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Attorney 1
Attorney 1, Attorney
Category: Real Estate Law
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I am representing the assignee of the mortgage and note.

Customer Question

Customer: I am representing the assignee of the mortgage and note. this is a new york action. The first action was commenced on 5/24/2010. the mtg and note were assigned to my client in July 2010. I continued the action but it was dismissed without prejudice in May 21, 2014. I started the 2nd action July 2014; because I thought a notice to cure was not served and only an acceleration notice was served I decided to serve valid notice to cure and valid notice of acceleration and then filed another action which I did IN JULY 2015- but I never discontinued the July 2014 action (the 2nd action)- which by the way the Defendant never Answered.
JA: Thanks. Can you give me any more details about your issue?
Customer: Now the Defendants have now interposed Answers and the defense that I am concerned with is the one that says the 2015 action should be dismissed because the other action was pending and I never obtained leave of court to discontinue it as required by statute. I am concenred that a) court may deny a motion to dicontinue the 2014 action and I will then be in limbo and /or b) court may dismiss the 2015 action and then the statue of limitations will have run. Question: if the action (s) are dismissed dont I still have til May 23, 2016 to re file the action since the 1st one which was dismissed was commenced 5/24/10 and that action triggered the accleration that survived the dismissal of the aat action in 2014? sorry to have run long but I really could use your reponse.I await your reponse.
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Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Attorney 1 replied 10 months ago.

Hello, and welcome.

Tricky situation, but I think you are right in that you would have until May, 2016 to refile the action due to survival of the acceleration.

Also, it seems like the defense was just stated in the answer, not in a motion to dismiss? If so, you are ahead of the eight ball and I would expect you could still dismiss the second action, then argue that the defendant was essentially non-participatory in that second action and it was not actually being litigated, if the defense is ultimately asserted. You could point out that there was no redundancy, and no prejudice, and that failure to timely dismiss the first action neither compounded the issues or impaired judicial economy, and that the matter was actually litigated in the 2015 action, if that is indeed the case. The courts prefer matters to be determined on their merits and prefer not to impart an inequitable windfall on one party or another. And the courts do seem to have a general lender bias.

If I can be of further assistance, just let me know. If I have addressed your issue, please remember to leave a positive rating when prompted.

Good luck!

Best,

Attorney 1

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