The following papers numbered E40-E81 & E83-E91 read on this application by Plaintiff in this mortgage foreclosure action, for summary judgment, amendment of the caption and appointment of a referee to compute; and cross-motion by Defendant, Jose Reyes, for summary judgment, dismissing the compliant with prejudice and cancelling and discharging the mortgage of record, or in the alternative, dismissing the complaint without prejudice.

Papers Numbered

Notice of Motion-Affirmation-Exhibits-

Memorandum of Law E40-70

Notice of Cross-Motion-Affirmation-Exhibits-

Memorandum of Law E71-81

Affirmation in Opposition-Exhibits E83-87

Reply-Affirmation-Exhibits E88-91

Upon the foregoing papers it is ordered that the motion is decided as follows:

Application by Plaintiff in this mortgage foreclosure action, for summary judgment, amendment of the caption and appointment of a referee to compute is denied. Cross-motion by defendant, Jose Reyes, for summary judgment, dismissing the compliant with prejudice and cancelling and discharging the mortgage of record, or in the alternative, dismissing the complaint without prejudice is granted to the following extent.

Plaintiff commenced the instant foreclosure action to foreclose on the premises located at 55-03 Van Doren Street, Apartment 2a, Queens County, New York. On May 15, 2006, Defendant Jose Reyes, executed a note in favor of Plaintiff's predecessor-in-interest, GreenPoint Mortgage Funding in the sum of $216,000. As collateral for the note, Reyes executed a mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for GreenPoint on the same day. The mortgage was assigned several times, including the ultimate assignment to Hudson City Savings Bank, FSB, which merged with the successor-in-interest, Plaintiff M&T Bank. Reyes purportedly failed to comply with the terms of the note and mortgage by failing to make payments due on August 1, 2017 and thereafter. Reyes contests the forgoing and avers that he has been in default since 2008 and has not made any payments since 2009, when the prior foreclosure action was commenced.

A prior foreclosure action was commenced under Queens County Index Number 18055/2009 on July 10, 2009. The action was subsequently assigned the electronically-filled Index Number, 705185/2021. On March 25, 2022, Reyes filed a motion for summary judgment on the prior action, arguing that the action should be dismissed for Plaintiff's lack of standing. In support, Plaintiff pointed to deposition testimony whereby Plaintiff testified that it did not possess the original note at the time the action was filed. By letter to the Court dated May 16, 2022, the parties agreed to resolve the motion and agreed that the motion should be granted. On May 27, 2022, the Honorable Carmen R. Velasquez granted Reyes' motion for summary judgment, without opposition and with consent of the Plaintiff, dismissed and discontinued the action. On June 28, 2022, Plaintiff filed a motion requesting that the Court amend and resettle its May 27, 2022 order. On September 30, 2022, Justice Velasquez granted the motion and amended its May 27, 2022 order to delete the portions which indicated that the action was discontinued. The final decretal paragraph by the Court stated that Reyes' prior motion for summary judgment is granted, on consent, and the action is dismissed. Judgment was entered on September 19, 2024. The instant, second action, was commenced on October 10, 2023.

The cornerstone of Reyes' cross-motion is that the action is barred by the statute of limitations.

Pursuant to CPLR §213(4), an action to foreclose on a mortgage is subject to a six year statute of limitations (see CPLR 213[4]). Once a mortgage debt is accelerated, and the entire amount is due, the statute of limitations begins to run (see Bank of NY Mellon v. Alvarado, 189 AD3d 1149 [2d Dept. 2020]).

Here, the original action was filed on July 10, 2009 whereby the debt was purportedly [*2]accelerated, and thus, the statute of limitations purportedly began to run. Per Reyes, the statute of limitations therefore expired on July 9, 2015. The Court disagrees. In fact, the mortgage debt was never accelerated upon commencement of the 2009 action since it is well-settled that "service of a complaint is ineffective to constitute a valid exercise of the option to accelerate a debt where the plaintiff does not have authority to accelerate the debt or to sue to foreclose at that time (see Cohen v. Deutsche Bank Natl. Trust Co., 229 AD3d 758 [2d Dept. 2024]; 21st Mtge. Corp. v. Rudman, 201 AD3d 618 [2d Dept. 2022]). Moreover, Plaintiff is not estopped pursuant to the newly promulgated CPLR §214(4)(a) under Foreclosure Abuse Prevention Act ("FAPA") from asserting that the debt was not validly accelerated because Justice Velasquez's decision and order was issued in response to Reyes' motion for summary judgment, which was solely based on Plaintiff's lack of standing. Accordingly, Justice Velasquez's order issued May 27, 2022 was an express judicial determination dismissing the action based upon the timely interposed defense for lack of standing; it is undisputed that Plaintiff did not have standing to accelerate the debt, and thus, the debt was never validly accelerated (see CPLR §214[4][a]; see also U.S. Bank N.A. v. Pearl-Nwabueze, 218 AD3d 824 [2d Dept. 2023][finding that the Supreme Court's determination that the Plaintiff lacked standing qualified as an express judicial determination]). As a result, the statute of limitations never began to run.

Having established that the Plaintiff has standing to commence the instant action, the Court turns to the merits of the motion. In order to obtain summary judgment, movant must make a prima facie showing that it is entitled to said relief, by tendering sufficient proof to eliminate any material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). To establish a prima facie entitlement to foreclose on a mortgage, the plaintiff must demonstrate the existence of the mortgage and note, ownership of the mortgage and the defendant's default in payment (see Campaign v. Barbra, 23 AD3d 327 [2d Dept. 2005]).

Reyes argues that the motion should be denied because Plaintiff failed to serve him with a notice pursuant to RPAPL §1304 in Spanish.

RPAPL §1304(5) provides that, inter alia, "for any borrower known to have limited English proficiency, the notices required by subdivisions one and one-a of this section shall be in the borrower's native language (or a language in which the borrower is proficient), provided that the language is one of the six most common non-English languages spoken by individuals with limited English proficiency in the state of New York, based on United States census data..." (see RPAPL §1304[5]). Strict compliance with RPAPL §1304 is required (see MTGLQ Invs., L.P. v. Assim., 209 AD3d 1006 [2d Dept. 2022]; LNV Corp. v. Sofer, 171 AD3d 1033 [2d Dept. 2019]).

In support of the contention that Reyes is a native Spanish speaker with limited English proficiency, his Counsel proffers his affidavit. The affidavit is supported by an Affirmation of Interpretation. Reyes submits that he is a native Spanish speaker who reads and writes in Spanish. He can understand, speak, read, and write in English to a limited extent. Reyes further avers that Plaintiff is aware of the forgoing and has been since 2011 because he requests Spanish speaking representatives when he communicates with Plaintiff by phone. Additionally, Plaintiff sent another notice of default dated April 21, 2023. The Court notes that that notice is largely in English but contains one paragraph in Spanish on the front page as well as a separate page entirely in Spanish containing options for help.

In opposition, Plaintiff merely argues that this is the first time in fifteen years of litigation that Reyes has claimed he does not speak English proficiently. While this may be true, and while the Court finds the timing suspicious, Reyes has appropriately and sufficiently established that Spanish is his native language and that the Plaintiff was aware of the forgoing at the time of commencement. Plaintiff failed to rebut that showing in opposition (contra. Axiom Bank v. Dutan, 2018 NY Misc. LEXIS 29918 at 1-2 [NY Sup Ct Queens County 2018]).

Accordingly, the motion by Plaintiff is denied. The cross-motion by Defendant, Jose Reyes, is granted solely on the basis that Plaintiff failed to satisfy a mandatory condition precedent to commencement of this action pursuant to RPAPL §1304. The action is hereby dismissed without prejudice.

Serve a copy of this order with notice of entry upon all parties without undue delay.