Opinion
No. 703341/21 Motion Seq. No. 3
07-28-2023
US Bank National Association, not in its individual capacity but as trustee for the RMAC Trust Series 2016-CTT, Plaintiff, v. Gregory T. Johns, et. al., Defendants.
Unpublished Opinion
Motion Date: 6/26/23
HON ORABLE KEVIN J. KERRIGAN JUSTICE
The following papers numbered E96-E107, E111-E129 &E131-E136 read on this motion by defendant, Gregory T. Johns, for an order to renew and reargue.
Papers Numbered
Notice of Motion-Affirmation-Exhibits.............. E96-107
Memorandum of law in Opposition-Exhibits........... E111-129
Reply-Exhibits..................................... E131-136
Upon the foregoing papers it is ordered that the motion is decided as follows: Motion by defendant, Gregory T. Johns, for an order to renew and reargue is denied.
Defendant, Gregory T. Johns moves to renew the orders issued by this Court and dated February 15, 2022 and January 24, 2023, pursuant to CPLR 2221 due to a change of law set forth in the newly enacted provisions of the Foreclosure Abuse Prevention Act (FAPA) and pursuant to CPLR 205-a.
CPLR 2221(e) (2) provides that a motion for renew may be appropriate where if there has been "a change in law that would change the prior determination" (see CPLR 2221(e) (2)).
On December 30, 2022, Governor Kathy Hochul signed FAPA into law. Per movant, the law was a direct response to the Court of Appeals decision in Freedom Mortg. Corp. V. Engel, which seemingly permitted lenders to restart foreclosure actions after the statute of limitations expired (see Freedom Mortg. Corp. V. Engel, 37 N.Y.926 [2021])- After its passage, the legislature amended and codified various statutes. CPLR 205-a was created and is entitled "termination of certain actions related to real property", and which is more stringent than CPLR 205(a). CPLR 203, entitled "method of computing periods of limitation generally," was modified to add (h) . RPAPL 1301, entitled "separate action for mortgage debt" was modified to add (4).
The most significant of the forgoing modifications is the newly promulgated CPLR 205-a, which provides that lenders may only take advantage of the "saving statute" if the matter was terminated in any manner other than: voluntarily discontinue the action, failure to obtain personal jurisdiction over the defendant, dismissal for any form of neglect including for violation of court rules or individual part rules, failure to comply with scheduling orders, by default due to nonappearance for conference or at calendar call, failure to submit an order or judgment, or upon a final judgment upon the merits. If a foreclosure action is dismissed for any of the forgoing reasons, CPLR 205-a cannot be used to revive it and extend the limitations period.
Here, Hon. Salvatore J. Modica issued an order dated July 27, 2015, dismissing the action due to neglect. Thereafter, Plaintiff re-commenced this action pursuant to CPLR 205(a). This Court denied Defendant Johns motion for an order to dismiss by order dated February 10, 2022, and subsequently issued an order of reference dated January 24, 2023. Plaintiff argues in the instant motion that Judge Modica's order issued July 27, 2015, dismissing the action was dispositive and the subsequent orders issued by this Court are now rendered improper in light of newly enacted FAPA and CPLR 205-a.
The issue for the Court to determine is whether FAPA applies retroactively, and thus, renders this action time barred. Section 10 of FAPA provides that the act "shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced" (see Foreclosure Abuse Prevention Act §10). The issue of whether §10 should be applied retroactively has not yet been heard by the Court of Appeals or any of the Appellate Divisions. However, several Supreme Courts across the State have heard the issue and found the answer to be no (see Wilmington Sav. Fund Socv., FSB v. Hack, 2023 NY Slip Op 31524 [U] [Queens Cty., 2023]; U.S. Bank Trust, N.A. v. Leonardo, 2023 N.Y. Mise. LEXIS 2871 [Nassau Cty. 2023]; see United States Bank Trust NA v. Miele, 2023 NYLJ LEXIS 1580 [Westchester Cty. 2023]; see HSBC Bank United State NA v, Besharat, 2023 NYLJ LEXIS 1254 [Putnam Cty. 2023]).
This Court agrees, in that permitting retroactive application would destroy rights already accrued by the Plaintiff (see HSBC Bank United State NA, 2023 NYLJ LEXIS 1254).
Thus, while clarification of an existing law or promulgation of a new law may, at times, warrant renewal, it does not here. Retroactive application in this instance would deprive the mortgagee of their right to enforce their claim against the mortgagor in violation of its federal and state constitutional rights to due process of law.
Accordingly, the motion is denied.