U.S. Bank Trust, N.A. v Boktor

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U.S. Bank Trust, N.A. v Boktor 2019 NY Slip Op 33289(U) October 31, 2019 Supreme Court, New York County Docket Number: 850251/2017 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 11/01/2019 10:33 AM NYSCEF DOC. NO. 77 INDEX NO. 850251/2017 RECEIVED NYSCEF: 11/01/2019 SUPREME COURT OF THE STATE OF ,NEW YORK NEW YORK COUNTY ' PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------~----------------X U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, INDEX NO. IAS MOTION 32 850251/2017 MOTION DATE NIA MOTION SEQ. NO. 001 -vAMIR BOKTOR A/KA AMIR F. BOKTOR, DIANA SAHWANI BOKTOR A/KIA DIANA BOKTOR A/KIA DIANA SAHWANlBOKTOR, BOARD OF MANAGERS OF 120 RIVERSIDE BOULEVARD AT TRUMP PLACE CONDOMINIUM, ENVIRONMENTAL CONTROL BOARD, PARKING VIOLATIONS BUREAU, TRANSIT ADJUDICATION BUREAU, JOHN DOES AND JANE DOES, SAID NAMES· BEING FICTITIOUS, PARTIES INTENDED BEING POSSIBLE TENANTS OR OCCUPANTS OF PREMISES, AND CORPORATIONS, OTHER ENTITIES OR PERSONS WHO CLAIM, OR MAY CLAIM, A LIEN AGAINST THE PREMISES DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 34, 35,.36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54,·55, 56, 57, 58, 59,60,61,62,63, 64,65,66, 67,68,69, 70, 71, 72, 73, 76 JUDGMENT-SUMMARY were read on this motion to/for The motion by defendants Amir and Diana Boktor ("Moving Defendants") for summary judgment dismissing this action is granted. Background This foreclosure action arises out of a property owned by the Moving Defendants located at 120 Riverside .Boulevard in Manhattan. In 2006, Mr. Boktor took out a loan for $1.048 million and plaintiff claims that the Moving Defendants stopped making monthly payments in February 2012. However, plaintiff's predecessor-in-interest brought a foreclosure action in 2009 \ 850251/2017 U.S. BANK TRUST, N.A., AS vs. BOKTOR; AMIR . Motion No. 001 1 of 6 Page 1of6 .i [*FILED: 2] NEW YORK COUNTY CLERK 11/01/2019 10:33 AM NYSCEF DOC. NO. 77 INDEX NO. 850251/2017 RECEIVED NYSCEF: 11/01/2019 that was later discontinued in September 2013 .'Then, in October 2013, plaintiff's predecessor-:ininterest brought another foreclosure action that was also discontinued in September 2017. Plaintiff commenced the instant action on November l, 2017. Moving Defendants claim that the instant action is time-barred because plaintiff's cause of action accrued when the first action began in 2009 and ~~pired on Dec~mber 1, 2015. In opposition, plaintiff points out that Amir Boktor filed for bankruptcy in 2011 and reaffirmed his debt during the course of that. litigation, which restarted the statute of limitations.· Plaintiff also claims that the statute of limitations was restarted again when Amir Boktorentered into a trial . modification plan in 2016. In reply, Moving Defendants deny that the debt was reaffirmed. They claim that in order l to acknowledge a debt, it"must be unconditional and unqualified and plaintiff failed to cite anything that meets this ·requirement. ·With respect to the bankruptcy action, Moving Defendants . acknowledge that Amir Boktor stated it was his intention to pay off the debt but a mere claim concerning a future act is not enough to restart the statute of limitations. Moving Defendants of limitations because it is a . also argue that the trial modification plan cannot re.start the statute J . conditional offer from plaintiff rather than a settJement agreement with a clear promise to pay a debt. Background "In moving to dismiss an action as barred by the statute of limitations, the defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact of limitations .is inapplicable or whether the action was commenced . as to whether the statute . within the statutory period, and the plaintiff must aver evidentiary facts establishing that the 850251/2017' U.S. BANK TRUST, N.A., AS vs. BOKTOR, AMIR Motion No. 001 2 of 6 Page 2 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 11/01/2019 10:33 AM NYSCEF DOC. NO. 77 INDEX NO. 850251/2017 RECEIVED NYSCEF: 11/01/2019 action was timely or [ ] raise an issue of fact as to _whether the action was timely" (MTGLQ Investors, LP v Wozencrqft, 2019 WL 2291865, 2019 NY Slip Op 04287 [1st Dept 2019] [internal quotations and citations omitted]). "[A ]ctions are time-barred [where] they were commenced more than six years from the date that all of the debt on the mortgages was accelerated" (Deutsche Bank Natl. Trust Co. v Royal Blue Realty Holdings, Inc., 148 AD3d 529, 530, 48 NYS3d 597 (Mem) [1st Dept 2017]). General Obligations Law § 17-101 "provides that an acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract in order to restart the statute of limitations. Under General Obligations Law § 17-105(1 ), a written promise to pay the mortgage debt, if made after the accrual of a right of action to foreclose the mortgage, either with or without consideration makes the time limited for the commencement of the action run from the date of the promise. Finally, under General Obligations Law§ 17-107(2)(b), a partial payment on account of the indebtedness secured by a mortgage, is effective to revive an action to recover such indebtedness in favor of the mortgagee or his assignee or any oth_er party who subsequently succeeds to an interest in the mortgage's enforcement" (Pettito v P(ffath, 85 NY2d 1, 7, 623 NYS2d 520 [1994] [finding that a debtor's promise to pay a certain amount to settle a mortgage foreclosure case did not restart the statute of limitations because it was not an express acknowledgement of the indebtedness]). . Here, there is no dispute that there was a prior foreclosure action filed on December 1, 2009. The initial question for this Court is whether Amir Boktor' s statement of intention filed in bankruptcy court on January 28, 2011 (NYSCEFDoc. No. 69) restarted the statute of limitations. In this document, defendant Boktor checks a box that states he is reaffirming the debt and claim~· the property as exempt (id.). The Court finds that this statement of intention is sufficient to 850251/2017 U.S. BANK TRUST, N.A., AS vs. BOKTOR, AMIR Motion No. 001 . 3 of 6 Page 3 of 6 [*FILED: 4] NEW YORK COUNTY CLERK 11/01/2019 10:33 AM INDEX NO. 850251/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 11/01/2019 ' ' restart the statute of limitations under the General Obligations Law. It would be wholly inequitable for a_ debtor to state his intention to pay a mortgage debt in bankruptcy court (and presumably avoid having the property be sold as part of the bankruptcy proceeding) and then later disavow this claim in order to avoid a subsequent foreclosure proceeding. The .Court observes that Mr. Boktor signed this document under penalty of perjury (id.). While that does not prevent Mr. Boktor from changing his mind, it is simply too convenient to allow him to do so under these circumstances. However, a finding that the statute oflimitations started to:run on the 'date of this promise . to pay (January 28, 2011) does not make the instant action (started on November i,2017) timely. ~ ' . Even assuming that Mr. Boktor' s bankruptcy case tolled the statute of limitations further (see CPLR 204[a]), the fact is that Mr. Boktor's bankruptcy case was discharged on September 14, 2011. Six years from that date is September 14, 2017 and this case was commenced, on ' November 1, 2017. Under Pettito (cited above), the Court finds that the trial payment plan does not render ' ' the instant action timely. According to plaintiff, Mr. Boktor made payments pursuant to a trial period plan. This plan stated it was "the first step toward qualifying for more affordable ' - mortgage payments" (NYSCEF Doc'. No. 56 at I). It also notes that "Upon successful completion oftheTriai'Period Plan, we will send you a Modification Agreement requiring your signature" (id. at 2). Clearly, this agreement was not an acknowledgement of a debt. Rather, Mr. Boktor promised to make (and did make) three payments while plaintiff agreed not to proceed to a foreclosure sale (id. at 4). 1 Therefore; the statute of limitations was not restarted in 2017 and this case is time-barred. 1 There is n'o mention of a Modification Agreement in the record despite the fact that plaintiff admits Mr. Boktor made the three payments. · 850251/2017 . U.S. BANK TRUST, N.A., AS vs. BOKTOR, AMIR Motion No. 001 4 of 6 Page4 of6 [*FILED: 5] NEW YORK COUNTY CLERK 11/01/2019 10:33 AM NYSCEF DOC. NO. 77 INDEX NO. 850251/2017 RECEIVED NYSCEF: 11/01/2019 Summary The Court observes that this result embraces the realities of a trial payment plan. It is merely an agreement to pause a foreclosure case in .exchange for a few payments. It is not an. agreement to pay the loan and, therefore, is not an ackno'Y~edgement <;>fa debt. Otherwise, . . lenders could use this type of agreement to trick people into restarting the statute of limitations ' and then back out before agreeing to an actual modification of the loan. Under those circumstances, there would be no incentive for a borrower to enter the trial payment plan; he or she 'would be restarting the limitations period in exchange for the chance that the case might . ' ,; settle on affordable terms. That is not an equitable bargain. Moreover, tricking borrowers into making a few payments with the promise of a possible permanent modification - which never materializes despite the borrower making the payments -would probably run afoul of CPLR 3408' s requirement that lenders negotiate in good faith. However, the Court recognizes that trial payment plans make good business sense; requiring borrowers (many of whom have not made.a payment irt years) to make a series of payments before entering into a settlement islogical. But that does .not mean it should restart the limitations period. The Court has no idea why plaintiff and its predecessor needed to start three cases to foreclose on this mortgage loan especially where the first two cases were discontinued.pursuant .. to motions made by plaintif.f(see NYSCEF Doc. Nos. 42, 44). 2 Six years is a considerable amount oftime to commence a foreclosure action and somehow plaintiff failed to meet that 2 To the extent that plaintiff claims it revoked the acceleration by discontinuing the previous cases, that claim is denied. A voluntary discontin.uance is not an affirmative act ofrevocation and the purported billing statement sent by plaintiff is from May 2018 (after th.e instant litigation was commenced). · 850251/2017 U.S. BANK TRUST, N.A., AS Motion No. 001 vs. BOKTOR, AMIR 5 of 6 Page 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 11/01/2019 10:33 AM INDEX NO. 850251/2017 NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 11/01/2019 deadline even when including the Court's finding that the latest date the limitations p·eriod restarted was when the bankruptcy case w~s concluded in Sept.ember 2011. Accordingly, it is hereby ORDERED that the motion by defendants Amir Boktor a/k/aAmir F. Boktor and Diana Sahwani Boktor a/k/a Diana Boktor a/k/a Diana Sahwani-Boktor for summary judgment dismissing this action is granted, with costs, upon presentation o,f proper papers therefor; and it is further ORDERED that County Clerk is directed to cancel the Notice of Pendency filed in . connection with the instant premises and the .County Clerk and/or the City Register is directed to cancel the mortgage recorded in the Office of the City Register. on June 5, 2006 (CFRN No. 200600311369). CHECK ONE: .§ X ARLl;.NE P. BLUTH, J.5.C. CASE .DISPOSED GRANTED ·o P. BLUTH D D NONff&N~PAftl.rENE DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN · 850251/2017 U.S. BANK TRUST, N.A., AS vs. BOKTOR, AMIR Motion No. 001 · 6 of 6 GRANTED IN PART SUBMIT ORDER OTHER · FIDUCIARY APPOINTMENT . t REFERENCE Page 6 of6

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