No Relation-Back Without Actual Notice: Misindexed Lis Pendens and Recorded Mortgage Do Not Bind Subsequent Owners in Foreclosure

Commentary on U.S. Bank N.A. v. 1702 Dean, LLC (2025 NY Slip Op 04501, App. Div. 2d Dep’t)

Introduction

This Second Department decision delivers a precise and consequential statement on the limits of the relation-back doctrine when a lender seeks to add a subsequent property owner to a foreclosure action after the statute of limitations has expired. The court holds that:

• Actual notice within the limitations period is required to relate claims back against a newly added defendant; constructive notice will not do.
• A misindexed notice of pendency (lis pendens) provides no constructive notice at all.
• The recording of a mortgage gives constructive notice of the mortgage, not actual notice of a foreclosure action, and therefore cannot satisfy relation-back’s notice requirement.
• A subsequent grantee is not “united in interest” with the original mortgagor for relation-back purposes, especially where the mortgagor defaulted in the action.

The case arises from a 2010 foreclosure started with a filing error that misidentified the property’s block number, followed by a series of misindexed notices of pendency. The property was later transferred to 1702 Dean, LLC (the “LLC”), and the lender sought to add the LLC to the case in 2019—outside the six-year limitations period. The Supreme Court denied the LLC’s statute-of-limitations cross-motion; the Appellate Division reversed, dismissing the action as to the LLC.

Factual Background and Procedural Timeline

• September 19, 2006: Borrower (Ghislaine Bertrand) executes a $598,160 note, secured by a mortgage on Brooklyn property (correct tax map: Block 1348, Lot 28).
• August 29, 2007: Borrower dies. In November 2007, heirs convey the premises to Gerald J. Bertrand.
• April 28, 2010: U.S. Bank files a foreclosure action against Gerald and others, accelerating the debt. Both the complaint and the contemporaneous notice of pendency misidentify the property as Block 1349, Lot 28.
• July 25, 2013: Default judgment and order of reference granted unopposed.
• 2013–2016: Chain of title transfers:
  • July 25, 2013: Gerald conveys to 1702 Dean, LLC.
  • September 13, 2013: Gerald conveys to AG2 Equities, Inc.
  • February 13, 2015: AG2 conveys to 1702 Dean, LLC (recorded March 11, 2015).
• 2013–2016: The bank files successive notices of pendency (October 4, 2013; August 3, 2016), each again misindexing the block as 1349 instead of 1348.
• February 7, 2017: Judgment of foreclosure and sale is issued; April 7, 2017: a fourth lis pendens is filed with the correct block/lot; November 3, 2017: the bank withdraws the judgment.
• 2018–2019: LLC intervenes and is added as a necessary party; on February 28, 2019, the bank files a supplemental summons and amended complaint adding the LLC and files a correctly indexed amended notice of pendency.
• 2019–2022: Bank moves for summary judgment; LLC cross-moves for summary judgment dismissing the amended complaint as time-barred. Supreme Court denies both. LLC appeals.

Summary of the Judgment

The Appellate Division reverses the Supreme Court’s order and grants the LLC’s cross-motion for summary judgment dismissing the amended complaint as against it, with costs. The court holds that:

• The six-year statute of limitations (CPLR 213[4]) began in April 2010 upon commencement/acceleration.
• The 2019 amended complaint against the LLC was untimely on its face.
• The bank failed to carry its burden to invoke the relation-back doctrine (CPLR 203) because:
  • No unity of interest exists between Gerald (the defaulting mortgagor) and the LLC (a later grantee).
  • The failure to name the LLC in 2010 was not a “mistake” as to identity (the LLC had no interest then).
  • Crucially, the LLC did not have actual notice of the action within the limitations period:
    • The lis pendens filed before the LLC’s 2015 acquisition were misindexed to the wrong block and gave no constructive notice (CPLR 6501).
    • The recorded mortgage gave only constructive notice of the mortgage, not actual notice of the foreclosure action.

Detailed Analysis

1) Precedents Cited and Their Influence

• Buran v Coupal, 87 NY2d 173: The Court of Appeals articulated the three-prong relation-back test and emphasized notice as the “linchpin.” Here, the Second Department applies Buran and stresses the need for actual notice to the later-added defendant within the limitations period.
• Mitzmacher v Bay Country Owners, 211 AD3d 1025; Patrick v Comprehensive Med. Supply, LLC, 225 AD3d 777; Marcotrigiano v Dental Specialty Assoc., P.C., 209 AD3d 850: These Second Department cases frame the burden-shifting and the three-prong relation-back analysis. The LLC met its prima facie limitations defense, shifting the burden to the bank to satisfy relation-back; the bank failed on prongs two and three.
• Mileski v MSC Indus. Direct Co., Inc., 138 AD3d 797; Mondello v New York Blood Ctr., 80 NY2d 219: Define “unity of interest” as parties who “stand or fall together.” Applied here, the original mortgagor (who defaulted and later had no interest) and the subsequent owner do not stand or fall together.
• Matter of Emmett v Town of Edmeston, 3 AD3d 816, affd 2 NY3d 817; Bisono v Mist Enters., Inc., 231 AD3d 134: A default by the original defendant undermines claims of identical interests, reinforcing the finding of no unity of interest between Gerald and the LLC.
• Petruzzi v Purow, 180 AD3d 1083: Restates that notice to the would-be defendant within the limitations period is the linchpin of relation-back; the court quotes and relies on this principle.
• Bank of N.Y. Mellon v Norton, 219 AD3d 680: Recognizes that filing a foreclosure action accelerates the debt, starting the six-year statute of limitations under CPLR 213(4). That rule fixes April 2010 as the accrual date.
• Sharestates Invs., LLC v Hercules, 178 AD3d 1112; JPMorgan Chase Bank, N.A. v Mule, 230 AD3d 1234: Affirm that a properly filed lis pendens gives constructive notice under CPLR 6501. The court contrasts this with the bank’s misindexed filings, which gave no constructive notice at all.
• Del Pozo v Impressive Homes, Inc., 95 AD3d 1272: A lis pendens misindexed to the wrong property does not impart constructive notice. Determinative here, because all pre-2016 notices were misindexed to the wrong block.
• 436 Franklin Realty, LLC v U.S. Bank N.A., 188 AD3d 960; Fairmont Funding v Stefansky, 301 AD2d 562: Recording a mortgage imparts constructive notice of the mortgage, not of subsequent litigation. The court uses this to hold that recording cannot satisfy relation-back’s actual notice requirement of the action itself.
• Gateway State Bank v Puma, 229 AD2d 373: Cited for the proposition that actual notice is required for relation-back; constructive notice is insufficient.

2) The Court’s Legal Reasoning

The court proceeds in two principal steps: limitations and relation-back.

• Limitations:
  • Under CPLR 213(4), a foreclosure action must be commenced within six years of accrual.
  • Accrual occurred upon the April 2010 commencement, which accelerated the debt (consistent with Bank of N.Y. Mellon v Norton and Freedom Mtge. Corp. v Engel’s general framework on acceleration and revocation, though Engel is not cited here).
  • Because the amended complaint adding the LLC was filed on February 28, 2019—nearly nine years later—it is untimely unless the claim relates back to 2010 under CPLR 203.
• Relation-Back (CPLR 203):
  • Same transaction or occurrence: Conceded; the foreclosure claim against the LLC arises from the same loan and default.
  • Unity of interest between original defendant (Gerald) and new defendant (LLC): Rejected. Gerald had conveyed away his interest; any foreclosure judgment would affect the LLC but not Gerald. Moreover, Gerald’s default undermines any claim of identical interests. This aligns with Mileski/Mondello and Emmett/Bisono.
  • Mistake as to identity and notice to the new party: Rejected. Failure to name the LLC in 2010 was not a mistake about identity because the LLC had no interest at the time. Critically, the court requires and finds no actual notice to the LLC of the action within the six-year period:
    • Misindexed lis pendens (wrong block number) gave no constructive notice whatsoever (Del Pozo).
    • Even if the mortgage was recorded earlier, that imparted only constructive notice of the mortgage, not actual notice of a foreclosure lawsuit (436 Franklin; Fairmont Funding). Constructive notice is insufficient; the court emphasizes actual notice (Buran; Gateway State Bank v Puma).

With no unity of interest and no actual notice—and with the “mistake” prong unavailable—the bank could not benefit from relation-back. The action against the LLC is therefore time-barred.

3) Practical Impact and Forward-Looking Significance

• For lenders and servicers:
  • Exactitude in property identification is critical. A single-digit error in block/lot rendered multiple lis pendens ineffective, undermining constructive notice and contributing to a limitations bar.
  • Relation-back will not rescue a lender that fails to timely add subsequent grantees absent proof those grantees had actual notice of the action within the limitations period.
  • Recorded mortgages do not put subsequent owners on actual notice of foreclosure litigation; this cannot be used to bootstrap relation-back.
  • Monitor title changes during the foreclosure and promptly move to join subsequent owners; do not assume lis pendens filings will suffice, and double-check indexing.
• For purchasers and title insurers:
  • Purchasers who take title without actual notice of a pending, timely foreclosure—and where lis pendens are misindexed—are better positioned to defeat late attempts to add them under relation-back.
  • Title companies should continue to run litigation and index searches; however, this case demonstrates that a misindexed lis pendens may not surface in standard searches and does not bind the purchaser.
• For litigators generally:
  • The Second Department’s insistence on actual notice for relation-back, and its refusal to treat constructive notice as sufficient, tightens the doctrine’s application to later-added defendants.
  • “Unity of interest” is narrowly construed in the foreclosure context where the original borrower has conveyed away title or defaulted in the action.

Complex Concepts Simplified

• Statute of limitations (CPLR 213[4]): A foreclosure action must be brought within six years of accrual. In mortgage foreclosure, accrual typically occurs when the lender accelerates the debt; commencing a foreclosure suit is itself an act of acceleration.
• Relation-back doctrine (CPLR 203): Allows an amended pleading in an existing case to avoid a time bar when adding a new party if three conditions are met:
  1. Same transaction or occurrence as the original pleading.
  2. New and original defendants are “united in interest” (they stand or fall together on the same liability).
  3. Within the limitations period, the new party knew or should have known that, but for the plaintiff’s mistake as to identity, it would have been sued—coupled, in this decision, with the requirement that the new party had actual notice of the action.
• Actual vs. constructive notice:
  • Actual notice: The person truly knows about the lawsuit (e.g., by service, direct communication, or other proof showing knowledge).
  • Constructive notice: The law treats a person as if they know, based on recorded documents or filings (e.g., a properly indexed lis pendens gives constructive notice of the action; a recorded mortgage gives constructive notice of the lien).
  • This decision requires actual notice to satisfy relation-back’s notice prong; constructive notice does not suffice.
• Notice of pendency (lis pendens) (CPLR 6501): A filing that alerts the world that a lawsuit may affect title to specific real property. It provides constructive notice only if properly indexed to the correct property description. If misindexed (wrong block/lot), it provides no constructive notice.
• Unity of interest: Exists when parties’ interests are so identical that a judgment against one necessarily affects the other in the same way. A subsequent grantee who now owns the property is not united in interest with a former owner who no longer holds title—especially if that former owner defaulted in the litigation.
• Mistake as to identity: For relation-back, the plaintiff must have been mistaken about the proper defendant’s identity at the time of the original filing; the doctrine does not cover the later emergence of a new party who had no relevant interest when the action began.

Notable Nuances and Open Questions

• The court did not need to decide whether a properly indexed lis pendens filed within the limitations period could ever satisfy the “actual notice” requirement for relation-back—its analysis suggests that “actual notice” means more than constructive notice from public filings. The opinion’s emphasis on “actual notice” indicates that even a properly indexed lis pendens might not suffice for relation-back, though that precise question remains open in this opinion.
• Acceleration and revocation: While not at issue, lenders should be mindful of acceleration and any attempted de-acceleration under Freedom Mortgage Corp. v Engel. Here, commencement in 2010 accelerated the debt, and nothing in the record showed a timely revocation or tolling.

Practice Pointers

• For lenders:
  • Verify block and lot information meticulously before filing. Incorporate redundant checks (e.g., pre-filing title abstract cross-checks, GIS verification).
  • File lis pendens promptly and confirm indexing with the county clerk. Calendar CPLR 6513 expirations; renew timely.
  • Continuously monitor title for post-commencement transfers; promptly move to add necessary grantees and ensure service, aiming for actual notice within the limitations period.
  • Do not rely on the recorded mortgage or lis pendens alone to establish relation-back notice; build a record of actual knowledge if relation-back may be needed.
• For purchasers:
  • Despite robust searching, misindexed lis pendens may not appear. Title insurance and seller indemnities are essential risk mitigants.
  • If sued late in an old foreclosure, evaluate a statute-of-limitations defense and challenge relation-back, especially where you lacked actual notice.

Conclusion

U.S. Bank N.A. v. 1702 Dean, LLC sharpens several critical points in New York foreclosure practice and relation-back doctrine:

• Adding a subsequent owner after the statute of limitations has run requires proof that the new defendant had actual notice of the action within the limitations period.
• Constructive notice derived from a recorded mortgage does not meet that requirement, and a misindexed lis pendens provides no notice at all.
• Subsequent grantees are generally not “united in interest” with defaulting original mortgagors.

The decision underscores the unforgiving nature of the statute of limitations in foreclosure and the precision demanded in notice practice. For lenders, it is a cautionary tale about clerical accuracy and proactive party-joinder strategy. For purchasers and title stakeholders, it affirms meaningful protection against stale foreclosure claims where actual notice was absent. In the broader legal landscape, the case reaffirms the Second Department’s rigorous application of relation-back and fortifies the centrality of actual notice in joining defendants after the limitations clock has run.