| U.S. Bank N.A. v Gordon |
| 2018 NY Slip Op 01349 [158 AD3d 832] |
| February 28, 2018 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association, as Trustee of J.P. MorganAcquisition Corp. 2006-FRE2, Asset Backed Pass-Through Certificates, Series 2006-FRE2,Appellant, v Marsha Rose Gordon, Also Known as Marsha Rose-Gordon, Respondent,et al., Defendants. |
McGlinchey Stafford, PLLC, New York, NY (Mitra Paul Singh and Brian McGrath ofcounsel), for appellant.
Hanna & Vlahakis, Brooklyn, NY (Mark Hanna of counsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Velasquez, J.), dated September 17, 2015, which granted that branch of themotion of the defendant Marsha Rose Gordon which was pursuant to CPLR 3211 (a) (5) todismiss the complaint insofar as asserted against her as time-barred.
Ordered that the order is reversed, on the law, with costs, and that branch of the motion ofthe defendant Marsha Rose Gordon which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against her as time-barred is denied.
In November 2005, the defendant Marsha Rose Gordon borrowed $412,000 and executed apromissory note evidencing her debt in favor of Fremont Investment & Loan. The note wassecured by a mortgage on real property located in Brooklyn. Rose Gordon was required to makemonthly payments under the terms of the note, but the note and mortgage gave the holder of thenote the option of electing to accelerate the entire debt upon Rose Gordon's default.
In 2007, less than two years after the loan was issued, an action to foreclose the mortgage(hereinafter the 2007 action) was commenced against Rose Gordon by "U.S. Bank NationalAssociation c/o Chase Home Finance, LLC 10790 Rancho Bernardo Road San Diego, CA92127" (hereinafter the prior plaintiff). The complaint in the 2007 action alleged that RoseGordon had defaulted by failing to make a required monthly payment when it became due, andstated that the plaintiff in that action was electing to call due the entire amount secured by themortgage.
In 2008, an order of reference was issued to the prior plaintiff in the 2007 action. However,in 2011, Rose Gordon was granted leave to serve an answer. In her answer, Rose Gordonasserted that the prior plaintiff lacked standing to commence that action. Thereafter, in responseto a motion to compel responses to outstanding discovery requests, Rose Gordon cross-moved,inter alia, to dismiss the 2007 complaint on the ground that the prior plaintiff lacked standing.The prior plaintiff subsequently moved for leave to amend the caption to reflect U.S. Bank N.A.,as Trustee of J.P. Morgan Acquisition Corp. 2006-FRE2, Asset Backed Pass-ThroughCertificates, Series 2006-[*2]FRE2, as successor plaintiff.
In an order dated May 16, 2013, the Supreme Court determined that the prior plaintiff wasnot the holder of the note when the 2007 action was commenced. Accordingly, the court grantedthat branch of Rose Gordon's cross motion which was to dismiss the 2007 complaint for lack ofstanding. The court denied, as academic, that branch of the prior plaintiff's motion which soughtleave to amend the caption to reflect the successor plaintiff.
The instant action to foreclose the mortgage was commenced on October 22, 2013, by U.S.Bank National Association, as Trustee for J.P. Morgan Acquisition Corp. 2006-FRE2, AssetBacked Pass-Through Certificates, Series 2006-FRE2. The complaint (hereinafter the 2013complaint) alleged that the mortgage had been assigned to the plaintiff in 2009, and that it wasthe current holder of both the note and the mortgage. The 2013 complaint further alleged thatRose Gordon had defaulted by failing to make monthly payments beginning on March 1, 2007,and that the plaintiff was exercising its option to accelerate the debt and call due the entireamount secured by the mortgage.
Rose Gordon thereafter submitted a pre-answer motion, inter alia, to dismiss the 2013complaint on the ground that the action was barred by the applicable statute of limitations. Insupport of her motion, Rose Gordon submitted, among other things, a copy of the 2007complaint. Rose Gordon argued that the 2007 complaint "serve[d] to demonstrate that themortgage was accelerated as of . . . March 1, 2007."
The plaintiff opposed Rose Gordon's motion, inter alia, to dismiss the 2013 complaint. Theplaintiff argued that the statute of limitations did not begin to run on the entire mortgage debtuntil that debt was accelerated and that Rose Gordon's motion should be denied because theaction was timely commenced. The plaintiff further argued that, pursuant to CPLR 205, it wasentitled to commence this action within six months after the dismissal of the 2007 action.
In the order appealed from, the Supreme Court determined that "the [2007] complaint. . . demonstrate[d] that the mortgage was accelerated as of . . . March1, 2007." Accordingly, the court granted that branch of Rose Gordon's motion which was todismiss the 2013 complaint as time-barred. The court did not address the arguments advanced bythe plaintiff in opposition to Rose Gordon's motion.
"A party may move for judgment dismissing one or more causes of action asserted againsthim [or her] on the ground that . . . the cause of action may not be maintainedbecause of . . . [a] statute of limitations" (CPLR 3211 [a] [5]). As relevant here, "anaction upon a bond or note, the payment of which is secured by a mortgage upon real property, orupon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interesttherein" "must be commenced within six years" (CPLR 213 [4]).
In resolving a motion to dismiss pursuant to CPLR 3211 (a) (5), the court must accept thefacts as alleged in the complaint as true, and accord the plaintiff the benefit of every possiblefavorable inference (see Faison vLewis, 25 NY3d 220, 224 [2015]; Ford v Phillips, 121 AD3d 1232, 1234 [2014]; 6D Farm Corp. v Carr, 63 AD3d903, 905 [2009]; see also Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "To dismissa cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicablestatute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that thetime within which to commence the action has expired" (Stewart v GDC Tower at Greystone, 138 AD3d 729, 729 [2016];see Campone v Panos, 142 AD3d1126, 1127 [2016]). "If the defendant satisfies this burden, the burden shifts to the plaintiffto raise a question of fact as to whether the statute of limitations was tolled or otherwiseinapplicable, or whether the plaintiff actually commenced the action within the applicablelimitations period" (Barry v CadmanTowers, Inc., 136 AD3d 951, 952 [2016]; see Stewart v GDC Tower atGreystone, 138 AD3d at 730).
Here, as the plaintiff correctly contends, Rose Gordon failed to sustain her initial burden ofdemonstrating, prima facie, that the action was untimely. "The time within which an [*3]action must be commenced, except as otherwise expresslyprescribed, shall be computed from the time the cause of action accrued to the time the claim isinterposed" (CPLR 203 [a]; see HahnAutomotive Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770 [2012])."With respect to a mortgage payable in installments, separate causes of action accrue[ ] for eachinstallment that is not paid, and the statute of limitations begins to run, on the date eachinstallment becomes due" (Wells FargoBank, N.A. v Burke, 94 AD3d 980, 982 [2012]; see Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753, 754 [2011];Loiacono v Goldberg, 240 AD2d 476, 477 [1997]; Pagano v Smith, 201 AD2d632, 633 [1994]). However, "even if a mortgage is payable in installments, once a mortgage debtis accelerated, the entire amount is due and the Statute of Limitations begins to run on the entiredebt" (EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 [2001]; see Wells FargoBank, N.A. v Burke, 94 AD3d at 982; Lavin v Elmakiss, 302 AD2d 638, 639 [2003];Zinker v Makler, 298 AD2d 516, 517 [2002]). "Where the acceleration of the maturity ofa mortgage debt on default is made optional with the holder of the note and mortgage, someaffirmative action must be taken evidencing the holder's election to take advantage of theaccelerating provision, and until such action has been taken the provision has no operation"(Wells Fargo Bank, N.A. v Burke, 94 AD3d at 982-983; see Esther M. Mertz Trust vFox Meadow Partners, 288 AD2d 338, 340 [2001]; Ward v Walkley, 143 AD2d 415,417 [1988]; see also 1-5 Bergman on New York Mortgage Foreclosures§ 5.11 [2] [2017]).
Here, Rose Gordon contends, and the Supreme Court concluded, that the allegationscontained in the 2007 complaint served to demonstrate that the mortgage was accelerated onMarch 1, 2007, the date of Rose Gordon's alleged default in failing to make her required monthlypayments. However, inasmuch as the acceleration provisions in the note and mortgage weremade optional at the discretion of the holder and were not automatically triggered upon RoseGordon's default (see generally 1-4 Bergman on New York Mortgage Foreclosures§ 4.03 [2017]), the allegation in the 2007 complaint that Rose Gordon defaulted onMarch 1, 2007, did not constitute evidence that the mortgage was accelerated on that date (seeWells Fargo Bank, N.A. v Burke, 94 AD3d at 982-983; Esther M. Mertz Trust v FoxMeadow Partners, 288 AD2d at 340; Ward v Walkley, 143 AD2d at 417).
More relevant to this issue is the fact that the 2007 complaint contained an allegationpurporting to accelerate the debt. It is true that, under certain circumstances, the commencementof a foreclosure action may be sufficient to put the borrower on notice that the option toaccelerate the debt has been exercised (see Wells Fargo Bank, N.A. v Burke, 94 AD3d at983; EMC Mtge. Corp. v Smith, 18AD3d 602, 603 [2005]; Clayton Natl. v Guldi, 307 AD2d 982, 982 [2003];Arbisser v Gelbelman, 286 AD2d 693, 694 [2001]). Here, however, it had already beendetermined that the prior plaintiff in the 2007 action did not have standing to commence thataction because it was not the holder of the note and mortgage at the time that the 2007 action wascommenced. Accordingly, service of the 2007 complaint was ineffective to constitute a validexercise of the option to accelerate the debt, since the prior plaintiff did not have the authority toaccelerate the debt or to sue to foreclose at that time (see Wells Fargo Bank, N.A. vBurke, 94 AD3d at 983; EMC Mtge.Corp. v Suarez, 49 AD3d 592, 593 [2008]). As such, Rose Gordon's submission of the2007 complaint was insufficient, as a matter of law, to demonstrate when the debt wasaccelerated or when the cause of action accrued (see Wells Fargo Bank, N.A. v Burke, 94AD3d at 983; EMC Mtge. Corp. v Suarez, 49 AD3d at 593).
Inasmuch as Rose Gordon made no other argument and submitted no other materials to showthat the option to accelerate the maturity of the loan was validly exercised in accordance with theterms of the note and mortgage, she failed, as a matter of law, to establish her prima facie burdenof demonstrating "that the time within which to commence the action [had] expired" (Stewartv GDC Tower at Greystone, 138 AD3d at 729). Under such circumstances, the SupremeCourt should have denied that branch of Rose Gordon's motion which was pursuant to CPLR3211 (a) (5) to dismiss the complaint insofar as asserted against her as time-barred.[FN*]
[*4] Moreover, even if Rose Gordon had demonstrated that theplaintiff in the 2007 action validly accelerated the debt, her motion should have neverthelessbeen denied as a matter of law. In opposition to Rose Gordon's motion, the plaintiff argued,among other things, that it was entitled to commence this action within six months after thedismissal of the 2007 action pursuant to CPLR 205. The Supreme Court neglected to considerthis meritorious argument.
CPLR 205 (a) provides that "[i]f an action is timely commenced and is terminated in anyother manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over thedefendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgmentupon the merits, the plaintiff . . . may commence a new action upon the sametransaction or occurrence or series of transactions or occurrences within six months after thetermination provided that the new action would have been timely commenced at the time ofcommencement of the prior action and that service upon defendant is effected within suchsix-month period."
Here, the requirements of CPLR 205 (a) have been satisfied. It is uncontested that the 2013action would have been timely commenced in 2007, that Rose Gordon was served within thesix-month period after the 2007 action was dismissed, and that the 2013 action is based on thesame occurrence as the 2007 action, namely, the default on the payment obligations under thenote and mortgage (see CPLR 205 [a]). Further, it is undisputed that the dismissal of theprior action was not based upon a voluntary discontinuance, lack of personal jurisdiction, neglectto prosecute the action, or a final judgment on the merits (see CPLR 205 [a]).
In addressing the plaintiff's CPLR 205 (a) argument, Rose Gordon merely asserted that theplaintiff in this action is not the same entity as the plaintiff in the 2007 action. In response, theplaintiff noted that "the plaintiff in the instant action is seeking to assert the same rights as theplaintiff from the 2007 action. Indeed, both plaintiffs were and are U.S. Bank NationalAssociation." The plaintiff further argued that "the plaintiff in the instant action is merelyappearing in a capacity (as a trustee) different from its capacity in the 2007 action, but theidentity of the party seeking redress has remained the same."
Although, as a general matter, only the plaintiff in the original action is entitled to thebenefits of CPLR 205 (a), the Court of Appeals has nevertheless recognized an exception to thisgeneral rule under certain circumstances where the plaintiff in the new action is seeking toenforce "the rights of the plaintiff in the original action" (Reliance Ins. Co. v PolyVision Corp., 9 NY3d 52, 57 [2007];see George v Mt. Sinai Hosp., 47 NY2d 170, 179 [1979]). More specifically to the factshere, this Court has recently held that "a plaintiff in a mortgage foreclosure action which meetsall of the other requirements of the statute is entitled to the benefit of CPLR 205 (a) where. . . it is the successor in interest as the current holder of the note" (Wells Fargo Bank, N.A. v Eitani, 148AD3d 193, 195 [2017]).
Here, even assuming that there were no questions of fact as to whether the plaintiffs in the2007 and 2013 actions were legally distinct entities, the plaintiff in this action is entitled to thebenefit of CPLR 205 (a). As the assignee and subsequent holder of the note and mortgage, theplaintiff in the 2013 action had a statutory right, pursuant to CPLR 1018, to continue the 2007action in the place of the prior plaintiff once the assignment occurred in 2009, even in theabsence of a [*5]formal substitution (see CPLR 1018; U.S. Bank N.A. v Akande, 136 AD3d887, 890 [2016]). Indeed, the plaintiff in this action, as the current holder of the note andmortgage, is not seeking to enforce any rights separate and independent from those asserted inthe 2007 action (see Wells Fargo Bank,N.A. v Eitani, 148 AD3d 193 [2017]; cf. Reliance Ins. Co. v PolyVision Corp., 9NY3d at 58). Rather, it is seeking to enforce the rights under the note and mortgage by obtaininga judgment of foreclosure and sale, the same rights that the plaintiff in the 2007 action sought toenforce (see Wells Fargo Bank, N.A. vEitani, 148 AD3d 193 [2017]; see also George v Mt. Sinai Hosp., 47 NY2d at179). Under these circumstances, the plaintiff was entitled to the application of the savingsprovision contained in CPLR 205 (a), and that branch of Rose Gordon's motion which was todismiss the complaint as time-barred should have been denied on this ground as well.
In sum, since Rose Gordon failed to sustain her prima facie burden of demonstrating that thetime within which to commence the action had expired, and since, in any event, the plaintiffdemonstrated that the action is not barred by the statute of limitations by application of CPLR205 (a), the Supreme Court should have denied that branch of Rose Gordon's motion which waspursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against her astime-barred.
In light of the foregoing, we need not reach the plaintiff's remaining contention that RoseGordon's written acknowledgment of the debt renewed the statute of limitations pursuant toGeneral Obligations Law § 17-101. Miller, LaSalle and Connolly, JJ., concur.
Brathwaite Nelson, J., dissents, and votes to affirm the order appealed from, with thefollowing memorandum, in which Hall, J.P., concurs: The majority resolves this appeal ongrounds not argued by the appellant or disputed before the motion court. Because the appellant isnot entitled to reversal on the grounds argued, I respectfully dissent and vote to affirm theSupreme Court's order granting that branch of the motion of the defendant Marsha Rose Gordonwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against heras time-barred.
The plaintiff, U.S. Bank National Association, as Trustee for J.P. Morgan MortgageAcquisition Corp. 2006-FRE2, Asset Backed Pass-Through Certificates, Series 2006-FRE2,commenced this action in October 2013 to foreclose a mortgage. The complaint alleged that theplaintiff was the holder of the note and entitled to enforce it. The complaint further alleged thatthe plaintiff was the current holder of the mortgage, having been assigned the mortgage by virtueof an assignment dated January 26, 2009, from U.S. Bank National Association, which hadreceived the mortgage by way of a July 2, 2007, assignment from Mortgage ElectronicRegistration Systems, Inc. (hereinafter MERS). The complaint stated that Rose Gordon failed tomake payments in accordance with the terms of the mortgage, and that the plaintiff was electingto call due the entire amount secured by the mortgage, as more than 30 days had elapsed since thedate of default. The complaint did not expressly identify the date of default, but it stated that"Schedule E" set forth the principal balance due and the date and rate from which interestaccrued and was owing. "Schedule E," which was incorporated into the complaint by reference,identified March 1, 2007, as the date from which interest accrued and was owing. The complaintalso incorporated by reference a note dated November 17, 2005, in which Rose Gordon promisedto pay Fremont Investment & Loan (hereinafter Fremont) $412,000, with interest beginningon January 1, 2006, and continuing until the maturity date of December 1, 2035. The noteincluded a provision which authorized the note holder to accelerate the full loan amount uponRose Gordon's default in payments thereunder. A mortgage of the same date identified MERS asnominee of Fremont for the purposes of recording the mortgage.
Rose Gordon moved, inter alia, to dismiss the complaint insofar as asserted against herpursuant to CPLR 3211 (a) (5) on the ground that the six-year statute of limitations established[*6]by CPLR 213 (4) had expired. In support of the motion, RoseGordon argued that the date of default was March 1, 2007, the mortgage and note at issue hadbeen litigated in a prior action, and the entire mortgage debt had been accelerated, asdemonstrated by the complaint in the prior action. She submitted, among other things, thecomplaint in the prior action, which was filed on or about July 6, 2007 (hereinafter the 2007action), and which included a declaration that the plaintiff in that action elected to call due theentire amount secured by the mortgage.
In opposition to Rose Gordon's motion, the plaintiff argued that the instant action was timelycommenced pursuant to CPLR 205 (a). It reasoned that the 2007 action was timely commenced,and then dismissed on May 16, 2013, for lack of standing, and therefore the plaintiff had sixmonths from the date of dismissal, or until November 16, 2013, to commence a new action inforeclosure. The plaintiff did not dispute that the entire mortgage debt was accelerated in 2007, afact which it acknowledges on appeal. Instead, it relied entirely on the applicability of CPLR 205(a). With its opposition, the plaintiff submitted, inter alia, the Supreme Court's order dismissingthe 2007 action for lack of standing. In the order, among other things, the Supreme Court foundthat MERS lacked the power to assign the note under the terms of the mortgage.
In reply, Rose Gordon argued that the plaintiff was not entitled to the benefit of CPLR 205(a) because it was an entity legally distinct from the plaintiff in the 2007 action, and it wasrelying on a defective assignment of mortgage to establish its own standing to bring a foreclosureaction. In surreply, the plaintiff's attorney, inter alia, asserted that the plaintiff in this action wasnot an entity separate and distinct from the plaintiff in the 2007 action, but rather, it was "merelyappearing in a different capacity (as a trustee)." In the order appealed from, the Supreme Courtgranted that branch of Rose Gordon's motion which was to dismiss the complaint insofar asasserted against her, finding that the subject mortgage debt was previously accelerated and thesix-year statute of limitations had run prior to the commencement of this action.
On appeal, the plaintiff contends that the Supreme Court erred in finding that CPLR 205 (a)was not applicable to this action. Specifically, it argues that it is not an entity legally distinctfrom the plaintiff in the 2007 action, the identification of U.S. Bank National Association astrustee in this action merely provides additional identifying information, and there is nodifference between the plaintiff in the 2007 action and the plaintiff in this action. The plaintiffconcedes that the MERS assignment was a "legal nullity" and thereby contends that thesubsequent assignment from the plaintiff in the 2007 action to it did not demonstrate theinvolvement of separate entities.
The majority decides this appeal on the ground that the plaintiff failed to make a prima facieshowing that the instant action is time-barred. It arrives at this determination by finding that theplaintiff failed to establish that the mortgage debt was accelerated in 2007, and, therefore, thatthe statute of limitations had begun to run on the entire debt owed. The plaintiff, however, doesnot make this argument on appeal, and did not contest the fact of prior acceleration in theSupreme Court. The parties to a civil lawsuit are "free to chart their own course" and "mayfashion the basis upon which a particular controversy will be resolved" (Cullen v Naples,31 NY2d 818, 820 [1972]; see Matter ofNew York Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704, 705 [2005]; Davis vTrey, 187 AD2d 409, 410 [1992]). Here, in opposition to Rose Gordon's motion, the plaintiffdid not dispute the fact that the mortgage debt was accelerated in 2007 or argue that thedeclaration in the complaint in the 2007 action was insufficient to establish that the mortgagedebt was validly accelerated. To the contrary, the plaintiff argued that the instant action wastimely pursuant to CPLR 205 (a). Thus, the plaintiff took a position which relied upon the 2007action having been timely commenced to collect upon the accelerated mortgage debt (cf.CPLR 205 [a]). In support of its argument that it was entitled to the benefit of CPLR 205 (a), theplaintiff submitted the order dated May 16, 2013, directing dismissal of the 2007 action for lackof standing in order to establish that this action was commenced within six months of the prioraction's termination and that the prior action was not terminated "by a voluntary discontinuance,a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint forneglect to prosecute the action, or a final judgment upon the merits" (CPLR 205 [a]). Theplaintiff did not argue, as the majority now finds, that the May 16, 2013, order was proof that thedeclaration of acceleration in the 2007 complaint was invalid or insufficient to establish that themortgage debt actually was accelerated. The plaintiff chose to pursue a course [*7]which, if successful, would have enabled it to collect on the entiremortgage debt, and not just those payments which became due October 2007 and thereafter(see CPLR 213 [4]; Plaia vSafonte, 45 AD3d 747, 748 [2007]). The majority thus decides the appeal on a groundthat is fundamentally at odds with the course charted by the plaintiff in this lawsuit.
In addition, I disagree with the majority's implicit finding that the question of whether themortgage debt was accelerated is a pure question of law that may be raised for the first time onappeal (see Carlin v Hereford Ins.Co., 125 AD3d 917, 919 [2015]; Benavides v Uniondale Union Free School Dist., 95 AD3d 809,810 [2012]; Polanco v Lewis FlushingCorp., 91 AD3d 624, 624 [2012]). Had the plaintiff contested the issue at the motioncourt, Rose Gordon might have come forward with other proof of acceleration (cf. Wilson v Galicia Contr. &Restoration Corp., 10 NY3d 827, 829 [2008]). Furthermore, this issue has not beenbriefed by either party on appeal. In my view, it is inappropriate to raise this issue sua sponte andresolve the appeal on a ground not relied upon by the plaintiff and of which Rose Gordon had nonotice of the need to defend.
Finally, the majority asserts that it is merely analyzing the legal issue of whether RoseGordon met her prima facie burden and that there is no occasion to consider the plaintiff'sopposition to the motion. However, in reaching its conclusion that Rose Gordon's proof wasinadequate, the majority relies on the May 16, 2013, order, in which the Supreme Courtdetermined that the plaintiff in the first action lacked standing to commence the action. Thisorder was submitted by the plaintiff in opposition to the subject motion. Thus, the majorityconfuses the evidence submitted by the parties in support of and in opposition to the subjectmotion, and, consequently, errs in its application of the burden-shifting analysis.
The issue raised by the plaintiff on its appeal is whether it established the applicability ofCPLR 205 (a) such that the instant action would be timely as to the entire mortgage debt. Asrelevant here, CPLR 205 (a) provides the plaintiff in an action that was timely commenced butterminated in some manner other than those noted above, with six months to commence a newaction (see Reliance Ins. Co. vPolyVision Corp., 9 NY3d 52, 57 [2007]). The parties dispute whether the plaintiffestablished that it was "the plaintiff" with respect to the 2007 action. More specifically, theplaintiff contends that it established that it was the same entity as that prior plaintiff, and theidentification "as trustee" in this action merely provides additional information concerning itsidentity.
The 2007 action was commenced by "U.S. Bank National Association c/o Chase HomeFinance, LLC 10790 Rancho Bernardo Road San Diego, CA 92127," which the 2007 complaintalleged was a banking corporation duly organized and existing under and by virtue of the laws ofthe State of Delaware. This action was commenced by the plaintiff, "U.S. Bank NationalAssociation, as Trustee for J.P. Morgan Mortgage Acquisition Corp. 2006-FRE2, Asset BackedPass-Through Certificates, Series 2006-FRE2," which the complaint alleges is a "nationalassociation, duly licensed, organized and existing pursuant to the laws of the United States ofAmerica, doing business in the State of New York," with an address of 180 East 5th Street, SaintPaul, Minnesota, 55101. In addition, although the plaintiff now asserts that the "assignments areconsidered legal nullities" and "do not demonstrate the involvement of separate entities," theinstant complaint included, inter alia, a purported assignment of mortgage between the twoentities. In light of the above, the conclusory assertion by the plaintiff's attorney, who did notclaim to have any personal knowledge of the facts, made in an affirmation in surreply, that thetwo entities were legally the same, was insufficient to raise a question of fact as to whether thestatute of limitations was tolled pursuant to CPLR 205 (a).
I also disagree with the majority's alternative holding that this Court should apply its recentdecision in Wells Fargo Bank, N.A. vEitani (148 AD3d 193 [2017]) to find, as a matter of law, that the plaintiff here isentitled to the benefit of CPLR 205 (a). In Eitani, a majority of the Court held that "aplaintiff in a mortgage foreclosure action which meets all of the other requirements of the statuteis entitled to the benefit of CPLR 205 (a) where . . . it is the successor in interest asthe current holder of the note" (Wells Fargo Bank, N.A. v Eitani, 148 AD3d at 195).There, a mortgage foreclosure action was commenced by Argent Mortgage Company, LLC(hereinafter Argent), in November 2005 (see id.). In 2008, while the action was pending,Argent assigned and delivered the [*8]note and mortgage toWells Fargo Bank, N.A. (hereinafter Wells Fargo) (see id.). The mortgage foreclosureaction was dismissed on August 1, 2013, for reasons not relevant here (see id.). OnNovember 25, 2013, Wells Fargo, still the holder of the note and mortgage, commenced a newforeclosure action (see id.). In finding that Wells Fargo was entitled to the benefit ofCPLR 205 (a), the majority reasoned that when the note and mortgage were transferred to it in2008, Wells Fargo became Argent's successor in interest with respect to the right to forecloseunder the note and mortgage, and thereby had a statutory right, pursuant to CPLR 1018, tocontinue the foreclosure action in the original plaintiff's place, even in the absence of a formalsubstitution (see Wells Fargo Bank, N.A. v Eitani, 148 AD3d at 199). Wells Fargo, as theassignee of the note and mortgage, was essentially the plaintiff in the prior action when it wasdismissed and, thus, was entitled to the benefit of CPLR 205 (a) (see Wells Fargo Bank, N.A.v Eitani, 148 AD3d at 203).
Here, as a threshold matter, the plaintiff does not rely on a successor in interest theory. In anyevent, the only evidence in the record that the mortgage and note were assigned to the plaintiff isa January 26, 2009, written mortgage assignment, which the plaintiff concedes was a "legalnullity" since it originated from an assignment by MERS, which was never the actual holder orassignee of the underlying note and thus lacked authority to assign it (see Bank of N.Y. v Silverberg, 86AD3d 274 [2011]). Unlike the record in Eitani, the record here fails to establish thatthe plaintiff became the holder of the note and mortgage while the 2007 action was pending, andthat the plaintiff was essentially the plaintiff in the prior action when it was dismissed. Therecord otherwise fails to establish that the plaintiff is the current holder or assignee of the noteand, thus, a successor in interest to the plaintiff in the 2007 action (see US Bank, N.A. v Zwisler, 147AD3d 804, 806 [2017]).
The plaintiff's contention concerning General Obligations Law § 17-101 is notproperly before this Court, as the argument and the documents in support of it were provided forthe first time in the plaintiff's surreply papers submitted to the Supreme Court (see Williams v City of New York, 114AD3d 852, 854 [2014]; Sahni vKitridge Realty Co., Inc., 114 AD3d 837, 838 [2014]).
Accordingly, I would affirm the order appealed from.
Footnote *:We note that our dissentingcolleagues have not addressed the merits of this issue, even in the alternative, on the ground thatit was not raised by the plaintiff. The unusually narrow construction imposed upon the plaintiff'sarguments in order to achieve this result is unwarranted in this case. In any event, as previouslyindicated, Rose Gordon herself necessarily placed the matter in issue by arguing, in support ofher motion, that the 2007 complaint demonstrated that this action was untimely. Inasmuch as itwas Rose Gordon, not the plaintiff, who bore the initial burden of proof, there is no occasion toconsider the plaintiff's opposition to the motion until Rose Gordon's initial burden has beensatisfied (see Stewart v GDC Tower at Greystone, 138 AD3d at 729-730). As ourdissenting colleagues' analysis reflects, their novel approach would wholly eliminate RoseGordon's initial burden of proof, a serious departure from this Court's longstandingburden-shifting procedure (see e.g.Weight v Day, 134 AD3d 806, 808 [2015]; Papa v Fairfield on the Green, 123 AD3d 990, 990-991 [2014]; City Store Gates Mfg. Corp. v EmpireRolling Steel Gates Corp., 113 AD3d 718, 719-720 [2014]; Constructamax, Inc. v Dodge ChamberlinLuzine Weber, Assoc. Architects, LLP, 109 AD3d 574, 576 [2013]; A.F. Rockland Plumbing Supply Corp. vHudson Shore Associated Ltd. Partnership, 96 AD3d 885, 886 [2012]).