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Ask Attyadvisor Your Own Question
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 5546
Experience:  28 years of experience in general practice, real estate law and estate law.
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Hi, I have another home that has also been in foreclosure

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I have another home that has also been in foreclosure for 6 years in ny and to my understanding the statue of limitations is 6 years for them to foreclose. However, in my case they had an active foreclosure and the bank had closed it themselves due to errors. Two years ago they opened a new case and bought an index number, but never a rji. The case has just been lingering. Since then they have changed servicers, so it is a different company that sends me letters and statements. They never file any motions or done anything new. To my knowledge if this case gets dismissed they can never foreclose again since it would be passed the statue of limitations. Is this true? Also, the atty on this case is the same that was before that had dismissed the case due to errors and I hear this firm has done a lot of errors and fraud. I was wondering should I just sit quiet to gain time or should I put a motion to dismiss. I do not want to stir the waters if it is quiet, but I also do not want to loose my chance to dismiss before they get active if indeed now would be a better time. Some advice please
Hello and thank you for your question.

You are correct that there is a 6 years statute of limitations. The lender has 6 years to bring the action from the acceleration date. The foreclosure case can take longer then 6 years, however, the action must be filed within the 6 year period.

Solomon Holding Corp. v. Golia, 55 A.D. 3d 507, 868 N.Y.S. 2d 612 (1st Dept. 2008

I am not certain of the exact situation in your case, however, it appears that you should file a motion.

A motion to dismiss with prejudice so lender cannot bring the action again.
Attyadvisor and 7 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you. Since they have done nothing in two years and they have closed the previous one themselves how likely do you think the judge would be to grant my motion to dismiss with prejudice? Or do you think it would be better to wait it out longer?
Your welcome.

I am sure the Judge is not pleased that the case is lingering. That being said, you never know what the Judge will order.
Thank you.
Customer: replied 3 years ago.
Just wanted to confirm one thing with you. If the judge did dismiss it without prejudice could they still bring the action again since already passed 6 years. Also, if they did could I put a motion to dismiss on the basis of statue of limitations?

without prejudice means they can bring the action again. If they failed to file a foreclosure within 6 years after acceleration then the statute has run out and they are too late to file. The foreclosure can last for 10 years as long as it was filed within the 6 years.

Customer: replied 3 years ago.
I understand the foreclosure can last as long as it takes. However, if they had filed and the case gets dismissed then they can not refile if after 6 years? Is this correct?
If it is dismissed with prejudice they cannot bring the case again.
Attyadvisor and 7 other Real Estate Law Specialists are ready to help you
Thank you.
Customer: replied 3 years ago.
I just saw my foreclosure action and it seems like my loan is part of mers. I plan to hire an atty for this. However, does it hurt me or make a difference that I never answered the foreclosure complaint?
It sounded like a Mers situation. The attorney should be able to assist regardless of whether answered the complaint.
Attyadvisor and 7 other Real Estate Law Specialists are ready to help you
Thank you.
Customer: replied 3 years ago.
Hi Leslie,

Hope all is well. I have a question. About the home that has the mers situation. If indeed I win free and clear title to what is your advice to my situation. See I plan to do a bk because I owe 200k in debt and have this and one other home in foreclosure. This was all due to the market crash 6 years ago. I am just waiting for the right time to do the bk. In your opinion If I win the house free and clear when would be the best time to do the bk or would I be able to save the house and not include it in the bk. or is it possible i put it in my husbands name? He does not owe any money? I don't need to do a bk anytime soon. I am just trying to figure out how to handle this, so no one can touch the house if I did get free title on it. Any advice would help. Please let me know if you need more info or want me to clarify anything. Thanks so much.
If you prevail in a quiet title you own the home free and clear.
Customer: replied 3 years ago.
I understand, but if I go to sell it in the future before my bk could creditors take the profit? Or if I do a bk before that could the bk take the house away?
That is a question that would best be handled by a BK attorney. Let me see if I can switch the category. Thank you.
Customer: replied 3 years ago.
Thank you. I appreciate all your help and honesty.