Summary
In U.S. Bank N.A. v Leone, 175 A.D.3d 1452 (2d Dept 2019), the Second Department held that contrary to the mortgagee's contention, its submission of an order discontinuing the prior action upon its own motion, in itself, was insufficient to establish, prima facie, that it revoked its election to accelerate the mortgage debt.
Summary of this case from Deutsche Bank Nat'l Tr. Co. v. WeiningerOpinion
2018–02108 Index No. 711131/16
09-18-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Elissia LEONE, Respondent, et al., Defendants.
Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Kerren B. Zinner of counsel), for appellant. Janet E. Sabel, New York, N.Y. (Oda Friedheim of counsel), for respondent.
Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Kerren B. Zinner of counsel), for appellant.
Janet E. Sabel, New York, N.Y. (Oda Friedheim of counsel), for respondent.
RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
In August 2006, Elissia Leone (hereinafter the defendant) borrowed the sum of $528,000 from Mortgage Lenders Network USA, Inc. The loan was memorialized by a note and secured by a mortgage encumbering real property in Queens. In 2009, after the defendant defaulted on her payment obligations under the note and mortgage, the plaintiff commenced an action to foreclose the mortgage (hereinafter the 2009 action). However, in November 2014, the plaintiff moved to discontinue the 2009 action and to cancel the notice of pendency filed with respect thereto. In an order dated October 5, 2015, the Supreme Court granted the plaintiff's motion and discontinued the 2009 action.
On September 16, 2016, the plaintiff commenced this action against the defendant, among others, to foreclose the same mortgage. The defendant interposed an amended answer asserting various affirmative defenses, including the statute of limitations. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and to strike her answer. In an order entered December 11, 2017, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run, on the date each installment becomes due (see Nationstar Mtge., LLC v. Weisblum , 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 ; Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ; Wells Fargo Bank, N.A. v. Cohen , 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ; Loiacono v. Goldberg , 240 A.D.2d 476, 477, 658 N.Y.S.2d 138 ). However, "even 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" ( EMC Mtge. Corp. v. Patella , 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ; see Kashipour v. Wilmington Sav. Fund Socy., FSB , 144 A.D.3d 985, 986, 41 N.Y.S.3d 738 ; Nationstar Mtge., LLC v. Weisblum , 143 A.D.3d at 867, 39 N.Y.S.3d 491 ; Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d at 982, 943 N.Y.S.2d 540 ). "A lender may revoke its election to accelerate the mortgage, but it 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" ( HSBC Bank USA, N.A. v. Gold , 171 A.D.3d 1029, 1030, 98 N.Y.S.3d 293 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v. Adrian , 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 ; EMC Mtge. Corp. v. Patella , 279 A.D.2d at 606, 720 N.Y.S.2d 161 ). Here, the plaintiff does not dispute that it accelerated the debt by commencing the 2009 action, and that absent a revocation of its election to accelerate, the instant action, commenced on September 16, 2016, would be time-barred. Contrary to the plaintiff's contention, its submission of the order dated October 5, 2015, discontinuing the 2009 action upon its motion, in itself, was insufficient to establish, prima facie, that it revoked its election to accelerate the mortgage debt (see U.S. Bank Trust, N.A. v. Aorta , 167 A.D.3d 807, 89 N.Y.S.3d 717 ; Freedom Mtge. Corp. v. Engel , 163 A.D.3d 631, 633, 81 N.Y.S.3d 156, lv granted in part 33 N.Y.3d 1039, 103 N.Y.S.3d 12, 126 N.E.3d 1052 ). While the plaintiff submitted the order granting its motion, inter alia, to discontinue and discontinuing the 2009 action, it did not submit the underlying motion papers, and nothing in the order itself served to destroy the effect of the plaintiff's prior election to accelerate the maturity of the debt (see U.S. Bank Trust, N.A. v. Aorta , 167 A.D.3d at 809, 89 N.Y.S.3d 717 ). The plaintiff's contention that it affirmatively revoked the election to accelerate the mortgage debt by serving the defendant with 90–day notices pursuant to RPAPL 1304 is also without merit (see Milone v. U.S. Bank N.A. , 164 A.D.3d 145, 154, 83 N.Y.S.3d 524 ). Since the plaintiff failed to satisfy its prima facie burden, we agree with the Supreme Court's determination to deny those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and to strike her answer, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
BALKIN, J.P., HINDS–RADIX, MALTESE and BRATHWAITE NELSON, JJ., concur.