We are pleased to share a recent decision of a case handled by Friedman Vartolo, LLP. In Citibank, NA, not in its individual capacity but solely as Trustee of NRZ Pass Through Trust V1 v. Janice Chang, et al 612369/2018, Supreme Court Ct. 5/31/19, Hon. Thomas F. Whelan of Suffolk County, New York granted the Motion for summary judgment to the Plaintiff after reviewing key statute of limitations arguments made by the firm.
The instant action was commenced on June 28, 2018. On August 27, 2018 the defendant filed an answer with affirmative defenses and counterclaims. On January 3, 2019, Plaintiff filed the motion seeking summary judgment. Defendant alleged that plaintiff’s action was untimely under the statute of limitations and challenged the proof of mailing of the RPAPL 1304 notice.
A prior foreclosure action was filed on July 9, 2010 and defendant contended that the prior action accelerated the debt and that said acceleration has not been withdrawn or revoked. The defendants, in support of this, allegation submitted an unverified complaint from the 2010 action, as well as, an order dismissing the action as a result of failure to comply with the Court’s prior order as to standing.
The Second Department has recognized that the filing of a verified complaint constitutes a valid election to accelerate. Additionally, the Second Department, in two recent 2018 cases, has noted the significance of a “sworn statement”. Thus, the Court found that it was inconsistent to hold that an unverified complaint cannot support a default judgment, but, that an unverified complaint may accelerate future monthly installment payments that have not yet come due. Additionally, since standing was not established in the 2010 case, acceleration could not have taken place. The Court, therefore, granted the motion for summary judgment and gave the plaintiff the opportunity to address some additional evidentiary issues with updated affidavits.
A great job by Richard O’Brien, Esq. and David Seibert, Esq. of our firm! For more information regarding this case, please contact Deborah Gallo, Director of Operations at [email protected]