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Case Study · Foreclosure Defense · Appellate Division

Three foreclosures.Twelve years.Mortgage canceled.

$397,765Mortgage loanThe law allows six years. Case dismissed.

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The Result
The mortgage on her property
$397,765
Ordered canceled and discharged of record.
The 2022 foreclosure
Dismissed
Filed more than twelve years after the loan was called due.
The company's appeal
Lost
We kept the win. All four judges agreed, with costs.
Appellate Division, Second Department · James Tierney, Maria Garber and Steven Amshen, Petroff Amshen LLP · 2026
Prior results do not guarantee a similar outcome. Every case turns on its own facts.
The Case

The clock started in 2010.
The 2022 foreclosure was dismissed.

Quick AnswerOn February 4, 2026, the Appellate Division, Second Department unanimously affirmed an order of the Supreme Court, Kings County that dismissed as time-barred a 2022 foreclosure brought by MTGLQ Investors, L.P., the company that took over the mortgage, against Petroff Amshen's client and granted her counterclaim under RPAPL 1501(4) to cancel and discharge of record the $397,765 mortgage on her Brooklyn property. The six-year statute of limitations began to run on September 9, 2010, when CitiMortgage sued and called the whole loan due, and under the 2022 Foreclosure Abuse Prevention Act the later discontinuances "did not serve to revive or reset the statute of limitations."

The six-year clock

In New York a lender has six years to foreclose once it calls the whole loan due, and filing a foreclosure complaint that demands the full balance starts that clock. When the six years run out, the owner can ask the court to cancel the mortgage and clear it from the property records.

Under the Foreclosure Abuse Prevention Act, which took effect December 30, 2022, a lender that voluntarily drops its own foreclosure case does not get a fresh six years. That rule decided this case.

Three tries at the same loan

On April 27, 2007, our client signed a $397,765 note to CitiMortgage, Inc., secured by a mortgage on residential property in Brooklyn. On September 9, 2010, CitiMortgage sued to foreclose and elected in its complaint to call the entire balance due. It discontinued that case on February 23, 2011.

CitiMortgage assigned the mortgage to Nationstar Mortgage, LLC in April 2012. Nationstar filed a second foreclosure on December 4, 2013. In 2019 it asked to discontinue, and the court let it. Neither case reached a judgment.

On October 5, 2022, MTGLQ, saying it held the note, filed a third foreclosure, more than twelve years after CitiMortgage called the loan due. Our client answered that the case came too late and counterclaimed to cancel the mortgage.

How the third lawsuit failed

Our client moved for summary judgment dismissing the case and on her counterclaim. MTGLQ's answer was to attack the 2022 law itself. It said the law did not apply retroactively to its loan, and that applying it would violate its due process rights and the Takings and Contracts Clauses of the United States Constitution.

On November 27, 2023, the Supreme Court, Kings County granted the motion. It dismissed the complaint against our client and, in effect, granted her counterclaim to cancel and discharge the mortgage of record. MTGLQ appealed.

Once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt.Appellate Division, Second Department, February 4, 2026

Our client had shown the clock started September 9, 2010 and that MTGLQ sued more than six years later. To stop summary judgment, MTGLQ needed to raise a real factual dispute, and the Appellate Division held it had not. The 2011 and 2019 discontinuances "did not serve to revive or reset the statute of limitations." MTGLQ's constitutional arguments were "without merit." All four justices agreed, and the order was affirmed with costs.

The result

  • MTGLQ's foreclosure against our client dismissed as time-barred.
  • Summary judgment, in effect, on her counterclaim to cancel and discharge the $397,765 mortgage of record.
  • MTGLQ's challenges to the 2022 law rejected as without merit.
  • Affirmed by a unanimous Appellate Division, Second Department, with costs.
MTGLQ needed the clock to start over. The 2022 law said it could not.
Timeline

Three lawsuits.
One clock.

  1. Sep 2010
    CitiMortgage sues and calls the whole loan due.
  2. Feb 2011
    CitiMortgage drops its case.
  3. Dec 2013
    Nationstar sues again, and later drops it.
  4. Oct 2022
    MTGLQ files this case.
  5. Nov 2023
    Dismissed. Mortgage ordered canceled.
  6. Feb 2026
    Affirmed on appeal.
The Legal Record · Statute of Limitations

September 9, 2010.
That was the defense.

The record, in order: what the law gives a lender, when MTGLQ filed, and what the courts held on each argument.

What the law gives a lender · CPLR 213(4)
6 years
Once a lender calls the whole loan due, it has six years to foreclose. Filing a foreclosure that demands the full balance calls it due.
When MTGLQ filed · the record
Too late
The clock started September 9, 2010. MTGLQ filed this case October 5, 2022, "more than six years later."
The argumentMTGLQ saidThe Court held
01
The 2010 case called the loan due.CPLR 213(4) · acceleration
MTGLQ saidIts 2022 foreclosure was filed in time.
The Court heldNot rebutted
Our client showed the six years began on September 9, 2010, when CitiMortgage sued and called the whole loan due, and that this case came more than six years later. MTGLQ "failed to raise a triable issue of fact."
02
Dropping a case does not reset the clock.FAPA · CPLR 3217(e) and 203(h)
MTGLQ saidThe earlier foreclosures had been discontinued, so the clock started over.
The Court heldRejected
Under the 2022 Foreclosure Abuse Prevention Act, the discontinuances of the 2010 and 2013 cases "did not serve to revive or reset the statute of limitations."
03
The 2022 law applies to this loan.FAPA · retroactivity and the Constitution
MTGLQ saidThe law does not apply retroactively, and applying it would violate due process and the Takings and Contracts Clauses.
The Court heldRejected
Those arguments are "without merit."
04
Out of time means the mortgage comes off the record.RPAPL 1501(4) · cancel and discharge
MTGLQ saidIt appealed the order that granted our client's claim to cancel the mortgage.
The Court heldAffirmed
The Supreme Court "properly granted" summary judgment dismissing the complaint and, in effect, on our client's counterclaim to cancel and discharge of record the mortgage.
Three lawsuits on one loan.The clock started once, in 2010.
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Legal Analysis · Plain English

What the Court decided,
and why it matters.

1. The first complaint that calls the loan due starts the clock

Under CPLR 213(4) a lender has six years to foreclose. Once the debt is accelerated, the six years run on the entire balance, and filing a foreclosure that elects to call the whole amount due is an acceleration. CitiMortgage's September 9, 2010 complaint did exactly that.

2. Dropping a case does not buy more time

CitiMortgage discontinued its case in 2011, and Nationstar discontinued its case in 2019. CPLR 3217(e) and 203(h), both added by the Foreclosure Abuse Prevention Act, say a voluntary discontinuance does not revive or reset the limitations period. The Appellate Division applied them here.

3. The 2022 law reaches cases filed before it

MTGLQ filed its case in October 2022, before the law took effect. It argued the law did not apply retroactively, and that applying it would violate the United States Constitution. The Appellate Division held those arguments were without merit.

4. When the time is gone, the mortgage can come off the record

RPAPL 1501(4) lets a person with an interest in the property ask the court to cancel and discharge a mortgage once the time to foreclose has expired. Our client brought that claim as a counterclaim, and the order granting it was affirmed.

What this means if you are facing foreclosure

If a lender first demanded your full balance more than six years ago, the foreclosure you are facing now may be too late. Dropping an earlier case does not buy the lender more time.

The loan's full history matters. Here the date that decided everything was a complaint filed in 2010, twelve years before the case that was dismissed. Old court files and assignment records are where a defense like this is found.

Winning the case was only part of it. The Brooklyn court also granted the claim to cancel the mortgage of record, so it can be cleared from the property's title records. Ask about that claim from the start.

Attorneys on the Case

The attorneys
behind the win.

James Tierney, Maria Garber and Steven Amshen of Petroff Amshen LLP represented our client in the Appellate Division, Second Department.

James Tierney, Petroff Amshen LLP
Appellate counsel
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Maria Garber, Petroff Amshen LLP
Appellate counsel
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Steven Amshen, Petroff Amshen LLP
Appellate counsel
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Questions

Questions people search
about foreclosure in New York.

What is the statute of limitations for foreclosure in New York?
Six years under CPLR 213(4). Once a lender calls the whole loan due, the six years run on the entire debt. Filing a foreclosure complaint that demands the full balance is one way a lender does that.
Does dropping a foreclosure reset the statute of limitations in New York?
Not since the Foreclosure Abuse Prevention Act took effect on December 30, 2022. Under CPLR 3217(e) and 203(h), a voluntary discontinuance does not revive or reset the limitations period. Here the Appellate Division held the discontinuances of the 2010 and 2013 cases "did not serve to revive or reset the statute of limitations."
Does FAPA apply to loans and foreclosures from before 2022?
In this case it did. The loan was made in 2007, the clock started in 2010 and the case was filed in October 2022, before the law took effect. The Appellate Division held the arguments against retroactive application were "without merit."
Is FAPA constitutional?
The company that took over the mortgage, MTGLQ Investors, L.P., argued that applying the 2022 law to its loan would violate its due process rights and the Takings and Contracts Clauses of the United States Constitution. The Appellate Division, Second Department held those arguments were "without merit."
What if the mortgage changed hands after the first foreclosure?
In this case the clock did not start over. CitiMortgage called the loan due in 2010 and assigned the mortgage to Nationstar in 2012, and the company that sued in 2022, MTGLQ Investors, L.P., said it held the note. The Appellate Division held the six years ran from September 9, 2010.
Can a mortgage be canceled if the time to foreclose has run out?
Yes. Under RPAPL 1501(4), a person with an interest in the property can ask the court to cancel and discharge the mortgage once the time to foreclose has expired. Our client asked for that in a counterclaim, and the order granting it was affirmed.
How long did this case take?
The third foreclosure was filed on October 5, 2022. The Supreme Court, Kings County ruled for our client on November 27, 2023, and the Appellate Division affirmed on February 4, 2026.
Does Petroff Amshen represent clients outside New York?
No. Petroff Amshen represents clients in New York only.
Glossary: the terms in plain English
Statute of limitations
The deadline to file a lawsuit. For a New York foreclosure it is six years under CPLR 213(4).
Acceleration
The lender calling the entire loan balance due at once, often in a foreclosure complaint. It starts the six-year clock on the whole debt.
Voluntary discontinuance
A lender ending its own foreclosure case. Since FAPA, it does not reset the statute of limitations.
FAPA
The Foreclosure Abuse Prevention Act, in effect since December 30, 2022, which stops lenders from resetting the six-year clock.
Summary judgment
A ruling on the papers, without a trial, when there is no real factual dispute. Here it went to our client.
Counterclaim
A claim the person being sued brings back against the plaintiff in the same case. Here, the claim to cancel the mortgage.
Cancel and discharge of record
Removing a mortgage from the public property records so it no longer burdens the title.
Affirmed
The appeals court agreed with the lower court's order and left it in place.
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James Tierney, Petroff Amshen LLP
Appellate counsel on this case
Maria Garber, Petroff Amshen LLP
Appellate counsel on this case
Steven Amshen, Petroff Amshen LLP
Appellate counsel on this case
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