In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2023 No. 23-546-cv

WINDWARD BORA LLC, Plaintiff-Counter-Defendant-Appellee,

v.

JOHN SOTOMAYOR, ALEXANDRIA LOAIZA, Defendants-Counter-Claimants-Appellants,

and AMERICAN EXPRESS CENTURION BANK, MIDLAND FUNDING LLC, DBA IN NEW YORK AS MIDLAND FUNDING OF DELAWARE, LLC, CAPITAL ONE BANK (USA), N.A., JOHN DOE, JANE DOE, Defendants.

On Appeal from the United States District Court for the Southern District of New York

ARGUED: JANUARY 9, 2024 DECIDED: AUGUST 28, 2024 Before: STEVEN J. MENASHI, SARAH A. L. MERRIAM, Circuit Judges, and STEPHEN A. VADEN, Judge. *

This diversity action is the third attempt to foreclose on the Appellants’ property. Partners for Payment Relief DE II, LLC (“Partners for Payment”), the predecessor-in-interest to Plaintiff Windward Bora LLC (“Windward Bora”), brought an action in 2013 that was voluntarily discontinued. Windward Bora then brought an action in 2019, but the District Court dismissed it for failure to satisfy statutory notice requirements. Windward Bora brought this third action outside the statute of limitations period but maintains that the action is permitted under a savings provision in New York state law, which provides that, if a foreclosure action is timely commenced and terminated for any reason other than a judgment on the merits or other enumerated exceptions, the “original plaintiff” may bring the action again within six months even if the statute of limitations has expired. N.Y. C.P.L.R. § 205-a(a).

Summary judgment was properly granted to Windward Bora because Windward Bora is the “original plaintiff” for purposes of the savings provision — that is, the same plaintiff as in the timely 2019 Action. Windward Bora may therefore relate the Present Action back to its timely commencement of the 2019 Action. The Appellants forfeited their second argument that the 2019 Action cannot trigger the savings statute because it was dismissed for violation of a “court rule.”

Accordingly, we AFFIRM.

* Judge Stephen Alexander Vaden of the United States Court of International Trade, sitting by designation.

2 STEVEN AMSHEN, Petroff Amshen LLP, Brooklyn, N.Y. (James Tierney on the brief), for Defendants-Counter- Claimants-Appellants.

RAFI HASBANI, Hasbani & Light, P.C., New York, N.Y., for Plaintiff-Counter-Defendant-Appellee.

VADEN, Judge:

John Sotomayor and Alexandria Loaiza (“Appellants”) appeal from the judgment of the U.S. District Court for the Southern District of New York (Seibel, J.) granting Plaintiff Windward Bora LLC’s (“Windward Bora”) Motion for Summary Judgment. On appeal, they maintain that Windward Bora’s current foreclosure action (the “Present Action”) is barred by the statute of limitations and that the Present Action cannot use the savings provision under New York Civil Practice Law and Rules § 205-a to relate back to its timely prior action (the “2019 Action”).

This is the third attempt to foreclose on Appellants’ property. Windward Bora’s predecessor-in-interest, Partners for Payment Relief DE II, LLC (“Partners for Payment”), brought the first foreclosure action in 2013 (the “2013 Action”), which it voluntarily discontinued in 2018. See N.Y. C.P.L.R. § 3217. Windward Bora then acquired the subject note and mortgage and brought another foreclosure action — the 2019 Action — which the District Court dismissed after an oral Motion for Summary Judgment based on Windward Bora’s failure to provide