U.S. Supreme Court Blocks Enforcement of a Limited Part of New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act

Wayne Streibich, Diana M. Eng, and Chenxi Jiao


Financial institutions, lenders, and servicers should take note that the United States Supreme Court (“SCOTUS”) granted an injunction filed by plaintiffs-landlords seeking to prevent the enforcement of New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“CEEFPA”) because it violates their due process rights. However, SCOTUS limited its ruling to enjoin the enforcement of only Part A of the CEEFPA, which provides that if a tenant self-certifies financial hardship, a landlord generally cannot contest the certification and denies the landlord a hearing. Thus, financial institutions, lenders, and servicers should continue to abide by other prohibitions regarding foreclosures, evictions, and credit reporting in the CEEFPA.

On August 12, 2021, in Chrysafis v. Marks, No. 21A8, — S. Ct. –, 2021 WL 3560766 (Aug. 12, 2021), the United States Supreme Court granted an injunction blocking the enforcement of New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020—an anti-eviction law originally passed on December 28, 2020, and subsequently extended. SCOTUS found that the provision allowing tenants to submit an affidavit self-certifying their pandemic-related hardship to prevent eviction violated the plaintiffs-landlords’ due process rights (“Hardship Declaration”).

Background

When enacted on December 28, 2020, the CEEFPA stayed all pending residential eviction proceedings and foreclosure actions for 60 days and provided a further stay through May 1, 2021, to those defendants who provided their landlord or lender/servicer, as applicable, with a Hardship Declaration certifying that they have been negatively impacted as a result of the COVID-19 pandemic. On May 4, 2021, the CEEFPA was extended to, among other things, protect tenants who submitted a Hardship Declaration from eviction until August 31, 2021.

On May 6, 2021, a small group of landlords and the Rent Stabilization Association (“Landlords”) filed a lawsuit in the Eastern District of New York challenging the constitutionality of the CEEFPA. The district court dismissed the Landlords’ complaint and the United States Court of Appeals for the Second Circuit denied the Landlords’ request for an injunction pending their appeal. The Landlords then filed for a petition for a writ of certiorari to the Supreme Court and, on July 26, 2021, filed an application for emergency injunctive relief, which was presented to Justice Sotomayor and referred to SCOTUS.

To read the full client alert, please visit our website

New York’s COVID-19 Eviction and Foreclosure Prevention and Small Businesses Acts Extended to August 31, 2021—What You Need to Know

Wayne Streibich, Diana M. Eng, and Alina Levi

Lenders, mortgage servicers, and other financial institutions should take note that New York State passed legislation extending the protections set forth in the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and the COVID-19 Emergency Protect Our Small Businesses Act of 2021 to August 31, 2021. Thus, the requirements and stays with respect to residential and commercial foreclosures and evictions imposed by the legislation remain effective through August 31, 2021.

On May 4, 2021, Governor Cuomo signed a bill extending both (i) the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “EEFPA”); and (ii) the COVID-19 Emergency Protect Our Small Businesses Act of 2021 (“SBA”), to August 31, 2021 (S.6362-A/A.7175-A) (the “Extended Act”). The purpose of the Extended Act, which is effective immediately, is to maintain protections prohibiting residential and commercial evictions, foreclosure proceedings, credit discrimination, and negative credit reporting related to the COVID-19 pandemic until August 31, 2021, if the borrowers, mortgagors, and/or tenants submit the required Hardship Declaration with the foreclosing party, landlord/their agent, or the Court. In practice, however, some courts have extended the stay even without the required Hardship Declaration.  

Highlights of the Extended Act are summarized below, but please refer to the full text of the Extended Act for additional information.

LIMITS OF THE EXTENDED ACT

  • The Extended Act still does not apply to residential eviction and foreclosure actions involving vacant and abandoned properties, listed on the statewide vacant, and abandoned property electronic registry (as such terms are defined in Sections 1309(2) and 1310 of New York’s Real Property Actions and Proceedings Law) prior to March 7, 2020, and which remain on such registry.
  • The Extended Act also does not apply to, and does not affect, any residential or commercial mortgage loan made, insured, purchased, or securitized by a corporate governmental agency of the state constituted as a political subdivision and public benefit corporation or the rights and obligations of any lender, issuer servicer, or trustee of such obligations.
  • The portion of the Extended Act addressing the SBA still only applies to commercial tenants, who independently own and operate their business, have 50 or fewer employees, and experience financial hardship and are unable to pay the rent or other financial obligations under the lease in full or obtain an alternative suitable commercial property as a result of:
      1. significant loss of revenue during the COVID-19 pandemic; and/or

      2. significant increase in necessary expenses related to providing personal protective equipment to employees or purchasing and installing other protective equipment to prevent the transmission of COVID-19 within the business; and/or

      3. moving expenses and difficulty in securing an alternative commercial property make it a hardship for the business to relocate to another location.

  • The Extended Act still permits residential and commercial evictions of tenants, who persistently and unreasonably engage in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or cause a substantial safety hazard to others.

To read the full client alert, please click here

NY Department of Financial Services Enforces First-in-the-Nation Cybersecurity Rules and Fines Mortgage Lender $1.5 Million for Failure to Comply

Andrea M. Roberts and Diana M. Eng

In March 2017, New York State’s Department of Financial Services (“DFS”) implemented the nation’s first cybersecurity rules requiring all regulated entities, such as banks, insurers, financial businesses, and regulated virtual currency operators, to fortify their cybersecurity protocols by implementing and maintaining cybersecurity policies (the “Cybersecurity Regulation”). These protocols and policies include, among other things, establishing a detailed security plan, increasing the monitoring of third-party vendors, appointing chief information security officers, and reporting breaches to the Superintendent of the Department of Finance within 72 hours of identifying a Cybersecurity Event.[1] The Cybersecurity Regulation is codified at 23 NYCRR 500.

For the second time, DFS has fined a regulated entity for failure to comply with the Cybersecurity Regulation. In March 2020, DFS commenced an examination of Residential Mortgage Services, Inc. (“Residential”), a Mortgage Banker (as defined in the Banking Law) based in Maine and licensed in New York. The examination encompassed a general compliance, safety, and soundness review, as well as compliance with the Cybersecurity Regulation. During the review, Residential disclosed for the first time a Cybersecurity Event, which had occurred nearly 18 months earlier. Specifically, an employee, who handles sensitive personal data, received a phishing e-mail and clicked on a hyperlink to a malicious website. DFS determined that although Residential’s technical support staff was alerted to the suspicious activity, Residential’s internal investigation was inadequate since it did not conduct any further inquiry after concluding the unauthorized access was limited to the employee’s e-mail account. Further, DFS determined Residential failed to satisfy the notification requirements of the Cybersecurity Regulation, as Residential failed to (i) identify whether the employee’s mailbox contained private consumer data during the breach and which consumers were impacted; and (ii) notify the Department of Finance within 72 hours of identifying a Cybersecurity Event. Finally, DFS determined that Residential was missing a comprehensive cybersecurity risk assessment, which should have led to the periodic evaluation of controls designed to protect nonpublic information and information systems.

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New York’s Highest Court Makes Key Rulings in Favor of Lenders Clarifying What Accelerates and De-Accelerates a Mortgage Debt for Statute of Limitations Purposes

Wayne Streibich, Diana M. Eng, and Chenxi Jiao

On February 18, 2021, the New York Court of Appeals issued a decision reversing the Appellate Division, First Department (“First Department”) and Appellate Division, Second Department’s (“Second Department”) decisions in Freedom Mortgage Corp. v. EngelDitech Financial, LLC v. NaiduVargas v. Deutsche Bank National Trust Company, and Wells Fargo Bank, N.A. v. Ferrato. Specifically, the Court of Appeals held, inter alia, that:

  1. a default letter stating that the lender “will” accelerate the debt referred to a future event and therefore did not accelerate the debt;
  2. the voluntary discontinuance of a foreclosure action (whether by motion or stipulation) within six years of acceleration, alone, revokes acceleration as a matter of law, unless the noteholder expressly states otherwise;
  3. the reason for a noteholder’s revocation is irrelevant, thereby expressly rejecting the concept that a noteholder’s revocation of acceleration cannot be “pretextual” to merely avoid the expiration of the statute of limitations; and
  4. a verified foreclosure complaint that accelerates the mortgage debt must clearly and accurately refer to the loan documents and debt at issue.

The Court of Appeals’ decision resolves a split between the First and Second Departments regarding whether a default letter clearly and unequivocally affirmatively accelerates a mortgage debt and provides much needed clarity on what conduct sufficiently accelerates a mortgage debt and revokes acceleration.

To read the full client alert, please click here.

New Requirements and Stays Imposed by New York’s COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020

Diana M. Eng and Alina Levi

On December 28, 2020, in response to the COVID-19 pandemic, the New York legislature met in a Special Session and passed the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (the “Act”) (S.9114/A.11181), which became effective immediately. The Act is aimed at providing relief to tenants facing residential eviction (Part A) and mortgagors/borrowers facing pending or future residential foreclosure proceedings (Part B, Subpart A). In addition, the Act (i) prohibits local governments from proceeding with tax lien sales or commencing tax foreclosures until May 1, 2021, on residential properties (Part B, Subpart B); (ii) prohibits credit discrimination and negative credit reporting (Part B, Subpart C); and (iii) requires local governments to carry-over the Senior Citizens’ Homeowners Exemption and the Disabled Homeowner Exemption to 2021 (Part B, Subpart D). Highlights of the Act are summarized below, but please refer to the full text of the Act for additional information.[i]

Limits of the Act

  • The Act does not apply to residential eviction and foreclosure actions involving vacant and abandoned properties, as defined in RPAPL 1309(2), listed on the statewide vacant and abandoned property electronic registry, as defined in RPAPL § 1310, prior to March 7, 2020, and that remain on such registry.[ii]
  • The Act also does not apply to, and does not affect, any mortgage loan made, insured, purchased, or securitized by a corporate governmental agency of the state constituted as a political subdivision and public benefit corporation or the rights and obligations of any lender, issuer servicer, or trustee of such obligations.[iii]

Eviction Highlights – Part A of the Act

  • Stays pending residential eviction proceedings for 60 days and bars new filings for 60 days through the end of February 2021, or to such later date that the chief administrative judge shall determine is necessary to ensure that the courts are prepared to conduct proceedings in compliance with the Act[iv];
  • Allows residential tenants to submit to their landlord and/or file with the court, a Hardship Declaration,[v] under penalty of perjury regarding their inability to pay their rent or secure alternative housing and suffering a financial hardship or suffering a health-related hardship that will extend the stay on eviction proceedings until May 1, 2021;
  • Certain proceedings can continue if the court receives an authorized new petition stating that the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial safety hazard to others;
  • Requires the landlord and the court to serve on tenants, the Hardship Declaration Form, along with all required notices of petition;
  • Requires the state Office of Court Administration to post such information and forms on its website in multiple languages;[vi]
  • Allows tenants to vacate default judgments upon oral or written request; and
  • Creates a presumption of financial hardship upon filing a Hardship Declaration that would support a defense based on financial hardship under the Tenant Safe Harbor Act.[vii]

Foreclosure Highlights – Part B of the Act

Stay of Residential Foreclosures

  • All pending residential foreclosure actions are stayed for at least 60 days through the end of February 2021, or to such later date that the chief administrative judge shall determine is necessary to ensure that the courts are prepared to conduct proceedings in compliance with the Act.[viii]
  • The 60-day stay applies where the owner or mortgagor of the property is a natural person, regardless of how title is held, and owns 10 or fewer dwelling units whether directly or indirectly.
  • Any owner, borrower, mortgagor, or natural person who owns 10 or fewer residential dwellings (as long as this includes the borrower’s primary residence) and experiences a financial hardship, can file a Hardship Declaration[ix] with the lender, its agent, or the court to stay a pending foreclosure proceeding until May 1, 2021, and prevent the commencement of a foreclosure action until May 1, 2021.
  • Where a judgment of foreclosure sale was issued before December 28, 2020, but has not yet been executed, execution of the judgment shall be stayed until the court holds a status conference with the parties. If borrower/mortgagor submits a Hardship Declaration prior to the execution of the judgment, the action shall be stayed until May 1, 2021.

Statute of Limitations

  • The statute of limitations to foreclose will be tolled during the initial 60-day stay. The Act also provides that “any specific time limit for the commencement of an action to foreclose a mortgage shall be tolled until May 1, 2021.”[x]

Requirements for New Residential Mortgage Foreclosure Actions

  • New York Courts will not accept new foreclosure complaints for filing, unless the foreclosing party files an Affidavit of Service stating that:

(a) the required notices under RPAPL § 1303 (Help for Homeowners in Foreclosure/Notice to Tenants or “1303 Notice”) and RPAPL § 1304 (the “90-Day Notice”) and the Hardship Declaration (in English and mortgagor’s primary language, if other than English[xi]) were served on borrower/mortgagor; and

(b) attesting that at the time of filing, neither the foreclosing party nor its agent has received a Hardship Declaration from the mortgagor.

  • Importantly, the foreclosing party should not rely on 1303 Notices served, or 90-Day Notices that were mailed, before the Act was effective. Rather, the foreclosing party should serve new 1303 Notices and mail new 90-Day Notices with the required Hardship Declaration.[xii]
  • After a foreclosure action is commenced, the court shall seek confirmation on the record or in writing that borrower/mortgagor has received a Hardship Declaration and has not returned the Hardship Declaration to the foreclosing party or its agent.
  • If the court determines that the borrower/mortgagor has not yet received a Hardship Declaration form, the court must stay further proceedings for no less than 10 business days to ensure borrower/mortgagor receives and fully considers whether to submit a Hardship Declaration.

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NY’s Third Department Holds Action Enforcing Note Is Neither Barred by Estoppel Doctrines Nor the Applicable Statute of Limitations

Andrea M. Roberts and Diana M. Eng

In CitiMortgage, Inc. v. Ramirez, 2020 WL 7647749, at *3 (3d Dept. Dec. 24, 2020), the Appellate Division, Third Department, held that CitiMortgage, Inc.’s action to recover under a note (i) was not precluded because of CitiMortgage, Inc.’s right to an election of remedies; and (ii) was timely because the statute of limitations was tolled during the pendency of the prior foreclosure action.

Summary of Facts & Background

In May 2010, plaintiff, CitiMortgage, Inc. (“Plaintiff”), commenced an action to foreclose against borrower, Jose Ramirez (“Borrower”) (the “First Foreclosure Action”). The foreclosure action was dismissed in October 2013 for failure to prosecute. Plaintiff moved to vacate the dismissal, which was denied in April 2015. In 2017, plaintiff commenced a second foreclosure action (the “Second Foreclosure Action”), which was ultimately dismissed on the grounds that the statute of limitations to foreclose had expired in May 2016. The Court also discharged the mortgage.

In May 2019, Plaintiff commenced another action against Borrower seeking a money judgment in the amount of the unpaid balance of the note. Borrower moved to dismiss on the grounds that the (i) action was time-barred and (ii) barred by res judicata. The Schenectady County Supreme Court (“Lower Court”) granted Borrower’s motion holding that Plaintiff was collaterally estopped from relitigating the issue of whether the statute of limitations period was tolled. Plaintiff appealed.

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New York’s Department of Financial Services Issues Regulation for Financial Institutions to Provide Relief to Consumers Suffering Financial Hardship Resulting from COVID-19 Pandemic

Wayne StreibichDiana M. Eng, Andrea M. RobertsScott D. Samlin

On March 21, 2020, in response to the COVID-19 pandemic, Governor Cuomo issued Executive Order 202.9, directing institutions regulated by New York’s Department of Financial Services (“NY DFS”) to provide financial relief to New York consumers experiencing financial hardship as a result of the pandemic. As a result, on March 24, 2020, NY DFS enacted Part 119 of Title 3 of the Official Compilation of Codes, Rules and Regulations of the State of New York (“NYCRR”) establishing standards and procedures that a “Regulated Institution” must follow in its review of requests for relief pursuant to Executive Order 202.9. Importantly, Section 119.2 defines a “Regulated Institution” as “any New York regulated banking organization as defined under New York Banking Law and any New York regulated mortgage servicer entity subject to the authority of the Department.” (Emphasis added).

Highlights of the NY DFS Regulation1

Section 119.3 directs the Regulated Institution to do the following for any individual who can demonstrate financial hardship as a result of the COVID-19 pandemic:

  • In connection with a residential mortgage of a property located in NY: (i) make applications for forbearance of any payment due widely available to any individual who resides in NY and (ii) grant such forbearance for a period of 90 days (subject to the safety and soundness requirements of the Regulated Institution). This provision does not apply to, and does not affect mortgage loans “made, insured, or securitized by any agency or instrumentality of the United States, any Government Sponsored Enterprise, or a Federal Home Loan Bank, or the rights and obligations of any lender, issuer, servicer or trustee of such obligations, including servicers for the Government National Mortgage Association.”
  • With respect to banking organizations: (1) eliminate fees charged for the use of ATMs that are owned or operated by the regulated banking organization; (2) eliminate any overdraft fees; and (3) eliminate any credit card late payment fees. (Regulated Institutions are not limited to these three requirements and may take additional actions if they so desire.)

Within ten (10) business days of the implementation of this regulation, i.e., by April 7, 2020, the Regulated Institution shall e-mail, publish on their website, mass mail, or otherwise broadly communicate to its customers how to apply for relief. The criteria, developed by the Regulated Institution, “shall be clear, easy to understand, and reasonably tailored to the requirements of the [R]egulated [I]nstitution to assess whether it will provide, consistent with the goals of Executive Order 202.9 and this regulation, applicable state and federal law, and the principles of safe and sound business practices, COVID-19 relief.” 3 NYCRR § 119.3(d)(1).

In addition, Section 119.3(e) outlines the requirements for processing applications for relief, as follows:

  • The Regulated Institution must process and respond to the request for relief no later than ten (10) business days after receiving all the information it needs to process the application;
  • The Regulated Institution must process the application for relief expeditiously; the Regulated Institution is responsible for developing and implementing the procedures to do so; and
  • Decisions on the application for relief shall be made in writing and provide the consumers the next steps if they are approved or denied the request.

Finally, Section 119.39(4) modifies Section 39 of the New York Banking Law concerning unsafe and unsound business practices. Under the modified section, it is an “unsafe and unsound business practice” if any Regulated Institution does not “grant a forbearance of any payment due on a residential mortgage for a period of ninety (90) days to any individual who has applied for such forbearance and demonstrated a financial hardship as a result of the COVID-19 pandemic as described herein.” NY DFS will consider, among other things, the adequacy of the process established by the Regulated Institution, the thoroughness of the review of the application, and the payment history, creditworthiness and financial resources of the borrower, in assessing whether a regulated institution has engaged in an unsafe or unsound practice. Regulated Institutions must also maintain copies of all files related to implementation of Part 119 for seven (7) years from March 24, 2020 (date of implementation of the regulation) and must make such files available for inspection at the NY DFS’ next examination of the Regulated Institution.

The standards and procedures set forth in Part 119 shall be in effect for ninety (90) days. After the expiration of the 90-day period, NY DFS will renew this emergency regulation, if necessary.

Conclusion

Regulated Institutions must implement processes and procedures to comply with Part 119 by April 7, 2020, including immediately setting up procedures to review applications for relief and taking the necessary steps to notify its customers of how to apply for such relief. Thus, Regulated Institutions should determine which of its loans, if any, are subject to this regulation and accept and review its customers for forbearance relief as described in the regulation.

Mr. Streibich would like to thank Diana M. Eng, Andrea M. Roberts, and Scott D. Samlin for their assistance in developing this alert.


1 This Alert provides the highlights of the regulation, which does not apply to any commercial mortgage or any other loans not described in the regulation. Please visit the NY DFS website for the complete regulation: dfs.ny.gov/system/files/documents/2020/03/re_new_pt119_nycrr3_text.pdf.

NY Appellate Court Holds Default Letter Stating Lender “Will Proceed to Automatically Accelerate” Did Not Accelerate the Debt and Thus Did Not Trigger the Statute of Limitations

Diana M. Eng and Alina Levi

In U.S. Bank N.A. v. Gordon, 176 A.D.3d 1006 (2d Dept. 2019), the New York Appellate Division, Second Department, held that a notice of default stating that if the loan was not made current, the lender “will automatically accelerate [the] loan,” was “merely an expression of future intent” and therefore did not accelerate the borrowers’ debt. As such, the Second Department held that the notice of default did not trigger the statute of limitations.

Summary of Facts and Background

On or about November 3, 2005, Steve and Ashia Gordon (“Defendants”) executed a note (“Note”), which was secured by a mortgage (“Mortgage”) against a property in Queens, New York. On or about July 1, 2011, Defendants defaulted on the loan. As a result, America’s Servicing Co. (“ASC”) sent a letter to Defendants, dated September 21, 2008 (“Notice of Default”), advising them that the loan was in default, and that, “[u]nless the payments on your loan can be brought current by October 21, 2008, it will become necessary to accelerate your Mortgage Note and pursue the remedies provided for in your Mortgage or Deed of Trust.” Moreover, the Notice of Default warned that “failure to pay this delinquency, plus additional payments and fees that may become due, will result in the acceleration of your Mortgage Note. Once acceleration has occurred, a foreclosure action . . . may be initiated.” In addition, the Notice of Default stated that “[t]o avoid the possibility of acceleration,” Defendants were required to make certain payments by a specific time, or ASC “will proceed to automatically accelerate your loan.” (Emphasis added).

On June 29, 2017, plaintiff U.S. Bank N.A. (“U.S. Bank”) commenced a foreclosure action to enforce the Defendants’ Mortgage in the Queens County Supreme (the “Lower Court”). Defendants moved to dismiss the action pursuant to CPLR 3211(a)(5) alleging that the statute of limitations to foreclose had expired. Specifically, Defendants argued that the entire debt was accelerated on September 21, 2008, based on the Notice of Default. Continue reading

New York Appellate Court Rejects Usage of a Mortgage’s Reinstatement Provision as a Defense to the Expiration of the Statute of Limitations

By: Wayne Streibich, Diana M. Eng, Jonathan M. Robbin, and Diana M. Eng

On March 13, 2019, in a case of first impression, New York’s Appellate Division, Second Department (“Second Department”) issued a decision holding the reinstatement provision of a mortgage does not prevent the acceleration of the loan prior to entry of a foreclosure judgment. In Bank of New York Mellon v. Dieudonne, 2019 WL 1141973 (2d Dept. Mar. 13, 2019), the Second Department affirmed the Kings County Supreme Court’s decision granting defendant Dieudonne’s (“Defendant”) motion to dismiss the complaint pursuant to CPLR 3211(a)(5) because the foreclosure action was barred by the expiration of the statute of limitations. Specifically, the Second Department held that “the extinguishment of the defendant’s contractual right to de-accelerate the maturity of the debt pursuant to the reinstatement provision of paragraph 19 of the mortgage was not a condition precedent to the plaintiff’s acceleration of the mortgage” and, therefore, acceleration occurred upon commencement of the prior foreclosure action.

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NY’s Fourth Department Holds That Notice of Default Did Not Provide Clear and Unequivocal Notice to Accelerate the Debt

By: Andrea M. Roberts and Diana M. Eng

In Ditech Financial LLC v. Corbett, 2018 WL 6006682, at *1, —N.Y.S.3d —- (4th Dept. Nov. 16, 2018), the Appellate Division, Fourth Department, held that a notice of default sent to the borrowers-defendants, which discussed a possible future event, did not provide clear and unequivocal notice sufficient to accelerate the debt, thereby triggering the statute of limitations.

In January 2016, plaintiff, Ditech Financial LLC (“Plaintiff”), commenced an action to foreclose against borrowers, Timothy Corbett and Sheila Corbett (“Borrowers”). Plaintiff moved for summary judgment (the “Motion”), and Borrowers opposed the Motion on the grounds that the statute of limitations to foreclose had expired. In support, Borrowers alleged that a January 2010 notice of default (“2010 Default Letter”) sent by Plaintiff’s predecessor-in-interest accelerated the debt and therefore, the statute of limitations to foreclose began to run on the entire debt at that time. The Onondaga County Supreme Court (“Lower Court”) granted Plaintiff’s Motion. Borrowers appealed. Continue reading