]
EMC Mtge. Corp. v Patella, 279 AD2d 604, 720 NYS2d 161 [2d Dept 2001]). A foreclosure action
is dismissible where the lender has made no affirmative act of revocation during the six-year statute
of limitations period after the complaint was served in the prior foreclosure action in which the
lender notified the borrower of its election to accelerate (see Federal Natl. Mtge. Assn. v Mebane,
208 AD2d 892, 618 NYS2d 88 [2d Dept 1994]; Golden v Ramapo Improvement Corp., 78 AD2d
648, 432 NYS2d 238 [2d Dept 1980]).

In order to stop the statute of limitations clock from running, a mortgage holder who has elected
to accelerate the entire debt may later revoke the acceleration and decelerate the mortgage, thereby
returning it to installment status (see Citimortgage, Inc. v Ramirez, 59 Misc 3d 1212[A], 2018 NY
Slip Op 50525[U] [Sup Ct, New York County 2018]). To be effective in resetting the statute of
limitations clock, such revocation or deceleration must satisfy a five (5)-prong test: 1) the revocation
must be evidenced by an affirmative act; (2) the affirmative act must be clear and unequivocal; 3) the
affirmative act must give actual notice to the borrower that the acceleration has been revoked; 4) the

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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita (2018 NY Slip Op 51240(U))

affirmative act must occur before the expiration of the six (6)-year statute of limitations period; and
5) the borrower must not have changed his or her position in reliance on the acceleration (id.).

In the 2007 Tribeca action, a traverse hearing was held on October 14, 2014, after which Hon.
Daniel Martin dismissed the action for lack of personal jurisdiction by Order, dated October 27,
2014. A Judgment was entered in connection therewith on December 11, 2014. This dismissal,
however, did not stop the running of the limitation period, since a court's dismissal of a prior action
for lack of personal jurisdiction, failure to prosecute or failure to appear at a conference, or the
acceptance of additional payments after acceleration, do not constitute an affirmative act by the
lender to revoke its election to accelerate (see Clayton National, Inc. v Guldi, 307 AD2d 982, 763
NYS2d 493 [2d Dept 2003]; Federal Natl. Mtge. Assn. v Mebane, 208 AD2d 892, 618 NYS2d 88 [2d
Dept 1994]; U.S. Bank Nat. Ass'n v Wongsonadi, 2017 NY Slip Op. 50452(U), 55 Misc 3d 1207(A),
55 NYS3d 695 [Sup Ct, Queens County 2017]).

Based upon the foregoing, the defendant has established, prima facie, that this action was
commenced outside the applicable statute of limitations. In opposition, Residential has failed to meet
its burden of showing an affirmative act revoking the prior debt acceleration, thereby [*5]halting the
running of statute of limitations. Since Residential's complaint was filed on January 28, 2016, outside
the applicable six-year limitations period, the defendant's motion is granted and the complaint is
dismissed as untimely (see CPLR 213[4]; UMLIC VP, LLC v Mellace, 19 AD3d 684, 799 NYS2d 61
[2d Dept 2005]; Clayton Natl., Inc. v. Guldi, 307 AD2d 982, 763 NYS2d 493 [2d Dept 2003]; EMC
Mtge. Corp. v Patella, 279 AD2d 604, 720 NYS2d 161 [2d Dept 2001]; Federal Natl. Mtge. Assn. v
Mebane, 208 AD2d 892, 618 NYS2d 88 [2d Dept 1994).

Plaintiff's assertion, that defendant's loan modification applications in 2010 and 2011
constituted an acknowledgment of the debt which started the statute running anew, is without merit.
Such loan modification applications do not constitute an acknowledgment of the debt and an
unconditional promise to repay the debt sufficient to have reset the running of the statute of
limitations (see U.S. Bank Natl. Assn. v Kess, 159 AD3d 767, 71 NYS3d 635 [2d Dept 2018]; Sichol
v. Crocker, 177 AD2d 842, 843, 576 N.Y.S.2d 457 [3d Dept 1991]); see also Petito v Piffath, 85
NY2d 1, 623 NYS2d 520 [1994]).

This constitutes the Decision and Order of the Court.

Submit Judgment.

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Residential Mtge. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita (2018 NY Slip Op 51240(U))

Dated:August 6, 2018
PETER H. MAYER, J.S.C.

Return to Decision List

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