A Sydney Sullivan Report
This is a most interesting case. Statutes of limitations exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it would have been discovered with reasonable efforts. In foreclosure cases there have been controversies stemming at times from the games the servicers play with “trial” payments and modifications.
Many statutes of limitations are actual legislative statutes, while others may come from judicial common law. Source: Cornell University Law School, Legal Information Institute. Both federal and state have various statutes and federal bankruptcy statutes of limitations that may even trump the others.
Here, in CLARK-MOORE, the Supreme Court of the State of New York clarified several controversies found in other circuits by specifying precisely when the SOL begins, “by the commencement of the first action” simply stating:
The Supreme Courts refers to UMLIC VP, LLC v. MELLACE, 19 A.D.3d 684 (2005) where it notes that “the Supreme Court correctly determined that the mere acceptance of a partial payment of the accelerated debt by the previous holder of the subject note was not an affirmative act revoking the acceleration and thereby halting the running of the statute of limitations (see Lavin v. Elmakiss, 302 A.D.2d 638 ).”
Lavin details the difference between unpaid installments and acceleration.
“The six-year statute of limitations in a mortgage foreclosure action begins to run from the due date for each unpaid installment unless the debt has been accelerated; once the debt has been accelerated by a demand or commencement of an action, the entire sum becomes due and the statute of limitations begins to run on the entire mortgage (see Loiacono v Goldberg, 240 A.D.2d 476, 477; see also CPLR 213 ; Saini v Cinelli Enters., 289 A.D.2d 770, 771, lv denied 98 N.Y.2d 602).”
Many courts look at the four or six year period, depending upon the state, as the final statutory time, i.e. as in an “action may be commenced at any time within six years after the person who is entitled to bring the same discovers or should have discovered, the existence of the cause of action.” Basically, it appears this is saying to the litigator, if you knew or should have known from your first blush, there were 4-6 years from the cause to commence an action – thereafter, the attorneys advise us, you are likely too late – SOL.
As Justice Hinrichs pens in Clark-Moore,
“As the action is time-barred, it cannot be commenced again and the controversy therefore has reached an ultimate outcome.”