Opinion
1110 CA 18–00681
11-16-2018
DITECH FINANCIAL, LLC, Formerly Known as Green Tree Servicing, LLC, Plaintiff–Respondent, v. Timothy W. CORBETT, Sheila B. Corbett, also Known as Sheila Corbett, Defendants–Appellants, and Capital One Bank (USA), N.A., et al., Defendants.
HUMPLEBY LAW OFFICE, P.C., SYRACUSE (CRAIG C. HUMPLEBY OF COUNSEL), FOR DEFENDANTS–APPELLANTS. STIM & WARMUTH, P.C., FARMINGVILLE (GLENN P. WARMUTH OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
HUMPLEBY LAW OFFICE, P.C., SYRACUSE (CRAIG C. HUMPLEBY OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
STIM & WARMUTH, P.C., FARMINGVILLE (GLENN P. WARMUTH OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, 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 in January 2016, alleging that Timothy W. Corbett and Sheila B. Corbett (defendants) defaulted by failing to pay their monthly mortgage installments. Plaintiff thereafter moved for, inter alia, summary judgment striking defendants' answer. In opposition to plaintiff's motion, defendants contended, inter alia, that the foreclosure action is time-barred because the debt was accelerated in 2010 by plaintiff's predecessor in interest (see CPLR 213[4] ). Supreme Court granted the motion. We affirm.
"Where, as here, a mortgage is payable in installments, separate causes of action accrue for each unpaid installment, and the six-year statute of limitations begins to run on the date that each installment becomes due" ( Wilmington Sav. Fund Socy., FSB v. Gustafson, 160 A.D.3d 1409, 1410, 76 N.Y.S.3d 328 [4th Dept. 2018] ; see CPLR 213[4] ; Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 [2d Dept. 2010] ; United States of Am. v. Quaintance, 244 A.D.2d 915, 915–916, 665 N.Y.S.2d 191 [4th Dept. 1997], lv dismissed 91 N.Y.2d 957, 671 N.Y.S.2d 717, 694 N.E.2d 886 [1998] ). If 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 (see Business Loan Ctr., Inc. v. Wagner, 31 A.D.3d 1122, 1123, 818 N.Y.S.2d 406 [4th Dept. 2006] ; see also Deutsche Bank Natl. Trust Co. v. Adrian, 157 A.D.3d 934, 935, 69 N.Y.S.3d 706 [2d Dept. 2018] ; EMC Mtge. Corp. v. Patella , 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 [2d Dept. 2001] ).
We reject defendants' contention that a January 2010 letter to defendants from plaintiff's predecessor in interest accelerated the debt and thus that the statute of limitations began to run on the entire debt at that time. The 2010 letter, which, among other things, advised defendants of their default and of the lender's intention to accelerate the debt in the future if certain preconditions were not met, "falls far short of providing clear and unequivocal notice to defendants that the entire mortgage debt was being accelerated" ( Goldman Sachs Mtge. Co. v. Mares, 135 A.D.3d 1121, 1122, 23 N.Y.S.3d 444 [3d Dept. 2016] ; see FBP 250, LLC v. Wells Fargo Bank, N.A., 164 A.D.3d 1307, 1309, 85 N.Y.S.3d 177 [2d Dept. 2018] ; see generally Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 983, 943 N.Y.S.2d 540 [2d Dept. 2012] ). Inasmuch as a letter discussing acceleration as a possible future event does not constitute an exercise of the mortgage's optional acceleration clause (see 21st Mtge. Corp. v. Adames, 153 A.D.3d 474, 475, 60 N.Y.S.3d 198 [2d Dept. 2017] ; Goldman Sachs Mtge. Co., 135 A.D.3d at 1122–1123, 23 N.Y.S.3d 444 ; see generally Wells Fargo Bank, N.A., 94 A.D.3d at 982–983, 943 N.Y.S.2d 540 ), we conclude that the court properly granted plaintiff's motion.