Statute of Limitations and a Mortgagee in Possession

For a foreclosure commenced in 2010 the Plaintiff elected to call due to the entire amount secured by the mortgage. That action was dismissed in 2012. In 2016, Plaintiff brought an action under New York’s Real Property Actions and Proceedings Law Article 15 (“Action to compel the determination of a claim to real property”) to have the mortgage canceled and discharged of record on the ground that the statute of limitations had expired. The Defendant-mortgagee asserted that Plaintiff had abandoned the property and that Defendant’s being in possession of the property since 2013 pursuant to paragraph nine of the mortgage (“Lender’s Right to Protect Its Rights in the Property”) had tolled the statute of limitations. Under paragraph 9, if the borrower abandoned the property, the mortgagee may “do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and Lender’s rights.”