Opinion
401 CA 20-01249
10-01-2021
Ronald BRADLEY, Also Known as Ron Bradley, Plaintiff-Respondent, v. NEW PENN FINANCIAL, LLC, Doing Business as Shellpoint Mortgage Servicing, Defendant-Appellant.
AKERMAN LLP, NEW YORK CITY (ERIC M. LEVINE OF COUNSEL), FOR DEFENDANT-APPELLANT. WESTERN NEW YORK LAW CENTER, BUFFALO (KEISHA A. WILLIAMS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
AKERMAN LLP, NEW YORK CITY (ERIC M. LEVINE OF COUNSEL), FOR DEFENDANT-APPELLANT.
WESTERN NEW YORK LAW CENTER, BUFFALO (KEISHA A. WILLIAMS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In 1999, plaintiff borrowed a sum of money from defendant's predecessor in interest and executed a note secured by a mortgage on property in the Town of Lewiston, Niagara County. In December 2009, defendant's predecessor in interest commenced a foreclosure action. In December 2017, defendant's predecessor in interest moved to voluntarily discontinue the foreclosure action. Plaintiff thereafter commenced this action, seeking cancellation and discharge of the mortgage on the ground that any action to enforce the note and foreclose on the mortgage would be time-barred. Defendant counterclaimed for unjust enrichment, based on taxes and insurance premiums it paid on the property. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment granting an order of quiet title and dismissing the counterclaim. Supreme Court denied defendant's motion and granted plaintiff's cross motion. We affirm.
A mortgage foreclosure action is subject to a six-year statute of limitations (see CPLR 213 [4] ). Once the debt has been accelerated by a demand, the statute of limitations begins to run on the entire debt (see Federal Natl. Mtge. Assn. v. Tortora , 188 A.D.3d 70, 74, 131 N.Y.S.3d 763 [4th Dept. 2020] ). Thus, the statute of limitations expired before defendant's predecessor in interest voluntarily discontinued the foreclosure action.
Here, contrary to defendant's contention, the statute of limitations was not renewed upon discontinuation. A lender seeking to revoke acceleration "must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action" ( U.S. Bank N.A. v. Balderston , 163 A.D.3d 1482, 1484, 83 N.Y.S.3d 382 [4th Dept. 2018] [internal quotation marks omitted]; see U.S. Bank N.A. v. Brown , 186 A.D.3d 1038, 1040, 130 N.Y.S.3d 146 [4th Dept. 2020] ; NMNT Realty Corp. v. Knoxville 2012 Trust , 151 A.D.3d 1068, 1069-1070, 58 N.Y.S.3d 118 [2d Dept. 2017] ). Although the voluntary discontinuance constituted an affirmative act of revocation as a matter of law (see Freedom Mtge. Corp. v. Engel , 37 N.Y.3d 1, 32, 146 N.Y.S.3d 542, 169 N.E.3d 912 [2021], rearg denied 37 N.Y.3d 926, 146 N.Y.S.3d 865, 169 N.E.3d 1229 [2021] ), it occurred two years after the expiration of the statute of limitations.
Contrary to defendant's further contention, the statute of limitations was not renewed by payments plaintiff made as part of a conditional offer to modify the mortgage. The statute of limitations is renewed by partial payments made "under circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder" ( Business Loan Ctr., Inc. v. Wagner , 31 A.D.3d 1122, 1123, 818 N.Y.S.2d 406 [4th Dept. 2006] [internal quotation marks omitted]; see General Obligations Law § 17-107 ). Here, defendant failed to establish that the trial payments here satisfied that standard inasmuch as "any promise to pay the remainder of the debt that could be inferred in such circumstances would merely be a promise conditioned upon the parties reaching a mutually satisfactory modification agreement" ( Nationstar Mtge., LLC v. Dorsin , 180 A.D.3d 1054, 1057, 119 N.Y.S.3d 435 [2d Dept. 2020] ; see Federal Natl. Mtge. Assn. v. Jeanty , 188 A.D.3d 827, 829-830, 136 N.Y.S.3d 140 [2d Dept. 2020] ).
To the extent that Wells Fargo Bank N.A. v. Grover, 165 A.D.3d 1541, 86 N.Y.S.3d 299 (3d Dept. 2018) held to the contrary, we disagree and decline to follow that decision. We note in any event that the borrower in Grover entered into a modification agreement with the lender pursuant to which he was to make three payments during a trial period. Here, in contrast, plaintiff never executed the proposed trial modification agreements offered to him by defendant.
Finally, we conclude that the court did not err in dismissing the counterclaim. It is well settled that "[t]he existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract or unjust enrichment for occurrences or transactions arising out of the same matter" ( Micro-Link, LLC v. Town of Amherst , 155 A.D.3d 1638, 1642, 65 N.Y.S.3d 399 [4th Dept. 2017] [internal quotation marks omitted]; see Town of Mexico v. County of Oswego , 175 A.D.3d 876, 877, 107 N.Y.S.3d 221 [4th Dept. 2019] ). Because the disputed payments of taxes and insurance "fall entirely within the [mortgage] contract, there is no valid claim for unjust enrichment" ( Goldman v. Metropolitan Life Ins. Co. , 5 N.Y.3d 561, 572, 807 N.Y.S.2d 583, 841 N.E.2d 742 [2005] ). Contrary to defendant's contention, the counterclaim did not state a cause of action for waste in addition to unjust enrichment. Moreover, defendant never sought to amend the counterclaim to add a cause of action for waste, and instead sought to raise that new cause of action for the first time in opposition to the cross motion (see generally Omar v. Moore , 171 A.D.3d 1533, 1534, 99 N.Y.S.3d 549 [4th Dept. 2019] ).