In a recent case before Justice Salvatore Modica, who sits in a real estate Supreme Court part, in Queens County, Persaud brought a lawsuit under Real Property Actions and Proceedings Law Section 1501(4) to cancel a mortgage on his home. In this proceeding Persaud moved for summary judgment. He asked that the mortgage on his home be extinguished and he be discharged from all obligations under the underlying promissory note executed in connection with this mortgage.
Motion Granted
Justice Modica granted Persaud’s motion. He found that she met her prima fascie obligation of showing entitlement to a judgment. Persaud had established the underlying foreclosure action by US Bank had been originally commenced in December 2009 and in March of 2011 the foreclosure lawsuit was dismissed. A second foreclosure lawsuit was commenced in 2017. This foreclosure lawsuit was barred by the 6 year statute of limitations.
In Persaud’s lawsuit against US Bank under Real Property Actions and Proceedings Law Section 1501(4), US Bank was unable to dispute Persaud’s showing there was no genuine issue of fact with regard to the 6 year statute of limitations having expired. Persaud was entitled to summary judgment. Under Real Property Actions and Proceedings Law Section 1501(4), a homeowner is entitled to having a mortgage cancelled as a lien on his or her property if the applicable statute of limitations regarding commencement of a suit has expired. In this case more than 6 years has passed since Persaud had defaulted on making payments on her mortgage. Therefore, US Bank did not have the right to bring another foreclosure action against Persaud. Justice Modica granted Persaud’s motion to cancel, discharge and remove the mortgage as a lien on her property.
Conclusion
US Bank and their attorneys failed to follow the law and as a result Persaud ended up with a free house!
Elliot S. Schlissel is a foreclosure lawyer representing homeowners throughout the Metropolitan New York area for more than 45 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.
