FV-I. v. Palaguachi
| Docket Number | Index No. 710424/2017 |
| Decision Date | 28 July 2023 |
| Citation | 2023 NY Slip Op 32684 (U) |
| Parties | FV-I. INC., IN TRUST FOR MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, Plaintiff, v. LUIS E. PALAGUACHI; ROSA E. PALAGUACHI; NUBE LAPORTE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA; CRIMINAL COURT OF THE CITY OF NEW YORK; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; FIA CARD SERVICES; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD: TRANSIT ADJUDICATION BUREAU; GUSTAVIA HOME LLC; Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
Present: Honorable Joseph J. Esposito Justice.
The following numbered papers read on this motion by defendant Gustavia Home, LLC (Gustavia) for renewal of plaintiff s motion for summary judgment and an order of reference.
Order to Show Cause - Affirmation - Exhibits..... EF 243-252
Answering Affirmation - Exhibit.................. EF 257-259
Reply Affirmation - Exhibit...................... EF 260-262
Upon the foregoing papers it is ordered that the motion is determined as follows:
In this mortgage foreclosure action, the court (Esposito, J.) granted plaintiffs motion for, among other things, summary judgment and appointment of a referee to compute the amount due in an order entered March 9, 2022. Citing Freedom Mtge. Corp, v Engel (37 N.Y.3d 1 [2021]), the court rejected the argument of Gustavia, the only defendant appearing in the action, that plaintiffs voluntary discontinuance of an earlier action did not effectively decelerate the loan to render the instant action time-barred. Gustavia now moves to renew' the order entered March 9, 2022, on the ground that a change in law would alter the prior determination (see CPLR 2221 [e][2]).
A party may appropriately seek relief from a prior order based on a change in the law by a motion to renew (see CPLR 2221[e][2]; Opalinski v City of New York. 205 A.D.3d 917. 919 [2d Dept 2022]; Dinallo v DAL Elec., 60 A.D.3d 620, 621 [2d Dept 2009]). Gustavia argues that the Foreclosure Abuse Prevention Act (L 2022, ch 821) (FAPA) amended various statutes, which would change the outcome of the March 9. 2022 order.
Gustavia relies on FAPA's amendments to the CPLR, which added subdivision [h] to CPLR 203 and subdivision |e] to CPLR 3217. Both amended statutes refer to CPLR 213[4], which requires commencement within six years of "an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein." CPLR 203[h] provides that "[o]nce an action upon an instrument described in subdivision four of section two hundred thirteen of this article has accrued, no party may, in form or effect, unilaterally waive, postpone cancel, toll, revive or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute. CPLR 3217[e] provides that "fi]n any action on an instrument described under subdivision four of section two hundred thirteen of this chapter, the voluntary discontinuance of such action, whether on motion, order stipulation or by notice, shall not. in form or effect waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute". Gustavia maintains that these amended statutes apply retroactively and encompass the instant action because § 10 of FAPA provides that "[t]his act shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced" (see HSBC Bank USA, N.A. v Francis, 214 A.D.3d 58 64 n [2d Dept 2023]). Specifically. Gustavia argues that under CPLR 203[h] and 3217fe]. plaintiff's predecessor's foreclosure action commenced November 17 2010, was not effectively decelerated by the notice of discontinuance on June 12, 2012, and renders plaintiffs action commenced July 28, 2017 time-barred.
In opposition, plaintiff argues that FAPA does not apply retroactively and would not affect plaintiffs action. Generally, statutory amendments have prospective effect unless its language indicates a contrary interpretation (see People v Galindo, 38 N.Y.3d 199. 207 [2022]; Matter of Gleason (Michael Vee, Ltd.), 96 N.Y.2d 117, 122 [2001]; Matter of Thomas v Bethlehem Steel Corp., 63 N.Y.2d 150, 154 [1984]). Plaintiff contends that § 10 of FAPA does not provide it is to be applied retroactively. Although plaintiff correctly argues that a provision that a statute is to take effect immediately, without more, is insufficient to establish it is to be applied retroactively (see Gottwald v Sebert, ___NY3d ___, 2023 NY Slip Op 03183 *7 [2023]; Majewski v Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 583-84 [1998]; Marrero v Crystal Nails, 114 A.D.3d 101. 113 [2d Dept 2013]), here, § 10 further provides that FAPA applies to all mortgage foreclosure actions "in which a final judgment of foreclosure and sale has not been enforced." This language evinced an intent for FAPA to reach all mortgage foreclosure actions in which the judgments had not been enforced irrespective of whether they were commenced before or after the date FAPA was enacted (see Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332, 374 [2020]). Although plaintiff contends that an "even clearer expression of legislative intent" to retroactively apply statutes is required, that standard applies to statutes that revive time-barred claims (Matter of Regina Metro. Co.. LLC. 35 N.Y.3d at 371; see 35 Park Ave. Corp, v Campagna, 48 N.Y.2d 813, 815 [ 1979|). The converse situation is involved here as FAPA may extinguish actions as time-barred that had been viable due to judicial interpretation of the laws applicable to mortgage foreclosure actions. Therefore, heightened clarity of the Legislature's intent need not be found here. Given the Legislature's clear indication that FAPA is to be applied retroactively, plaintiffs reliance on cases holding that procedural statutes are to be applied prospectively absent a clear Legislative directive to the contrary is misplaced (see Simonson v International Bank, 14 N.Y.2d 281 [1964]; Wade v Byung Yang Kim. 250 A.D.2d 323, 325-326 [2d Dept 1998]; Auger v State of New York, 236 A.D.2d 177, 179-80 [3d Dept 1997]).
In addition, "[a]meliorative or remedial legislation . . . should be given retroactive effect in order to effectuate its beneficial purpose" (Matter of Marino S., 100 N.Y.2d 361,370-71 [2003]; Matter of Gleason , 96 N.Y.2d at 122). In the legislative materials, the legislature found that "an ongoing problem with abuses of the judicial foreclosure process and lenders' attempts to manipulate statutes of limitation . . . exacerbated by recent court decisions which, contrary to the intent of the legislature, have given mortgage lenders and loan servicers opportunities to avoid strict compliance with remedial statutes and manipulate statutes of limitation to their advantage" (Assembly Mem in Support of 2022 Assembly Bill A7737 enacted as L 2022, ch 821). FAPA's purpose was "to clarify the meaning of existing statutes, and to rectify these erroneous judicial interpretations thereof' (Id.). To accomplish these objectives, FAPA amended "certain statutes and rules to clarify the existing law and overturn certain court decisions to ensure the laws of this state apply equally to all litigants, including those currently involved in mortgage foreclosure actions, in order to ensure that parties purporting to sue on mortgage debt are bound by the same statutes of limitations that bind all other litigants" (Id.). Thus, retroactive application of FAPA is further supported by its legislative history indicating its purpose to clarify the law (See Matter of Gleason (Michael Vee, Ltd.), 96 N Y2d at 122-23; Town of Cortlandt v New York State Bd. of Real Prop. Servs., 36 A.D.3d 823, 826 [2d Dept 2007]), particularly to remediate "unintended judicial interpretation" (Matter of Gleason , 96 N.Y.2d at 122; see Brothers v Florence, 95 N.Y.2d 290, 299-300 [2000]), its remedial nature (see Matter of Hynson (American Motors Sales Corp.-Chrysler Corp), 164 A.D.2d 41. 48 [2d Dept 1990]), and the urgency of its application (see Matter of Gleason (Michael Vee, Ltd.), 96 N.Y.2d at 122; Brothers, 95 N.Y.2d at 299; cf. Marrero v Crystal Nails, 114 A.D.3d 101, 112-13 [2d Dept 2013]). Further, inasmuch as the Legislature enacted FAPA to remediate court decisions misconstruing law-applicable to mortgage foreclosure actions, which impacted such actions commenced prior to FAPA's enactment, to give prospective application to FAPA would undermine its remedial purpose (see Brothers, 95 N.Y.2d at 300; Matter of OnBank & Trust Co., 90 N.Y.2d 725. 731-32 [1997]; Nelson v HSBC Bank USA. 87 A.D.3d 995. 998 [2d Dept 2011]).
The court rejects plaintiffs arguments that the legislative materials were equivocal regarding the Legislature's intent for FAPA to apply retroactively and that they spoke only to stopping past practices. This court's conclusion that FAPA is expressly retroactive renders academic plaintiffs arguments regarding the legal standard for determining whether a statute is intended to have a retroactive effect when the intent is unclear, as well as whether the presumption against retroactive effect is triggered.
Plaintiff also contends that retroactive application of FAPA violates the...
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