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Case Study · Foreclosure Defense · Kings County

Sued once. Lost.Sued again.Mortgage canceled.

$21,208Attorney fees and costs The bank lost.

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The Result
Fees awarded
$21,208
In attorney fees and costs awarded to our clients against the bank.
The mortgage on the property
Canceled
We got it wiped off the public record.
Second foreclosure on the same mortgage
Dismissed
Thrown out for good. The bank cannot bring it again.
Supreme Court, Kings County · 2025
Prior results do not guarantee a similar outcome. Every case turns on its own facts.
The Case

The bank lost once and sued again.
The mortgage was canceled.

Quick AnswerIn 2025, the Supreme Court of the State of New York, Kings County, dismissed with prejudice a second foreclosure that a bank acting as trustee brought on the same Brooklyn mortgage, after its first foreclosure had gone to trial and been dismissed. The Court held that "the prior action served as an acceleration and the instant case was not timely filed," canceled and discharged the mortgage, and ordered the bank to pay $21,208.85 in attorney fees and costs to Petroff Amshen's clients.

What the bank tried

Our clients own a property in Brooklyn. A bank acting as trustee holds a mortgage on it, and that bank had already tried to foreclose once. The first case went to trial, and it was dismissed.

Years later the bank filed again on the same mortgage. Its position was that the first lawsuit did not count, so the deadline to foreclose had never started running. It asked the Court for summary judgment and an order of reference, the step that appoints a referee and moves a foreclosure toward a sale.

Why the first lawsuit mattered

New York gives a lender six years to foreclose once the whole loan has been called due. That deadline comes from CPLR 213(4). Filing a foreclosure that demands the full balance is one way a lender calls the loan due, and the six years run from there.

When the six years run out, the lender loses the right to foreclose. New York then lets the owner ask the court to cancel the mortgage itself, under RPAPL 1501(4). That is what our clients asked for here.

How we beat it

We moved for summary judgment, asking the Court to decide the case on the papers and throw out the bank's complaint. We also asked for judgment on our clients' own claims, one to clear the mortgage from their title and one for their legal fees.

The Court looked at how the first case ended. The judge in that case did not make a finding that the bank lacked standing or that it failed to send the notice required before calling the loan due. Without a finding like that, the first lawsuit counted. In the Court's words, "the prior action served as an acceleration and the instant case was not timely filed."

Once the deadline had passed, the mortgage could no longer be enforced. "As the statute of limitations has passed on the lien," it is "unenforceable," and our clients got judgment on their claim to clear the title. Their mortgage let the lender recover its attorneys' fees, and under RPL 282 the Court held our clients were entitled to reasonable fees "as the prevailing parties."

What the Court ordered

The Court granted our motion and denied the bank's in 2025, then signed a judgment that:

  • Dismisses the foreclosure with prejudice, as time-barred.
  • Cancels and discharges the mortgage, and directs the County Clerk to mark the record.
  • Cancels the notice of pendency, the public filing that warned a foreclosure was pending.
  • Denies the bank's request for summary judgment and an order of reference.
  • Awards our clients $21,162.50 in attorney fees and $46.35 in costs, $21,208.85 in total, against the bank.
The bank said the first case did not count. The Court said it started the clock.
Timeline

Sued, lost, sued again.
One clock.

The first lawsuit
Called the whole loan due. The clock started.
Six years later
The deadline to foreclose passed.
The second lawsuit
Filed too late. Dismissed.

New York gives a lender six years to foreclose once it calls the whole loan due. The Court held the first lawsuit did that.

  1. First case
    The bank sues and calls the whole loan due.
  2. Trial
    The first case is dismissed.
  3. Six years
    The deadline to foreclose passes.
  4. Years later
    The bank sues again on the same mortgage.
  5. Our motion
    We ask the Court to rule on the papers.
  6. 2025
    Dismissed. Mortgage canceled.
The Legal Record · Statute of Limitations

The first case started the clock.
That was the defense.

The record, in order: what the law gives a lender, what the bank argued, and what the Court held.

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 the bank came back
Too late
The six years ran out before the bank sued again.
The argumentThe bank saidThe Court held
01
The first lawsuit counted.CPLR 213(4) · acceleration
The bank saidThe first lawsuit did not count, so the deadline to foreclose never started.
The Court heldRejected
"The prior action served as an acceleration and the instant case was not timely filed."
02
Out of time means the mortgage is gone.RPAPL 1501(4) · quiet title
The bank saidThe mortgage still stands, and the case should move toward a sale.
The Court heldRejected
"As the statute of limitations has passed on the lien," it is "unenforceable." Mortgage canceled and discharged.
03
The owner who wins can recover attorney fees.RPL 282 · attorney fees
The bank saidIt did not dispute that the mortgage provides for attorney fees.
The Court heldFor our clients
Our clients are entitled to reasonable fees "as the prevailing parties." The Court awarded $21,208.85.
Sued, lost, sued again.The clock had already run out.
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Legal Analysis · Plain English

What the Court decided,
and why it matters.

1. Six years, once the loan is called due

Under CPLR 213(4) a lender has six years to foreclose once it calls the whole loan due. Filing a foreclosure that demands the full balance does exactly that.

2. A dismissed first case can still start the clock

The bank argued its first lawsuit did not count. The Court held it did, because the earlier judge made no finding that would undo it. The six years ran from the first case.

3. When the time is gone, the mortgage comes off the record

RPAPL 1501(4) lets an owner cancel a mortgage once the time to foreclose has run out. The Court found the lien unenforceable and canceled the mortgage.

4. Fees run both ways

Real Property Law 282 gives a homeowner who successfully defends a foreclosure the same right to reasonable attorney fees that the mortgage gives the lender. The Court awarded $21,208.85.

What this means for a New York homeowner

If a bank sued you once, lost, and is now back on the same loan, the dates may decide the case. The first lawsuit may have started a clock that has already run out.

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 the lender calls the whole loan due. Filing a foreclosure that demands the full balance is one way a lender does that.
Can a bank foreclose again after losing its first foreclosure?
It can try. But if the first case called the whole loan due, the six-year clock started then. In this 2025 Brooklyn case the Court held the first lawsuit "served as an acceleration" and the second case "was not timely filed."
Does a dismissed foreclosure still start the six-year clock?
It can. Here the bank argued its first lawsuit did not count. The Court held it did, because the judge in the first case made no finding that would undo it.
Can a mortgage be canceled if the bank waited too long?
Yes. Under RPAPL 1501(4), once the time to foreclose has run out, an owner can ask the court to cancel and discharge the mortgage. The Court did that here.
What is quiet title?
A claim asking the court to remove a cloud on the owner's title, such as a mortgage that can no longer be enforced. Our clients won judgment on their claim to clear the title.
Can a homeowner recover attorney fees after beating a foreclosure?
Yes, when the mortgage lets the lender recover its fees. Real Property Law 282 gives the homeowner who wins the same right. The Court awarded $21,208.85 in attorney fees and costs.
What is an order of reference?
The order that appoints a referee to compute what the lender claims is owed, a step toward a foreclosure sale. The Court denied the bank's request for one.
What does dismissed with prejudice mean?
The claim is decided for good and cannot be brought again. The judgment dismissed this foreclosure with prejudice, as time-barred.
Does Petroff Amshen represent homeowners 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 once the loan is called due.
Acceleration
The lender calling the whole loan balance due at once, often by filing a foreclosure. It starts the six-year clock.
Quiet title
A claim asking the court to remove a cloud on the title, such as a mortgage that can no longer be enforced.
Order of reference
The order appointing a referee to compute what is owed, a step toward a sale.
Notice of pendency
A public filing against the property warning that a foreclosure is pending. Canceled here.
Dismissed with prejudice
Decided for good. The same claim cannot be brought again.
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