Mortgage Foreclosure Action Barred by Statute of Limitations Based On Prior Involuntary Dismissal Without Prejudice

The supreme court approved the Fifth District’s decision, holding (1) when a mortgage foreclosure action is involuntarily dismissed, either with or without prejudice, the mortgagor’s right to continue to make payments on the note is reinstated, and the mortgagee’s right to seek acceleration and foreclosure based on the mortgagor’s subsequent defaults is also reinstated; and (2) accordingly, Bank was not precluded by the statute of limitations from filing a subsequent foreclosure.

Beauvais addressed the issue of whether the statute of limitations could defeat a second mortgage foreclosure action after a lender had previously exercised its right to accelerate all payments due under a loan and filed a prior foreclosure action that had been involuntarily dismissed. In December 2014, Judges Shepherd, Emas and Scales ruled.

Deutsche Bank Natl. Trust Co. Ams. v Bernal – 2017 NY Slip Op 27182. prior acceleration of the underlying debt so as to avoid application of the statute of limitations. This Court holds that, under the circumstances presented, the mortgagee did not do so and the present action is time barred.

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Therefore, we conclude that a foreclosure action for default in payments after the order of dismissal in the first foreclosure action is not barred by the statute of limitations . . . provided the subsequent foreclosure action on the subsequent defaults is brought within the limitations period. Bartram, 140 So. 3d at 1013-14. In its opinion.

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The issue addressed in bartram was whether, when an initial mortgage foreclosure action has been dismissed, and more than five years have passed since action was filed, the lender is barred by the statute of limitations from filing a new foreclosure action against the borrower.

Dismissal "with prejudice" vs. "without prejudice" explained In September 2011, the lender voluntarily dismissed without prejudice, and, in 2013, the borrower filed his action to quiet title, alleging that the five-year statute of limitations barred enforcement of the note or mortgage. 31 The trial court rejected the borrower’s assertion, holding that the lender could file a second foreclosure action.