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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3373
Experience:  25 years of experience in general practice, real estate law and estate law.
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Is it true that in NY there is a statue of limitations in which

Resolved Question:

Is it true that in NY there is a statue of limitations in which the lender has to foreclose on a home? I understand if they start it then it can take twenty years and will be fine. However, my question is if the lender started it within the 6 years and had it dismissed without prejudice both times and now it is over six years can they still start the foreclosure over? And if they do can I oppose saying that their time is up? If this is not correct then please explain how the statue of limitations works? Thank you.
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 10 months ago.
Welcome and thank you for your question. I will be the professional that will be assisting you.


The only requirement is that the lender must file the action within 6 years of the acceleration of the mortgage. As long as the initial case was filed within 6 years they can they can keep bringing the foreclosure action unless or until the case is dismissed with prejudice.
Customer: replied 10 months ago.
I had thought from what I heard is that even if it is dismissed the statue of limitations still counts from the time the last mortgage payment. If it is thrown out and it passed the limitations they can not bring it again unless it stood opened. You are saying this is not true? You ate saying they just need to start it within the 6 years?
Expert:  Attyadvisor replied 10 months ago.

 

I am saying that the initial suit needs to be filed within 6 years. Once it is filed the time frame has been met.

The statutes of initiations is the timeframe within which a lawsuit must be filed.

If the suit was filed 6 years and 1 day after the acceleration date the suit was not initiated within the statutory period and is time barred. They key to the statute of limitations is filing the lawsuit within the time period. One day after the 6 years and they would have filed too late.

The statute of limitations sets out when the suit must be filed.

My suggestion to you is to file a quiet title action to stop the lender from clouding your title.
Customer: replied 10 months ago.
Do you think I would qualify for quiet title? How can that help my situation? Thank you
Expert:  Attyadvisor replied 10 months ago.

This sounds like a Mers situation and I think you would qualify.
If they have not been able to prove their case by now there is an issue.

Here is some information on quiet title/confirm title actions. http://eichomes.com/2218/quiet-title-action-new-york/

File a quiet title action then file a motion to stay the foreclosure pending the outcome of the quiet title lawsuit.

These are the forms to file this action http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-NY-B-confirm~title

This may end the lender's case once and for all.

Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3373
Experience: 25 years of experience in general practice, real estate law and estate law.
Attyadvisor and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 10 months ago.
Since everything is quiet right now. Do you think I should start now or wait for them to make a move?
Also, for the quiet title do I make this motion in the foreclosure case or start my own lawsuit?
Expert:  Attyadvisor replied 10 months ago.
Quiet title is a separate lawsuit.

A quiet title action is a lawsuit to remove the clouds/liens on the title to your property. If you were successful with your action you would have title to your property free and clear from this lender.
Customer: replied 10 months ago.
Thank you
Expert:  Attyadvisor replied 10 months ago.
You are most welcome. I hope everything works out in your favor.
Customer: replied 10 months ago.
Thanks again for all your help and making me realize that mers was involved in this loan. I have another question. Due to my foreclosures and the market I have these debts as well as credit cards from trying to stay above water when the market crashed. I plan to do a bk, but waiting for the rigjht time since I am trying to work something out with one of the banks and if does not work i want to use it at end to stall and wipe out remaining debts. In any case if I was to win quiet title and own the house with the mers issue free and clear is there a way I could keep it and do the bk or could I pass it to my husband in his name since he is not on any of my loans and wait to do the bk? What would be your recommendation on how I would be able to sell the house if I won it free and clear without all my creditors taking money. Is a chapter 7 or 13 best or just transfer to my husbands name first. Or can I save house in my name and do a bk? If it helps I owe about 200k in loans and debts. The house is worth about 550k plus I have the other house I told you about in foreclosure that's worth about 650k. That is the one I am fighting with the atty. I did not want to do a bk right away since I am saving that til end, but what would be your recommendation if I was to win the mers home free and clear. I would not want to win it and go to sell it and lose all the money. I wouldn't mind waiting to sell it if I had to and just living in it or renting it, but eventually I may want to sell it as well as protect it if I do a bk? Any suggestions. Sorry if sounds a little repetitive. Just wanted to clarify, so you understand the situation.

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