7208 Ct Holdings LLC v U.S. Bank N.A.

Supreme Court, Kings County

Decided on July 7, 2026

Index No. 531364/2023

Aaron D. Maslow, J.

The following papers efiled on NYSCEF were used on these motions: amended complaint, notice of motion for summary judgment, affirmation in support of motion for summary judgment, memorandum of law in support of motion for summary judgment, deed, mortgage, assignment of mortgage, 2008 foreclosure summons and complaint, 2008 dismissal order, notice of cross-motion to dismiss, opposition to motion for summary judgment and cross-motion to dismiss complaint, affirmation in opposition to cross-motion to dismiss and reply to opposition to motion for summary judgment, and reply affirmation in further support of cross-motion to dismiss complaint (NYSCEF Doc Nos. 71-82, 85-100, 12-119, 121-122). Also used were NYSCEF Doc Nos. 123-124, each comprising the transcript of oral argument.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within motion by Plaintiff for summary judgment on the complaint and cross-motion by Defendant to dismiss are determined as follows.

Background

On September 6, 2005, the owners of 7208 Bergen Court, Brooklyn, NY 11234 ("Property"), Andrique Baron and Alourdes Bruny, gave a mortgage to Lend America in the principal amount of $592,000.00 which was then recorded on October 3, 2005 (see NY St Cts Elec Filing [NYSCEF] Doc Nos. 95 ¶ 6; 87). The mortgage was later assigned to U.S. Bank National Association, as Trustee for Terwin Mortgage Trust 2005-18ALT, Asset Backed Certificates, Series 2005-18ALT ("Defendant") through an assignment of mortgage dated July 31, 2008, which was recorded on August 13, 2008 (see NYSCEF Doc No. 88). Defendant commenced a mortgage foreclosure action to accelerate the mortgage on or about July 22, 2008 (see NYSCEF Doc No. 89). This action was dismissed by Supreme Court, Kings County, for lack of standing on November 23, 2015, since Defendant commenced the action before it had authority over the debt (see NYSCEF Doc No. 90).

On or around August 23, 2018, Alourdes Bruny passed away (see NYSCEF Doc No. 91), and the following year, on September 25, 2019, the borrower Andrique Baron transferred Alourdes' interest in the Property to himself via a deed which was recorded on October 4, 2019 (see NYSCEF Doc No. 92). On September 23, 2023, Robert Bruny, on behalf of the Estate of Alourdes Bruny, transferred Alourdes Bruny's interest in the Property to 7208 Ct Holdings LLC ("Plaintiff") via a quitclaim deed (see NYSCEF Doc No. 93). Based on the record, this deed has not been recorded (see id.) On October 27, 2023, Plaintiff commenced this instant quiet title action seeking an order that Defendant is barred from all claims to interest in the Property superior to Plaintiff's interests and a judgment declaring the note and mortgage unenforceable (see NYSCEF Doc No. 95 ¶ 27).

On April 16, 2026, Plaintiff filed a motion for summary judgment, alleging that the mortgage on the Property was unenforceable and should be cancelled, with Plaintiff retaining sole ownership of the property (see NYSCEF Doc Nos. 71-72). In opposition, on May 22, 2026, Defendant filed a cross-motion to dismiss, alleging (1) that the action is premature because the loan was not previously accelerated and (2) that Plaintiff did not retain proper ownership of the property to commence the action (see NYSCEF Doc No. 86 ¶¶ 4-5, 41). During oral argument, the Court narrowed these motions to one issue: whether CPLR 213 (4) (b) should be interpreted based on the plain meaning of the statue, or whether the Court should follow Appellate Division precedent that permits an additional exception to the statute, which would allow the lender to claim that the statute of limitations did not start running where the lender did not have authority to accelerate the loan in the initial action due to a lack of standing (see NYSCEF Doc No. 123 at 21, lines 8-13).

Movant's Contentions

Plaintiff alleges that the loan was accelerated by the 2008 mortgage foreclosure action, and thus the statute of limitations expired on July 22, 2014, rendering it eligible to declare the mortgage unenforceable under RPAPL 1501 (4) (see NYSCEF Doc No. 74 at 5). Plaintiff relies on the Foreclosure Abuse Prevention Act ("FAPA"), which amended CPLR 213 (4) to include a provision which prevents a lender from ever claiming a prior loan acceleration is invalid "unless the prior action was dismissed based on an expressed judicial determination, made upon a timely [*2]interposed defense, that the instrument was not validly accelerated" (CPLR 213 [4] [b] [emphasis added]); see NYSCEF Doc No. 74 at 2). Plaintiff argues that the Legislature included the phrase "made upon a timely interposed defense" purposefully, and that the plain meaning of the phrase points to the fact that the exception is narrow, and only applies when an action is dismissed as a result of a defense raised by one of the parties to the action (see NYSCEF Doc No. 74 at 6).

Plaintiff further contends that since the 2008 mortgage foreclosure action was not dismissed as a result of a "timely interposed defense" raised by a party, and it was instead dismissed by the Court for lack of standing, Defendant is estopped from claiming the loan was not previously accelerated (see id. at 7). Thus, Plaintiff asserts that the statute of limitations began to run on July 22, 2008, and expired on July 22, 2014, and therefore this current action to quiet title should be permitted pursuant to RPAPL 1501 (4) (see id.).

Opposition

Defendant refutes Plaintiff's claim that the loan was accelerated by the commencement of the 2008 mortgage foreclosure action, and instead argues that the statute of limitations never started running when the initial action was filed because the original action was dismissed by the Court for lack of standing (see NYSCEF Doc No. 86 ¶ 39). Defendant relies on the Appellate Division's consistent holding, even after the passing of FAPA, that if the party that brought the mortgage foreclosure action did not have the authority to accelerate the loan, and the action was dismissed as a result for lack of standing, then the loan is not accelerated and the statute of limitations does not begin to run (see id. ¶¶ 32-34, citing Reinman v Deutsche Bank Natl. Tr. Co., 215 AD3d 704 [2d Dept 2023]; 21st Mtge. Corp. v Rudman, 201 AD3d 618 [2d Dept 2022]). Therefore, since the initial 2008 action was dismissed by the Court for lack of standing, Defendant contends that the statute of limitations never began to run (see NYSCEF Doc No. 86 ¶ 32). Thus, Defendant asserts that this current action for quiet title should be dismissed under CPLR 3211 (a) (1) (dismissal based on documentary evidence) and (7) (dismissal for lack of a cause of action) (see id. ¶¶ 28-29).

Discussion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the [*3]failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 314 [2024]).

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Shah v Exxis, Inc., 138 AD3d 970, 971 [2d Dept 2016]). However, a motion to dismiss "may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571 [2005], quoting Held v Kaufman, 91 NY2d 425, 430-31 [1998] [internal quotation marks omitted]). When examining a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court should grant the non-moving party "the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Shah, 138 AD3d at 570-571).

RPAPL 1501 (4) provides:

Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor's lien, has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons . . . to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom. . . .

Under CPLR 213 (4), an action to foreclose on a mortgage of real property must be commenced within a six-year statute of limitations period. "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt. An acceleration of a mortgage debt can occur when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due." (Wells Fargo Bank, N.A. v Lefkowitz, 171 AD3d 843, 844 [2d Dept 2019] [internal quotation marks and citations omitted].) "A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint" (Nationstar Mortg., LLC v Weisblum, 143 AD3d 866, 868 [2d Dept 2016]).

Generally, under FAPA, a lender is estopped from claiming a prior loan acceleration is invalid so as to prevent the commencement of the statute of limitations "unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (CPLR 213 [4] [b]; see also GMAT Legal Tit. Tr. 2014-1 v Kator, 213 AD3d 915, 917 [2d Dept 2023] [holding that an original foreclosure action that was voluntarily discontinued started the statute of limitations]; see also [*4]Bank of NY Mellon v DeMatteis, 222 AD3d 1 [2d Dept 2023] [holding that dismissal of original foreclosure action for lack of personal jurisdiction and failure to prosecute still resulted in commencement of the statute of limitations on the entire debt]).

However, the Appellate Division has also consistently held, even after the enactment of FAPA, that if a foreclosure action is dismissed or discontinued by an express judicial determination because the plaintiff lacked standing to commence the action, specifically due to a lack of authority to accelerate the debt, the statute of limitations is deemed to have never begun to run (see Reinman, 215 AD3d at 706-07; see also Cohen v Deutsche Bank Natl. Tr. Co., 229 AD3d 758 [2d Dept 2024] [holding that the debt was never accelerated since Supreme Court dismissed the original action after trial for lack of standing]; U.S. Bank N.A. v Marrero, 221 AD3d 631, 632 [2d Dept 2023] [holding that loan is not accelerated by commencement of action when there is "judicial determination that the plaintiff lacked standing"]; Caprotti v Deutsche Bank Natl. Tr. Co., 220 AD3d 1126, 1128-29 [3d Dept 2023] [holding that lending party is not estopped from asserting that loan was not accelerated when prior actions were judicially dismissed for lack of standing]). Although not explicitly addressing the phrase "made upon a timely interposed defense," the Third Department in MTGLQ Invs., LP v Carmody (242 AD3d 1388 [3d Dept 2025]) held that despite FAPA's amendment to CPLR 213 [4], a lending party is still able to assert that a loan was not validly accelerated, and therefore the statute of limitations did not begin to run, if there was a judicial dismissal of a prior foreclosure action for lack of standing:

Although Supreme Court, in dismissing the first action, did not specifically state that "the instrument was not validly accelerated" (CPLR 213 [4] [a]), its dismissal of that action for lack of standing is substantively the same thing (see Cohen v Deutsche Bank Natl. Trust Co., 229 AD3d 758, 760-761 [2d Dept 2024]; Reinman v Deutsche Bank Natl. Trust Co., 215 AD3d 704, 707 [2d Dept 2023]) and defendant's argument concerning the precise words used by Supreme Court amounts to little more than semantics (id. at 1391-1392).

In light of the overwhelming precedent from the Appellate Division, even after the passage of the FAPA amendment to CPLR 213 (4), it is clear that in a quiet title action predicated on an alleged expiration of the statute of limitations to foreclose on a mortgage, lenders can claim that a mortgage loan was never validly accelerated by the commencement of a mortgage foreclosure action which took place years earlier in two instances: (1) when the prior action was dismissed "by an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated" (see CPLR 213 [4] [b]), and (2) when the earlier action to foreclose was judicially dismissed because the plaintiff therein lacked standing to commence the action (see Reinman, 215 AD3d at 706-07; MTGLQ Invs., LP, 242 AD3d at 1390-1391). If the statute of limitations were triggered whenever an unauthorized entity or individual claiming ownership of a loan commenced a foreclosure action, any stranger to a loan could file a meritless lawsuit without the true owner's consent which would later, upon the expiration of the statute of limitations, unfairly subject the rightful loan owner to subsequent quiet title actions and potentially extinguish its rights through no fault of its own (see RPAPL 1501 [4]).

Here, the original foreclosure action in this case, which was filed on July 22, 2008 (see NYSCEF Doc No. 89), was dismissed for lack of standing because Defendant did not have ownership of the debt until July 31, 2008 (see NYSCEF Doc No. 88), and therefore Defendant did not have authority to accelerate the loan (see Nationstar Mortg., LLC, 143 AD3d at 868). Since the original foreclosure action was dismissed for lack of standing by an express judicial determination (see NYSCEF Doc No. 90) and Defendant took no later action once it had authority over the debt, the loan was never accelerated by Defendant (see U.S. Bank N.A., 221 AD3d at 632). Therefore, the statute of limitations did not begin running when the original action was filed on July 22, 2008 (see id.).^FN1 Accordingly, the statute of limitations had not expired at the time of commencement of this action on October 24, 2023, and Plaintiff lacks a cause of action to commence an action to secure cancellation of the mortgage and quiet title (see RPAPL 1501 [4]).

Conclusion

Since Plaintiff lacks a cause of action to secure cancellation of the mortgage and quiet title pursuant to RPAPL 1501 (4), as supported by the documentary evidence presented in the record, Defendant is entitled to dismissal as a matter of law pursuant to CPLR 3211 (a) (1) and (7) (see Goldman, 5 NY3d at 571).

It is hereby ORDERED that Plaintiff 7208 Ct Holdings LLC's motion for summary judgment (Motion Seq. No. 4) is DENIED, and Defendant U.S. Bank National Association, as Trustee for Terwin Mortgage Trust 2005-18ALT, Asset Backed Certificates, Series 2005-18ALT's cross-motion to dismiss (Motion Seq. No. 5) is GRANTED.