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FOR LAW EDUCATOR, ESQ.: In an instant foreclosure matter…

FOR LAW EDUCATOR, ESQ.:In an...
FOR LAW EDUCATOR, ESQ.:In an instant foreclosure matter filed in 2009 in NYS Supreme Court the judge ordered the below as a result of one (1) party in the action when in fact there were two (2) parties as defendants to the property. Presently, one of their privies a TRUST, N.A. AS TRUSTEE FOR XXX MASTER PARTICIPATION TRUST is trying to foreclose on the property, but using a payable date of March 2012 before the TRUST was even assigned, which was not the original acceleration date from the original date Dec 1, 2008 of the mortgage default.
A. The earlier case was lost by the plaintiff in 2013, whereby the judge ordered the following: (See attached PDF file for a better picture of what occurred.)Specifically, as it related to consent in the judge’s order as the judge only named one (1) party consenting to the action being dismissed without prejudice….Question 1: So, with that being said, what protections does the other non consenting defendant have as being obligated to the judge’s order as they never consented to a dismissal without prejudice? (Please cite a case in your answer.)Questions 2 and 3: Can I use collateral estoppel/ res judicata based issue of fact related to privies; namely, to the original instant foreclosure matter from 2009’s later assignments after opening another foreclosure matter? (I have found this case, which I believe works as a defense for this instance as follows: Gramatan Home v. Lopez, 46 N.Y.2d 481, 414 N.Y.S.2d 308, 386 N.E.2d 1328 (1979). However, please cite a more relevant case.)
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Customer reply replied 6 months ago
Did you receive a copy of the 2013 Order and Decision?
Answered in 1 day by:
12/26/2017
Law Educator, Esq.
Category: Legal
Satisfied Customers: 125,339
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only. Please feel free to ignore any phone service request, the expert does not send those unless asked by customer and they are sent by the site automatically.

1) The dismissal was after motion by the pro se defendant and it was without prejudice, meaning a new action could always later be filed WITHIN the statute of limitations. There is no case law to go with this, it is simply what the court order says pretty plain and clear.

2) Res judicata or collateral estoppel cannot be used so much here, it is not the same as Gramatan Home because there was no summary judgment, there was a dismissal without prejudice in this case. Dismissal without prejudice means a case can be refiled later if it is within the statute of limitations, so I do not see how you figure that res judicata or collateral estoppel or the Gramatan case would even apply here as there was no final judgment on any merits.

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Customer reply replied 6 months ago
First, the case's mortgage was accelerated in Dec 1, 2008 and this case was not refiled until Dec 6, 2017, which means it is outside of the statute of limitation of 6 years. This matter is mathematically 9 years outside of the Statute of Limitations. Are you saying that because the case was marked without prejudice, it supercedes the NY State Law?
Customer reply replied 6 months ago
Also, since Gramatan Home only delt with summary judgment do you know of another case that is similar to my case whereby without prejudice wins, if the statute of limitations has expired even though it is seemingly without merit. What bearing does acquiescence have on this matter according to CPLR 2219(a)?

Thank you for your reply.

No, I said above, if you reread it, that they still had to refile WITHIN THE SOL. So if they did not refile within the SOL, then their case should be barred by the statute of limitations still, even though it was previously dismissed WITHOUT prejudice.

This is a simple argument that the SOL has expired and they did not refile within the SOL after dismissal without prejudice, so their claims are time barred. The case is not even near as complex as even the Gramatan Home case.

Law Educator, Esq.
Category: Legal
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Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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