Opinion
470 CA 19-02130
08-20-2020
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR SECURITIZED ASSET BACKED TRUST RECEIVABLES LLC TRUST 2007-BRI, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-BRI, Plaintiff-Appellant, v. Edward J. LEWIS, Defendant-Respondent, Daimler Chrysler Financial Services, et al., Defendants.
BLANK ROME LLP, NEW YORK CITY (TIMOTHY W. SALTER OF COUNSEL), FOR PLAINTIFF-APPELLANT. DOMBROW LAW FIRM, SYRACUSE (RUSSELL W. DOMBROW OF COUNSEL), FOR DEFENDANT-RESPONDENT.
BLANK ROME LLP, NEW YORK CITY (TIMOTHY W. SALTER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
DOMBROW LAW FIRM, SYRACUSE (RUSSELL W. DOMBROW OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this mortgage foreclosure action alleging that Edward J. Lewis (defendant) defaulted by failing to pay his monthly mortgage installments. Plaintiff, as limited by its brief, appeals from an order insofar as it granted that part of defendant's cross motion for summary judgment dismissing the complaint against him on the ground that the action is time-barred because it accrued when a prior foreclosure action, which was later dismissed, was commenced (see CPLR 213 [4] ). We affirm.
Contrary to plaintiff's contention, defendant met his initial burden of establishing that the action is untimely (see Deutsche Bank Natl. Trust Co. v. Adrian , 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 [2d Dept. 2018] ). " ‘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’ " ( Wilmington Sav. Fund Socy., FSB v. Fernandez , 179 A.D.3d 79, 81, 113 N.Y.S.3d 443 [4th Dept. 2019] ). However, "[i]f the mortgage holder accelerates the debt by a demand or by commencement of a foreclosure action, the statute of limitations begins to run on the entire debt" ( Ditech Fin., LLC v. Corbett , 166 A.D.3d 1568, 1568, 85 N.Y.S.3d 906 [4th Dept. 2018] ). Here, in support of the cross motion, defendant submitted plaintiff's complaint in the prior foreclosure action, which was filed on May 20, 2008 and "declare[d] immediately due and payable the entire unpaid balance of principal." Thus, defendant established that the mortgage debt was accelerated on that date and that the six-year statute of limitations applicable to mortgage foreclosure actions had expired by the time plaintiff commenced the instant action on April 6, 2015 (see Deutsche Bank Natl. Trust Co. , 157 A.D.3d at 935, 69 N.Y.S.3d 706 ).
Contrary to plaintiff's related contention, it failed to raise a triable issue of fact " ‘whether the statute of limitations was tolled or otherwise inapplicable, or whether ... plaintiff actually commenced the action within the applicable limitations period’ " ( Bank of N.Y. Mellon v. Dieudonne , 171 A.D.3d 34, 39, 96 N.Y.S.3d 354 [2d Dept. 2019], lv denied 34 N.Y.3d 910, 2020 WL 768939 [2020] ). It is well settled that "[a] lender may revoke its election to accelerate the mortgage, [although] 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" ( 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] ). Additionally, "de-acceleration notices must ... be clear and unambiguous to be valid and enforceable" ( Milone v. US Bank N.A. , 164 A.D.3d 145, 153, 83 N.Y.S.3d 524 [2d Dept. 2018], lv dismissed 34 N.Y.3d 1009, 115 N.Y.S.3d 205, 138 N.E.3d 1088 [2019] ). Plaintiff failed to establish that the correspondence that it sent to defendant during the six-year limitations period constituted an unambiguous affirmative act of de-acceleration (see Deutsche Bank Natl. Trust Co. , 157 A.D.3d at 935-936, 69 N.Y.S.3d 706 ).
Finally, we reject plaintiff's contention that under these circumstances the exercise of its option to accelerate the payments did not take effect until the entry of a judgment of foreclosure (see Bank of N.Y. Mellon , 171 A.D.3d at 39-40, 96 N.Y.S.3d 354 ; see also Wells Fargo Bank, N.A. v. Portu , 179 A.D.3d 1204, 1207, 116 N.Y.S.3d 761 [3d Dept. 2020] ).