You Can’t Always Waive Bye-Bye to Statutes of Limitation

By: Jonathan Freiberger

As discussed previously in this BLOG, in general, statutes of limitation govern the time in which a cause of action must be interposed after accrual. Article 2 of the CPLR addresses statute of limitations issues in New York. Section 201 of the CPLR provides that “[a]n action … must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement. No court shall extend the time limited by law for the commencement of an action.” Prior to the enactment of the statutes of limitation, “there was no fixed time for the bringing of an action [and p]ersonal actions were merely confined to the joint lifetimes of the parties.” Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 429 (1969). “The Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of giving repose to human affairs.”  Flanagan, 24 N.Y.2d at 429 (citation omitted).

It has been stated that “the primary purpose of Statutes of Limitation is to relieve defendants of the necessity of investigating and preparing a defense where the action is commenced against them after the expiration of the statutory period because the law presumes that by that time evidence has been lost, memories have faded and witnesses have disappeared.”  Connell v. Hayden, 83 A.D.2d 30, 41 (2^nd Dep’t 1981).  The Connell Court further stated that:

These policies [upon which Statutes of Limitation are based] are briefly reviewed in Note: Federal Rule of Civil Procedure 15(c): Relation Back of Amendments (57 Minnesota L.Rev. 83, 84–85), as follows:

“First, the primary purpose of the statute is to compel the exercise of a right of action within a reasonable time so that a defendant will have a fair opportunity to prepare an adequate defense. Otherwise, the belated institution of an action might prejudice defendant’s preparation of evidence. Such prejudice would commonly result, for example, where critical evidence is lost or where the facts have been obscured by the passage of time or faulty memories. The death or removal from the jurisdiction of witnesses is a further problem. Second, the statute relieves the defendant from the otherwise endless psychological fear of litigation based upon events in the distant past. Third, it frees the judicial system from stale claims which make resolution of fact issues both difficult and arbitrary. Fourth, the courts are relieved of the additional caseload which would result if old causes of action were permitted, thus promoting efficient judicial administration. Finally, a limitations period avoids the disruptive effect of unsettled claims upon commercial intercourse. For example, creditors may more accurately determine a person’s financial status if his former outstanding debts have been extinguished by the running of the statute of limitations.”

Connell, 83 A.D.2d at 40 – 41.

“Although the Statute of Limitations is generally viewed as a personal defense to afford protection to defendants against defending stale claims, it also expresses a societal interest or public policy of giving repose to human affairs.” John J. Kassner & Co., Inc. v. City of New York, 46 N.Y.2d 544, 550 (1979) (citations and internal quotation marks omitted). While parties may agree to adjust a limitations period to a “shorter, but reasonable period to commence an action,” the power to “extend the Statute of Limitations is … more restricted.” Id. at 550-51. “The public policy represented by the statute of limitations becomes pertinent where the contract not to plead the statute is in form or effect a contract to extend the period as provided by statute Or [sic] to postpone the time from which the period of limitation is to be computed.” Id. at 551 (citation omitted). The validity of agreements to extend a limitations period “depends initially on the time at which it was made and where “the agreement to “waive” or extend the Statute of Limitations is made at the inception of liability it is unenforceable because a party cannot in advance, make a valid promise that a statute founded in public policy shall be inoperative.” Id. (citations and internal quotation marks omitted).

An action to foreclose a mortgage is governed by a six-year statute of limitations. CPLR 213(4). See also Fed. Nat. Mort. Assoc. v. Schmitt, 172 A.D.3d 1324, 1325 (2d Dept. 2019); FV-1, Inc. v. Palaguachi, 234 A.D.3d 818, 820 (2d Dept. 2025). When a mortgage is payable in installments, “separate causes of action accrue for each installment that is not paid and the statute of limitations begins to run on the date each installment becomes due.” HSBC Bank USA, N.A. v. Gold, 171 A.D.3d 1029, 1030 (2d Dept. 2019); Fv-1, 234 A.D.3d at 820. Most mortgages, however, provide that a mortgagee may accelerate the entire debt in the event of, inter alia, a payment default by a mortgagor. Thus, “the terms of the mortgage may contain an acceleration clause that gives the lender the option to demand due the entire balance of principal and interest upon the occurrence of certain events delineated in the mortgage.” Bank of New York Mellon v. Dieudonne, 171 A.D.3d 34, 37 (2d Dept. 2019) (citations and internal quotation marks omitted). Once the mortgagee’s election to accelerate is properly made, “the borrower’s right and obligation to make monthly installments ceased and all sums become immediately due and payable.” EMC Mortgage Corp. v. Patella, 279 A.D.2d 604 (2d Dept. 2001) (citation, internal quotation marks and brackets omitted). The statute of limitations begins to run anew on the entire debt upon acceleration. HSBC, 171 A.D.3d at 1030 (citations omitted); Deutsche Bank Nat. Trust Co. v. Cahn, 2026 WL 1316040 (2d Dept. 2026); see also Fv-1, 234 A.D.3d at 820.

Against this backdrop, we discuss Rouge v. U.S. Bank Trust N. A.,[1] a mortgage foreclosure action decided by the Appellate Division, First Department, on June 16, 2026. The lender in Rogue commenced a foreclosure action in 2011 after the borrower’s payment default. A default judgment was issued against the borrower after she failed to appear in the action. The action was dismissed in 2020 for lack of personal jurisdiction after a traverse hearing.

In 2022, the borrower commenced an action under RPAPL 1501(4) to discharge the subject mortgage because any action on the note would be time-barred. RPAPL 1501(4), which permits a borrower to discharge a mortgage of record upon the expiration of the applicable limitations period, has been the subject of prior BLOG articles. See, e.g., “Second Department Cancels and Discharges of Record a Mortgage Pursuant to RPAPL 1501(4)” and “Get Rid of a Stale Mortgage by Bringing an Action Under RPAPL 1501(4)”. The Borrower’s motion for summary judgment was granted by the motion court and the lender appealed.

Among other things, on its appeal the lender argued that the motion court should have denied the borrower’s motion for summary judgment because she waived defenses in the operative loan document. Thus, as noted in the record on appeal, the agreement provided that the borrower “has no right of set-off or counterclaim, or any defense to the obligations of the Consolidated Note or the Consolidated Mortgage.” (Citation to the record and brackets omitted.) In rejecting this argument, and relying on John J. Lassner & Co., supra, the Court stated that “[c]ontrary to [the lender]'s contention, [the borrower] did not waive the ability to assert the statute of limitations under RPAPL 1501(4). The waiver of the defense in the consolidation extension and modification agreement was made at the inception of liability and is therefore invalid.”

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Some of the facts set forth herein were obtained from the appellate record available on the Court’s NYSCEF website.