Failure to State Statute of Limitations Defense in Answer Waives The Defense

foreclosure defense lawyersWells Fargo Bank brought a foreclosure legal action in the Supreme Court of Bronx County. The case was before Justice Mary Ann Brigantti. The defendant in the case, Ali, brought a motion to dismiss Wells Fargo’s Complaint. The motion claimed the residential foreclosure lawsuit was time barred.

The bank had initiated the foreclosure case with an Order of Reference entered in its favor. It had accelerated the mortgage when Ali failed to make payments on the loan. Ali’s moving papers stated the new foreclosure proceeding was not initiated until almost a year after the six year statute of limitations to bring a new foreclosure lawsuit had expired.

Statute of Limitations Defense Waived?

The bank claimed Ali waived the statute of limitations as a defense because he had not plead this defense in his answer. In addition, Wells Fargo’s attorneys claimed the initial acceleration of the mortgage (at the time of the accelerating of the mortgage the statute of limitations begins to run) may not have been valid because at the time it took place, Wells Fargo may not have had standing to commence the lawsuit. This was because the assignment was executed sending the mortgage to Wells Fargo after the lawsuit was initiated. The bank also claimed they revoked the prior acceleration of the loan by voluntarily discontinuing the prior lawsuit without prejudice in 2012.

Judge Brigantti denied Ali’s motion to dismiss. Her decision stated he waived the statute of limitations as a defense because he did not plead it as a defense in his Answer to the bank’s Complaint. In addition, the judge stated Ali did not establish the bank properly accelerated the debt in the prior lawsuit which was discontinued in 2007. Since Ali didn’t prove the acceleration of the debt he cannot argue the statute of limitations was triggered.

Conclusion

It is important to allege a statute of limitations defense in the event there is any possibility six years has elapsed from the initial acceleration of the note and mortgage. The statute of limitations is an extremely powerful defense. This is because it is a complete defense to bringing a lawsuit on the note. If the statute of limitations has expired, the bank’s lawsuit will be dismissed by the court if an appropriate motion is made.foreclosure lawyer on Long Island and New York City

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