Genovese v. Nationstar Mortg.

1

2022 NY Slip Op 34673(U)

DEBORAH GENOVESE, as Executor of the ESTATE OF JOSEPH GENOVESE, Plaintiff, v. NATIONSTAR MORTGAGE LLC d/b/a Champion Mortgage Company, Defendants.

Index No. 805874/2022E

Supreme Court, Bronx County

October 28, 2022

Unpublished Opinion

Present: HON. KENNETH L. THOMPSON, JR. Justice

DECISION AND ORDER

KENNETH L. THOMPSON JR., J.S.C.

The following papers numbered 1 to read on this motion to dismiss

No On Calendar of July 29, 2022 PAPERS

Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed---------motion sequence #1 NYSCEF

Answering Affidavit and Exhibits------------------------------------------------------motion sequence #1 NYSCEF

Replying Affidavit and Exhibits------------------------------------------------------motion sequence NYSCEF

Memorandum of Law-------------------------------------------------------------------------motion sequence#! NYSCEF

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Defendant moves pursuant to CPLR 3211(a)(1) and (a)(7), to dismiss this action based upon documentary evidence and for failure to state a cause of action. Pursuant to RPAPL 1501(4) plaintiff seeks to cancel and discharge a mortgage held by defendant on grounds that the statute of limitations has run. The mortgaged property, (hereinafter, Property), is in Bronx County.

In a decision and order of this Court dated April 7, 2017, a Judgment of Foreclosure and Sale against the plaintiff s Property, was vacated and the herein defendant's foreclosure complaint that accelerated the monthly mortgage payments was dismissed on grounds that the estate of decedent/mortgagor, Joseph Genovese, was not served. Consequently, the action was a legal nullity.

Greenpoint served but did not substitute the executor of decedent's estate as a party in the 2008 action (see CPLR 1015 [a]). As such, the court lacked jurisdiction over the 2008 action, and that action was a legal nullity from its inception (see Beneficial Homeowner Serv. Corp, v Heirs at Large of Ramona E Thwaits, 185 A.D.3d 1126, 1129 [2020]; Wells Fargo Bank, N.A. v Baymack, 176 A.D.3d 905, 906 [2019]; Citigroup Global Mkts. Realty Corp, v LaGreca, 167 A.D.3d 842, 843 [2018]). It follows that the 2008 action, a legal nullity, did not trigger the statute of limitations.

(U.S. Bank Nat'l Ass'n v. Stewart, 187 A.D.3d 1330, 1332 [3^rd Dept 2020]).

The commencement of the dismissed foreclosure action that is a legal nullity, did not trigger the running statute of limitations under RPAPL 1501(4), and consequently, the plaintiffs complaint seeking to cancel and discharge the mortgage must be dismissed.

Plaintiff attempts to distinguish Stewart with a quote from GMAT Legal Title Tr. 2014-1, U.S. Bank Nat'l Ass'n v. Wood, 192 A.D.3d 1285, 1286-87 [3^rdDept 2021 ], which states "'[t]he fact of election [to accelerate should not be confused with the notice or manifestation of such election'" (id. at -, 2021 NY Slip Op 01090, *2, quoting Albertina Realty Co. v Rosbro Realty Corp. 258 NY 472, 476 [1932])." The Third department was referring to a letter threatening acceleration that is "merely an expression of future intent that fell...