Opinion
2016–03378 Index No. 505979/15
02-06-2019
Jennifer HALFON, Respondent, v. U.S. BANK, NATIONAL ASSOCIATION, etc., et al., Appellants.
Houser & Allison, APC, New York, N.Y. (Danielle P. Light and Michael Eskenazi of counsel), for appellants. Arnold Joel Ludwig, Brooklyn, NY, for respondent.
Houser & Allison, APC, New York, N.Y. (Danielle P. Light and Michael Eskenazi of counsel), for appellants.
Arnold Joel Ludwig, Brooklyn, NY, for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the complaint is denied.
In August 2006, the plaintiff obtained a loan from GFI Mortgage Bankers, Inc. (hereinafter GFI), which was secured by a mortgage on real property located in Brooklyn. In October 2008, nonparty Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint), commenced an action to foreclose the mortgage (hereinafter the 2008 foreclosure action). In November 2013, the Supreme Court denied Greenpoint's motion for summary judgment on the complaint and for an order of reference and granted the plaintiff's cross motion to dismiss the 2008 foreclosure action.
In May 2015, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage. The plaintiff moved for summary judgment on the complaint and the defendants opposed the motion. In an order dated March 15, 2016, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint and directed the Kings County Clerk to cancel and discharge the mortgage. The defendants appeal. Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge the mortgage was commenced (see Lubonty v. U.S. Bank N.A. , 159 A.D.3d 962, 74 N.Y.S.3d 279 ). An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ; Lubonty v. U.S. Bank N.A. , 159 A.D.3d at 962, 74 N.Y.S.3d 279 ; NMNT Realty Corp. v. Knoxville 2012 Trust , 151 A.D.3d 1068, 1069, 58 N.Y.S.3d 118 ). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" ( Lubonty v. U.S. Bank N.A. , 159 A.D.3d at 963, 74 N.Y.S.3d 279 [internal quotation marks omitted]; see Kashipour v. Wilmington Sav. Fund Socy., FSB , 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ).
Here, the plaintiff met her prima facie burden of demonstrating her entitlement to judgment as a matter of law on the complaint by establishing that the 2008 foreclosure action accelerated the mortgage debt and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see U.S. Bank N.A. v. Martin , 144 A.D.3d 891, 891, 41 N.Y.S.3d 550 ; Kashipour v. Wilmington Sav. Fund Socy., FSB , 144 A.D.3d at 987 ; JBR Constr. Corp. v. Staples , 71 A.D.3d 952, 953, 897 N.Y.S.2d 223 ). Thus, the burden shifted to the defendants to raise a triable issue of fact.
The defendants raised a triable issue of fact as to whether Greenpoint had standing to commence the 2008 foreclosure action and, therefore, whether the service of the 2008 complaint was effective to constitute a valid exercise of the option to accelerate the debt (see U.S. Bank Trust, N.A. v. Williams , 168 A.D.3d 1122, 92 N.Y.S.3d 722, 2019 N.Y. Slip Op. 00634 [2d Dept. 2019] ; DLJ Mtge. Capital, Inc. v. Hirsh , 161 A.D.3d 944, 945, 78 N.Y.S.3d 160 ; U.S. Bank N.A. v. Gordon , 158 A.D.3d 832, 836, 72 N.Y.S.3d 156 ; Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d 980, 983, 943 N.Y.S.2d 540 ). The affidavits submitted by the defendants were sufficient to raise a triable issue of fact as to whether the note was physically delivered to the defendant U.S. Bank, National Association (hereinafter U.S. Bank), on September 27, 2006, two years before U.S. Bank's assignor, Greenpoint, commenced the 2008 foreclosure action (see CPLR 4518[a] ; Matter of Leon RR , 48 N.Y.2d 117, 122, 421 N.Y.S.2d 863, 397 N.E.2d 374 ; Bank of Am., N.A. v. Brannon , 156 A.D.3d 1, 8, 63 N.Y.S.3d 352 ; PennyMac Corp. v. Chavez , 144 A.D.3d 1006, 1007, 42 N.Y.S.3d 239 ; Wells Fargo Bank, N.A. v. Gallagher , 137 A.D.3d 898, 900, 28 N.Y.S.3d 84 ; see also UCC 3–204 [2] ; JPMorgan Chase Bank, N.A. v. Weinberger , 142 A.D.3d 643, 645, 37 N.Y.S.3d 286 ; Deutsche Bank Natl. Trust Co. v. Monica , 131 A.D.3d 737, 739, 15 N.Y.S.3d 863 ; Deutsche Bank Trust Co. Ams. v. Vitellas , 131 A.D.3d 52, 55–56, 60–61, 13 N.Y.S.3d 163 ).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the complaint.
In light of our determination, we need not address the defendants' remaining contentions.
DILLON, J.P., ROMAN, MALTESE and CHRISTOPHER, JJ., concur.