The Second Department, reversing Supreme Court, determined the foreclosure action was commenced after the statute of limitations had run. The bank claimed the defendant acknowledged the debt in a loan modification agreement, starting the statute of limitations anew. But the bank did not present evidence of the agreement in admissible form:
The plaintiff argues that the defendant entered into a loan modification agreement, which constituted an acknowledgment of the mortgage debt under General Obligations Law § 17-101 sufficient to reset the statute of limitations to commence a future foreclosure action on the mortgage. “General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt” … . “To constitute a valid acknowledgment, a ‘writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it'” … . “In order to demonstrate that the statute of limitations has been renewed by a partial payment, it must be shown that the payment was accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder” … . Bayview Loan Servicing, LLC v Paniagua, 2022 NY Slip Op 04708, Second Dept 7-27-22
Practice Point: Plaintiff bank did not demonstrate defendant acknowledged the mortgage debt in a loan modification agreement (thereby re-starting the statute of limitation for a foreclosure action). The evidence of the debt-acknowledgment presented by the bank did not meet the requirements of General Obligations Law 17-101. Therefore the statute of limitations was not revived. Defendant’s motion to dismiss the foreclosure complaint as untimely should have been granted.