Since 1977, Jon Michael Probstein has assisted people and businesses in all matters. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Admitted in New York and Massachusetts. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com
I will be volunteering today, Wednesday, July 29, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues.
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070
The Consumer Financial Protection Bureau (CFPB) issued a final rule moving the effective date of the Know Before You Owe mortgage disclosure rule, also called the TILA-RESPA Integrated Disclosures rule, to October 3, 2015. The rule requires easier-to-use mortgage disclosure forms that clearly lay out the terms of a mortgage for a homebuyer.
I have been reading a number of recent cases of custody changes from one spouse to another. This one I found interesting:
Matter of Stones v Vandenberge 2015 NY Slip Op 03546 Decided on April 29, 2015 Appellate Division, Second Department:
"Contrary to the mother's contention, there was sufficient evidence in the hearing record both to demonstrate the requisite change in circumstances and to support the Family Court's determination modifying the 2009 custody order by awarding custody to the father. While it would have been preferable for the court to consider forensic evaluations of the parties and the child in reaching its custody determination, under the particular circumstances of this case, there was ample testimony and documentary evidence upon which the court could determine the best interests of the child. The custody determination has a sound and substantial basis in the record, and we discern no basis for disturbing it."
"States with the longest average days to complete foreclosure for foreclosures completed in the first quarter were New York (1,475 days), New Jersey (1,115 days), Hawaii (1,058 days), Florida (975 days), and Kansas (963 days)."
But in July, they reported:
"States with the longest foreclosure timelines were New Jersey (1,206), Hawaii (1,060), Montana (1,028), New York (1,000), and Florida (989)."
C.M. v C.M. 2015 NY Slip Op 50547(U) Decided on April 15, 2015 Supreme Court, Richmond County DiDomenico, J.
Note the length of the trial, number of witnesses, exhibits, etc.:
"The parties' cross custody and child support causes of action were tried before the Court on May 2, 2014; May 8, 2014; May 16, 2014; May 28, 2014; June 5, 2014; September 11, 2014; September 12, 2014; September 24, 2014 and September 26, 2014. Plaintiff Husband testified on his own behalf and called the following witnesses: (1) Sybil M. (paternal grandmother); (2) Vincent M. (paternal grandfather) (3) Mike P. (co-worker); and (4) Mindy M. (sister in law). Husband offered various documents into evidence (Pl. Ex. 1-31) not all of which were received. Defendant Wife testified on her own behalf and called the following witnesses: (a) Plaintiff Husband; (b) Michelina L. (maternal grandmother), (c) Nancy L. (her sister), and (d) Dr. N.G. Berrill (the forensic evaluator). Wife attempted to introduce various documents into evidence. (Def. Ex. A-U) not all of which were received. Judicial notice was taken of, among other documents, all orders and pleadings in the IDV criminal cases previously pending before this Court. (Docket Nos. 40003M2013; 40141M2013; 40078M2012; 40079M2012; 40080M2012; 40081M2012; 40082M2012 and 40093M2012). The attorney for the subject child called Elizabeth C. (the subject child's teacher) as a witness and submitted documents into evidence (AFC Exs. 1-4). Both parties submitted questions for consideration at the in camera examination which was held on October 1, 2014. Written summations were received from all counsel."
This case came to my attention: Finn v. Piesco, --- A.D.3d ---, --- N.Y.S.3d --- (First Dept. 2015)(2015 WL 1636653)(2015 N.Y. Slip Op. 03087)(Apr. 14, 2015).
The fact pattern is not set forth in detail but it appears that Wife/Mom was an experienced attorney with other degrees and professions (once earning up to 125G) but apparently no longer working: she was on public assistance and made pendent lite motion for temporary maintenance and modification of prior child support order.
The supreme court imputed income to Wife/Mom and denied application for maintenance and modification of child support. But the Appellate Division remanded the case for reconsideration of child support while upholding the denial of maintenance.
Thus it would appear that income was imputed for purposes of temporary maintenance but not for child support.
I read about this on Monday, discussed the article with other lawyers at the NCBA fdoreclosure clinic on Monday - and here's the decision (presently being appealed). Plaintiff v. Theresa A. Tovar a/k/a Thresa Tovar; et al., Defendants,
61092/2014
Decided: December 22, 2014
ATTORNEYS
Plaintiff's Attorney: Fein, Such &
Crane, LLP, Westbury, NY.
Attorney for Theresa A. Tovar: Young
Law Group, PLLC: Ivan E. Young, Esq., Bohemia, NY.
Attorneys for Richard J. Klein DDS,
P.C.: Farber Rosen & Kaufman P.C., Rego Park, NY.
*1
In this foreclosure action, Defendant, Tovar1, moves for an
Order, pursuant to CPLR 3211 (a) (5), dismissing Plaintiff's Complaint, with
prejudice, on the ground that the Complaint is time barred pursuant to the
six-year statute of limitations [see CPLR §213 (4)], together with an award of
attorneys' fees, costs, and disbursements, pursuant to RPL §282, in the amount
of $7640.00.
PROCEDURAL HISTORY
THE PRIOR "2007" FORECLOSURE ACTION
Based on Defendant's alleged default of February 16, 2007, Plaintiff
accelerated the Consolidated Mortgage and Consolidated Note herein by
commencing a foreclosure action (hereinafter the "2007 action"). Said
action was filed on October 4, 2007, under Index No.: 31069/2007. (See,
*2
infra Ex. 1 of Defendant's April 17, 2014 Affirmation in Support).
On February 4, 2008, the Court (Molia, J., presiding) granted Plaintiff's
application for a default Judgment and for an Order of Reference (mot. seq.
001) (See, infra Ex. 2 of Defendant's April 17, 2014 Affirmation in Support).
On September 22, 2008, the Court (Molia, J., presiding) granted Plaintiff's
application for a Judgment of Foreclosure and Sale (mot. seq. 004) (id.).
On April 30, 2009, Defendant filed a Chapter 13 Bankruptcy petition (See,
infra Ex. 4 of Defendant's August 20, 2014 Reply Memorandum at Law). On July
14, 2009, Defendant's Chapter 13 Bankruptcy case was dismissed and the
automatic bankruptcy stay was terminated (See, infra Ex. 2 of Defendant's
August 20, 2014 Reply Memorandum at Law).
On January 26, 2010, Defendant filed an Order to Show Cause (mot. seq.
005), pursuant to CPLR 5015 (4), seeking to dismiss Plaintiff's 2007 action
based on the improper service of the complaint therein. Defendant's application
was granted on May 6, 2010. (See, infra Ex. 1 of Defendant's August 20, 2014 Reply
Memorandum at Law). Thereafter, on April 3, 2012, Plaintiff filed an unopposed
motion to discontinue the 2007 action (mot. seq. 006), which was granted by the
Court on April 20, 2012 (See, infra Ex. 4 of Defendant's August 20, 2014 Reply
Memorandum at Law).2
PLAINTIFF'S INSTANT "2014" FORECLOSURE ACTION
Plaintiff filed the instant and second foreclosure action (the "2014
action") on February 21, 2014, under Index No.: 061092/2014. (See, infra
Ex. 1 of Defendant's August 20, 2014 Reply Memorandum at Law). The instant
action mirrors the 2007 action, in that it claims the same Plaintiff against
the same Defendant, based on the same previously accelerated Consolidated
Mortgage and Note.
Defendant argues that by filing the 2007 action, Plaintiff effectively accelerated
the subject Consolidated Mortgage and Consolidated Note, rendering October 4,
2007 the "Acceleration Date" for the statute of limitation purposes.
Using the October 4, 2007 acceleration date, Plaintiff could only satisfy the
statute of limitation herein by re-filing the action (once dismissed) on or
before October 3, 2013.
DECISION & ORDER
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on
statute of limitations grounds, the moving defendant must establish, prima
facie, that the time in which to commence the action has expired." Lake v.
NY Hosp. Med. Ctr. of Queens, 119AD3d 843 [2d Dept 2014. If the defendant meets
that burden, it is then incumbent upon plaintiff to raise a question of fact as
to whether the statute of limitations was tolled or was otherwise inapplicable,
or whether it actually commenced the action within the applicable limitations
period. Reid v. Inc. Vil. of Floral Park, 107 AD3d 777, 778
*3
[2d Dept 2013].
It is well settled that an action to foreclose a mortgage may be brought to
recover unpaid sums which were due within the six-year period immediately
preceding the commencement of the action. See, CPLR §213 (4); Wells Fargo Bank,
N.A. v. Burke, 94 AD3d 980, 982 [2d Dept 2012]. "[W]ith respect to a mortgage
payable in installments, there are 'separate causes of action for each
installment accrued, and the Statute of Limitations [begins] to run, on the
date each installment [becomes] due'" Wells Fargo Bank, N.A. v. Cohen, 80
AD3d 753, 754 [2d Dept 2010]. "However, 'even if a mortgage is payable in
installments, once a mortgage debt is accelerated, the entire amount is due and
the Statute of Limitations begins to run on the entire debt'." Burke, 94
AD3d at 982. "The filing of the summons and complaint and lis pendens in
an action accelerate[s] the note and mortgage." Clayton Nat'l, Inc. v.
Guldi, 307 AD2d 982, 982 [2d Dept 2003]. "Once the mortgage debt [is]
accelerated, the borrowers' right and obligation to make monthly installments
cease[s] and all sums bec[ome] immediately due and payable." Fed. Nat'l
Mtge. Ass'n v. Mebane, 208 AD2d 892, 894 [2d Dept 1994].
Here, the Defendant has met her prima facie showing that Plaintiff's
instant foreclosure action was commenced after the applicable statute of
limitation period, demonstrating an entitlement to the dismissal of the instant
action, with prejudice, pursuant to CPLR §213 (4) and CPLR 3211 (a) (5). Reid,
107 AD3d at 778.
After reviewing Plaintiff's counsel unsuccessful attempt to rebut
Defendant's prima facie showing, this Court finds that the instant action has
been filed after the applicable statute of limitation period, and therefore,
must be dismissed.
Plaintiff unsuccessfully argues that Defendant's Chapter 13 Bankruptcy
filing tolled the applicable statute of limitations herein.
The tolling of a statute of limitation period pursuant to CPLR §204 (a)
only applies when a "stay" affects "the commencement of an
action". As such, Plaintiff does not benefit of any tolling of the statute
of limitation period under CPLR §204 (a) because Defendant's Chapter 13
Bankruptcy filing did not stay Plaintiff's ability to commence an action.
Indeed, Plaintiff had already commenced the action on October 4, 2007, whereas
Defendant filed for Bankruptcy protection in April, 2009. See, e.g., Saini v.
Cinelli Enters., 289 AD2d 770, 772 [3rd Dept 2001], Iv denied 98 NY2d 602
[2002] ("With regard to the claimed effect of defendant's bankruptcy
filing on the Statute of Limitations, we find that it neither renewed nor
tolled the six-year Statute of Limitations. The first action had been
discontinued prior to the time that defendant filed its bankruptcy petition in
December 1997 and the bankruptcy petition was dismissed in December 1998, long
before this second foreclosure action was commenced and, thus, the bankruptcy
proceeding never operated to toll a pending foreclosure action.").
Accordingly, Plaintiff's counsel's argument that the Defendant's bankruptcy
filing stayed and/or otherwise tolled the applicable statute of limitations herein
is unsupported by the facts of this case.
Plaintiff next argues that the applicable statute of limitations was
suspended by Governor Cuomo's Executive Order's No.'s 52 & 81 (Hanusek Aff.
¶6, Ex. B). This argument is also unavailing.
*4
Plaintiff contends that Governor Cuomo's Executive Order's 52 and 81
(hereinafter "9 NYCRR §8.52" and "9 NYCRR §8.81",
respectively) added "an additional 143 days to the statute of limitations
expiration of October 4, 2013," (Hanusek Aff. ¶6).
This Court disagrees. 9 NYCRR §8.52 temporarily suspended "[s]ection
201 of the [CPLR], so far as it bars actions whose limitation period
concludes during the period," between October 26, 2012 See, infra
Ex. 5 of Defendant's August 20, 2014 Reply Memorandum at Law) (emphasis added),
and December 25, 2012 (See, infra Ex. 5 of Defendant's August 20, 2014 Reply
Memorandum at Law). Simply put, 9 NYCRR §§8.52 and/or 8.81 suspended any
statute of limitations under section 201 of the CPLR if and/or when the
statutory time period for an action to be commenced expired between October 26,
2012 and December 25, 2012. Here, indisputably, upon Plaintiff's counsel's own
concession, the statute of limitations would not expire until October 4, 20133.
(Hanusek Aff. ¶6).
Since the applicable statute of limitations for the commencement of this
action expired on or before October, 2013, 9 NYCRR §§8.52 and/or 8.81 did not
suspend the statute of limitation period herein.
Plaintiff argues that the mandatory default notices sent by Plaintiff
constitute a revocation of the previous acceleration (Hanusek Aff. ¶9, Ex. C).
This contention also fails to persuade the Court.
The Second Department has again and again opined that without an
affirmative and unambiguous act by a lender to revoke a prior acceleration, the
acceleration remains undisturbed and the limitations statute still runs. UMLIC
VP, LLC v. Mellace, 19 AD3d 684, 684 [2d Dept 2005]; Guidi, 307 AD2d at 982;
Lavin v. Elmakiss, 302 AD2d 638, 639 [2d Dept 2003]. Strictly from a procedural
standpoint, the Court notes that Plaintiff's opposition is supported only by
the affirmation of Plaintiff's attorney, unsupported by any affidavit from an
individual with personal knowledge. As such, Plaintiff has "presented
insufficient evidence to [meet its burden which requires it to] raise a triable
issue of fact as to whether the statute of limitations was tolled" (Educ.
Res. Inst., Inc. v. Piazza, 17 AD3d 513, 515 [2d Dept 2005]), let alone
establish whether Plaintiff has made an affirmative and unambiguous act to
revoke a prior acceleration.
The Court further notes, without comment, that the 90 day default notices
specifically state that "[u]nder New York State Law, we are required
to send you this notice," and "[w]e are sending you this notice as
required by New York State law." (See, infra Ex. 4 of Defendant's
August 20, 2014 Reply Memorandum at Law) (emphasis added). Failure to provide
these mandatory notice would mandate dismissal of the action for failure to
satisfy the statutory conditions precedent as set forth in RPAPL §1304. In
Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 103 [2d Dept 2011], the Court
held: "[P]roper service of the RPAPL 1304 notice containing the
statutorily-mandated content is a condition precedent to the commencement of
the foreclosure action. The plaintiff's failure to show strict compliance
requires dismissal." Given the mandatory nature of the notices attached,
the Court is
*5
hard-pressed to find or imply an intent on the part of the Plaintiff to
revoke any prior acceleration of the Consolidated Note and Mortgage herein;
especially, when such assertion is not supported by an Affidavit of an individual
with personal knowledge of the facts surrounding said alleged revocation.
Moreover, the Court of Appeals has held that once a mortgagee makes the
election to file a foreclosure summons and complaint, thus accelerating the
mortgage debt due and owed in full, said election is "final and
irrevocable…and not subject to change at the option of the [mortgagee],"
Kilpatrick v. Germania Life Ins. Co., 183 NY 163, 168 [1905]. Notwithstanding,
the Second Department has recently opined that "a lender may revoke its
election to accelerate all sums due under an optional acceleration clause in a
mortgage provided that there is no change in the borrower's position in
reliance thereon." Mebane, 208 AD2d at 894 (citation omitted); but, in
Patella, 279 AD2d at 604, the Court held: "Although a lender may revoke
its election to accelerate the mortgage, the dismissal of the prior foreclosure
action by the court did not constitute an affirmative act by the lender.
revoking its election to accelerate, and the record is barren of any
affirmative act of revocation occurring during the six-year Statute of
Limitations period subsequent to the initiation of the prior action."
(internal citations omitted). In Mebane, 208 AD2d at 894, the Court held:
"[T]he record is barren of any affirmative act of revocation occurring
within the six-year Statute of Limitations period subsequent to the service of
the complaint in the prior foreclosure action, wherein the holder of the
mortgage notified the borrowers of its election to accelerate. The prior
foreclosure action was never withdrawn by the lender, but rather, dismissed sua
sponte by the court. It cannot be said that a dismissal by the court
constituted an affirmative act by the lender to revoke its election to
accelerate. Indeed, rather than seeking to revoke the prior election to
accelerate, the plaintiff made a failed attempt in 1991 to revive the prior
foreclosure action, and, in fact, in its complaint in the instant action
commenced in 1992, the plaintiff continues to seek recovery of the entire
mortgage debt pursuant to the acceleration clause." (internal citations
omitted).
Upon the foregoing, the Court must hold that the mere act of serving
mandatory default notices together with summons and complaint, without more,
cannot and does not constitute a de facto revocation of a prior election to
accelerate the mortgagor's obligation under the Note and Mortgage.
Plaintiff also argues that the previous acceleration of the Note and
Mortgage obligation (via the filing of the 2007 action) was invalided by the
Court's subsequent determination (prompting the dismissal of the 2007 action)
that service of the Summons and Complaint was either improper or, worse yet,
never effectuated. (Hanusek Aff. ¶10). This contention also fails in the eyes
of the Court.
The Second Department has already held that: "[c]ontrary to the
plaintiff's contention, the dismissal of the 1992 action for lack of personal
jurisdiction did not constitute an affirmative act by the lender to revoke its
election to accelerate." Guldi, 307 AD2d at 982; accord Wydallis v. United
States Fid. & Guar. Co., 63 NY2d 872, 873 [1984] ("[w]here a prior
action is dismissed for want of personal jurisdiction, [CPLR §205] cannot be
applied to extend the period of limitations."). Accordingly, Plaintiff's
latest contention, without more, must fail as a matter of law.
Plaintiff's final argument is that pursuant to GOL §17-105 (1), Defendant's
Bankruptcy filing caused the six (6) year statute of limitations to restart
anew (Hanusek Aff. ¶11).
*6
Contrary to Plaintiff's contention, the listing of a mortgage as a secured
debt on a bankruptcy petition does not, in and of itself, constitute and
affirmative act to re-acknowledge a debt under GOL §17-105 (1). Erlichman v.
Ventura, 271 AD2d 481, 482 [2d Dept 2000] ("[T]he listing of the debt on
[defendant's] bankruptcy petition did not constitute written acknowledgment of
the debt with the intent to pay so as to remove any Statute of Limitations bar
to recovery.") (internal citations omitted); see Saini, 289 AD2d at 772
("[T]he fact that defendant listed this mortgage on its schedule of
secured claims on its disclosure statement to its bankruptcy petition did not
constitute a promise to pay the mortgage so as to renew or extend the Statute
of Limitations but, rather, signified defendant's intent not to pay it.")
(internal citations omitted); accord Petito v. Piffath, 85 NY2d 1, 8-9 [1994],
cert denied 516 US 864 [1995].
In light of the foregoing, this Court must conclude that Plaintiff's
proffered excuses for having failed to file the instant action within six years
of the first acceleration of the Note and Mortgage obligation herein (as
revealed by the filing of the 2007 action) are untenable. Defendant's
application herein to dismiss the instant action pursuant to CPLR 3211 (a) (5)
and CPLR 213 (4) is therefore granted.
Defendant's request for an award of attorney's fees, however, is denied.
Defendant has not established an entitlement to fees (see RPL §282) under the
facts and circumstances of this case.
Accordingly, it is therefore
ORDERED, that Defendant instant motion is granted only to the extent that
the within action is dismissed and the notice of pendency filed with the County
Clerk under the within index number is vacated; and it is further
ORDERED, that Defendant's remaining requests, including her request for an
award of counsel fees pursuant to RPL §282, are denied; and it is further
ORDERED, that Defendant, or her counsel, must serve a copy of this Decision
and Order together with notice of its entry upon Plaintiff's counsel and upon
the County Clerk's office within twenty (20) days of its receipt hereof.
The foregoing constitutes the Decision and Order of the Court.
Dated: December 22, 2014
Central Islip, NY
1. Reference made hereafter to Defendant is only to
Defendant Tovar.
2. The Court notes that Plaintiff's motion to discontinue
may be said to be superfluous based on this Court's dismissal of the action by
the May 6, 2010 Order.
3. Despite Plaintiff's concession to the October 4, 2013
date, this Court finds that the Statute of limitation period expired on October
3, 2013. This difference, however, proves inconsequential for this particular
analysis.
Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:
"Volunteer Lawyers Project
What is the Volunteer Lawyers
Project?
Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.
What programs are part of the VLP? Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.
• The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.
• The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.
• The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.
How does it work?
An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."
It's hard to agree on how to raise a child even when parents are together (as I remember my childhood), but after divorce/separation, it can get even harder.
There are many articles, books, theories, etc., online and off. Here's a start with my best wishes:
The Consumer Financial Protection Bureau has set up a site of implementation aids, including compliance guides, videos, and charts, regarding the new regulations scheduled to take effect on October 3.
Note at the bottom of the site the Bureau states that the materials "do not represent official Bureau interpretations and should not be taken as legal advice."
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