Loans were given and mortgages taken.  The mortgages were no properly recorded after closing. Some time passed, and the borrowers stopped paying.  An easy solution, no?  In this case, not an easy solution.  All of the claims discussed in this appeal are time barred.

Yarbro v Wells Fargo Bank, N.A.  2016 NY Slip Op 05236  Decided on June 30, 2016
Appellate Division, First Department shows how the passage of time works against the litigant.

“Contrary to plaintiffs’ contention, the breach of contract causes of action accrued at the time of the breach, not on the date of discovery of the breach (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399 [1993]), and the six-year statute of limitations applicable thereto had run before plaintiffs commenced this action. The negligence claims, which allege a failure to properly record certain mortgages, are governed by CPLR 214(4), a three-year statute of limitations (see First Am. Tit. Ins. Co. of New York v Fiserve Fulfillment Servs., Inc., 2008 WL 282019, *2, 2008 US Dist LEXIS 7344, *6 [SD NY 2008]). “[A]ccrual time is measured from the day [the] actionable injury occur[red], even [though] the aggrieved party [was] then ignorant of the wrong or injury'” (Nothnagle Home Sec. Corp. v Bruckner, Tillet, Rossi, Cahill & Assoc., 125 AD3d 1503, 1504 [4th Dept 2015], lv denied 25 NY3d 909 [2015] [quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). The mortgages at issue were recorded in 2007; this action [*2]was not commenced until 2014.

Plaintiffs’ attempt to extend the statute of limitations by equitable tolling is unsupported by any non-conclusory allegation that they were “actively misled” by any of the defendants (see Shared Communications Servs. of ESR, Inc. v Goldman, Sachs & Co., 38 AD3d 325, 325 [1st Dept 2007] [internal quotation marks omitted]). Nor do plaintiffs allege any facts that would support their “continued representation” claim.

The legal malpractice claim, which accrued at the time the mortgages were recorded after closing (Benedict v Estate of Noumair, 289 AD2d 71 [1st Dept 2001]) and is governed by a three-year statute of limitations (CPLR 214[6]), and the unjust enrichment claim, which accrued “upon the occurrence of the alleged wrongful act giving rise to restitution” (Kaufman v Cohen, 307 AD2d 113, 127 [1st Dept 2003]) and is governed by a six-year statute of limitations (CPLR 213[1]); see also Maya NY, LLC v Hagler, 106 AD3d 583, 585 [1st Dept 2013]), are time barred.”