Opinion
Index No. 805874/2022E
10-28-2022
DEBORAH GENOVESE, as Executor of the ESTATE OF JOSEPH GENOVESE, Plaintiff, v. NATIONSTAR MORTGAGE LLC d/b/a Champion Mortgage Company, Defendants.
Unpublished Opinion
Present: HON. KENNETH L. THOMPSON, JR. Justice
DECISION AND ORDER
KENNETH L. THOMPSON JR., J.S.C.
The following papers numbered 1 to read on this motion to dismiss
No On Calendar of July 29, 2022 PAPERS
Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed---------motion sequence #1 NYSCEF
Answering Affidavit and Exhibits------------------------------------------------------motion sequence #1 NYSCEF
Replying Affidavit and Exhibits------------------------------------------------------motion sequence NYSCEF
Memorandum of Law-------------------------------------------------------------------------motion sequence#! NYSCEF
Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Defendant moves pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss this action based upon documentary evidence and for failure to state a cause of action. Pursuant to RPAPL 1501(4) plaintiff seeks to cancel and discharge a mortgage held by defendant, on grounds that the statute of limitations has run. The mortgaged property, (hereinafter, Property), is in Bronx County.
In a decision and order of this Court dated April 7, 2017, a Judgment of Foreclosure and Sale against the plaintiff s Property, was vacated and the herein defendant's foreclosure complaint that accelerated the monthly mortgage payments was dismissed on grounds that the estate of decedent/mortgagor, Joseph Genovese, was not served. Consequently, the action was a legal nullity.
Greenpoint served but did not substitute the executor of decedent's estate as a party in the 2008 action (see CPLR 1015 [a]). As such, the court lacked jurisdiction over the 2008 action, and that action was a legal nullity from its inception (see Beneficial Homeowner Serv. Corp, v Heirs at Large of Ramona E. Thwaits, 185 A.D.3d 1126, 1129
[2020]; Wells Fargo Bank, N.A. v Baymack, 176 A.D.3d 905, 906 [2019]; Citigroup Global Mkts. Realty Corp, v LaGreca, 167 A.D.3d 842, 843 [2018]). It follows that the 2008 action, a legal nullity, did not trigger the statute of limitations.(U.S. Bank Nat'l Ass'n v. Stewart, 187 A.D.3d 1330, 1332 [3rd Dept 2020]).
The commencement of the dismissed foreclosure action that is a legal nullity, did not trigger the running statute of limitations under RPAPL 1501(4), and consequently, the plaintiffs complaint seeking to cancel and discharge the mortgage must be dismissed.
Plaintiff attempts to distinguish Stewart with a quote from GMAT Legal Title Tr. 2014-1, U.S. Bank Nat'l Ass'n v. Wood, 192 A.D.3d 1285, 1286-87 [3rdDept 2021 ], which states "'[t]he fact of election [to accelerate should not be confused with the notice or manifestation of such election'" (id. at -, 2021 NY Slip Op 01090, *2, quoting Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476 [1932])." The Third department was referring to a letter threatening acceleration that is "merely an expression of future intent that fell short of an actual acceleration." "[T]he letter did not seek immediate payment of the entire, outstanding loan, but referred to acceleration only as a future event, indicating the debt was not accelerated at the time the letter was written." Id. at 1287. GMAT has no relevance to the facts of this action, where a complaint accelerating a mortgage is a legal nullity. Likewise, Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472 [1932], is inapposite as It does not concern a purported acceleration that is part of a complaint that is a legal nullity.
Accordingly, defendant, Nationstar Mortgage LLC d/b/a Champion Mortgage Company's motion to dismiss is granted and the summons and complaint is hereby dismissed.
The foregoing constitutes the decision and order of the Court.
The Clerk is directed to enter judgment accordingly.