The statute of limitations for bringing a foreclosure lawsuit in the State of New York is six years from the time the mortgage is accelerated by the bank (called due) or from the initiation of the foreclosure legal action, whichever occurs first.
The real estate crisis in America started many years ago. Foreclosure defense attorneys are now coming across cases initiated by banks where the statute of limitations defense bars the banks from moving forward with their foreclosure case. It should be noted the statute of limitations is a defense to the foreclosure lawsuit. However, it does not remove the bank’s lien from the property. What you end up with in a case where the statute of limitations defense is effectively plead, a bank is unable to collect on their mortgage but their mortgage still remains a lien on the property preventing it from being sold without it being repaid.
Acceleration of the Mortgage
A mortgage requires that a homeowner make payments over a period of time. The usual length of mortgages are 15 or 30 years. During the period the homeowner is making payments, all they owe each month is the amount of their payment. The acceleration of the loan involves the bank usually sending a letter to the homeowner saying it is calling the entire balance of the mortgage due and owing. This means, if the homeowner sends a payment in the correct monthly amount to the bank they will usually reject it claiming they want the entire mortgage paid in a lump sum payment. It should be noted however, if the homeowner is several months behind and pays all the arrears, the bank will usually reinstate the mortgage.
After the bank sends the acceleration letter or initiates a foreclosure lawsuit, if the homeowner takes action to acknowledge the debt, it can start the statute of limitations running all over again.
Conclusion
If there is any possibility the bank can be barred by moving forward with a foreclosure, it is extremely important the statute of limitations be plead as an affirmative defense in the homeowners’ Answer to the Summons and Complaint.
