Peter T. Roach & Associates, P.C.  litigator, Jon Ullmann, recently prevailed in defeating a motion to dismiss for client Wells Fargo Bank in a mortgage foreclosure action.  The mortgage was executed in February of 1999, between Windsor Burke (defendant) and Delta Funding Corp.  On August 29^th, 2002 Delta Funding Corp assigned the mortgage to Wells Fargo Minnesota (“WFM”).  In June of 2002, before the assignment from Delta  to WFM had been effectuated, WFM commenced a foreclosure proceeding against the borrower.  The court dismissed the foreclosure on the basis that WFM lacked standing since at the time the case was commenced, WFM was not the assignee of the mortgage.  The case was discontinued by an order issued in 2009.  Meanwhile in June of 2009, WFM assigned the mortgage, with a principle amount of $45,000.00, to our client, Wells Fargo Bank.  In November of 2009, our client commenced another foreclosure proceeding against the borrower.   The defendant made a pre-answer  motion to dismiss on the basis that the statute of limitations was triggered by the 2002 foreclosure, and thus had expired.  While our client was not a party in the 2002 proceeding, the defendant argued that the mortgage was accelerated in 2002 which triggered the statute of limitations; thus, all parties are barred from foreclosing since the six year statute of limitations would have expired in 2008. According to New York Law, the statute of limitations for foreclosure actions is 6 years and is triggered when the mortgage is accelerated.

     Faced with a seemingly flawless motion to dismiss, Jon Ullmann was able to persuade the court that the date of acceleration asserted by the defendant was incorrect.  He conceded that the statute of limitations is triggered when the mortgage is accelerated.  However, Jon successfully argued that since the plaintiff in the 2002 action, WFN,  did not have standing to foreclose, it did not have standing to accelerate the mortgage.  Therefore, the mortgage was not accelerated in 2002, and the statute of limitations had not run.  The court agreed with Jon and defendant’s motion was denied.