Friday, September 30, 2016

MOTION TO DISMISS RPAPL ARTICLE 15 ACTION SEEKING DECLARATION MORTGAGE INVALID DENIED

Plaintiffs owners commenced this RPAPL Article 15 suit seeking judgment declaring the mortgage of record held by defendant was invalid and unenforceable and barred by expiration of the six-year statue of limitations. Defendant moved to dismiss the complaint based on a defense of documentary evidence and failure to state a cause of action on the grounds plaintiffs' hardship affidavit served to re-start the statute of limitations and defendants stopped the limitations period running upon revocation of its election to accelerate plaintiffs' loan by its de-acceleration letter. The court found defendant improperly sought to rely on the de-acceleration letter as a letter was not documentary evidence, nor was the court persuaded it conclusively established a defense. The hardship affidavit also failed as it did not conclusively establish a defense to this Article 15 action—it did not conclusively establish the foreclosure action was not barred by the statute of limitations. As the affidavit did not utterly refute plaintiffs' claim that any effort by defendant to foreclose plaintiffs' underlying mortgage obligation would be barred by the limitations period, and defendant failed to establish a defense warranting dismissal of the complaint. Defendant's motion was denied.

The full text decision can be found here: http://www.newyorklawjournal.com/id=1202766377597




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