Opinion
2016–06060 Index No. 502800–15
01-30-2019
US BANK TRUST, N.A., etc., Respondent, v. Una WILLIAMS, Appellant, et al., Defendants.
Una Williams, Brooklyn, NY, appellant pro se.
Una Williams, Brooklyn, NY, appellant pro se.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the appeal from so much of the order as denied that branch of the motion which pursuant to CPLR 3211(a)(3) to dismiss the complaint for lack of standing is dismissed, without costs or disbursements; and it is further,
ORDERED that the order is affirmed insofar as reviewed, without costs or disbursements.
In March 2015, the plaintiff commenced this action to foreclose a mortgage alleging, inter alia, that the defendant Una Williams (hereinafter the defendant) had defaulted in her mortgage payment due July 1, 2006, and on all payments due thereafter. Thereafter, the defendant moved pursuant to CPLR 3211(a)(3) and (5) to dismiss the complaint for lack of standing and as barred by the statute of limitations. The Supreme Court denied the motion, and the defendant appeals.
"It is the obligation of the appellant to assemble a proper record on appeal" ( JR Factors, Inc. v. Astoria Equities, Inc., 159 A.D.3d 801, 801, 69 N.Y.S.3d 823 ; see Lee v. Barnett, 134 A.D.3d 908, 910, 22 N.Y.S.3d 122 ; Elgart v. Berezovsky, 123 A.D.3d 970, 971, 999 N.Y.S.2d 515 ; Green Tree Credit, LLC v. Jelks, 120 A.D.3d 1300, 991 N.Y.S.2d 902 ). The record filed by the defendant on this appeal does not contain any of the papers that were submitted by the plaintiff in opposition to the defendant's motion to dismiss, including an affidavit, referred to by the Supreme Court as the "Modlin Affidavit," which the court found "sufficient to demonstrate that Plaintiff's agent was in possession of the note on its behalf prior to filing this case," and upon which the court based its finding that the plaintiff had standing. Since the record is inadequate to enable this Court to render an informed decision on the merits regarding so much of the appeal as relates to the issue of standing, so much of the appeal as relates to that issue must be dismissed (see JR Factors, Inc. v. Astoria Equities, Inc., 159 A.D.3d at 802, 69 N.Y.S.3d 823 ; Elgart v. Berezovsky, 123 A.D.3d at 971, 999 N.Y.S.2d 515 ; Green Tree Credit, LLC v. Jelks, 120 A.D.3d at 1300–1301, 991 N.Y.S.2d 902 ).
As to that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the applicable six-year statute of limitations (see CPLR 213[4] ), "[w]ith 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" ( Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ; see U.S. Bank N.A. v. Gordon, 158 A.D.3d 832, 835, 72 N.Y.S.3d 156 ; Wells Fargo Bank, N.A. v. Cohen, 80 A.D.3d 753, 754, 915 N.Y.S.2d 569 ). 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 U.S. Bank N.A. v. Gordon, 158 A.D.3d at 835, 72 N.Y.S.3d 156 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 982, 943 N.Y.S.2d 540 ). "Where the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder's election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation" ( Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 982–983, 943 N.Y.S.2d 540 ; see U.S. Bank N.A. v. Gordon, 158 A.D.3d at 835, 72 N.Y.S.3d 156 ; Esther M. Mertz Trust v. Fox Meadow Partners, 288 A.D.2d 338, 340, 734 N.Y.S.2d 77 ). "[U]nder certain circumstances, the commencement of a foreclosure action may be sufficient to put the borrower on notice that the option to accelerate the debt has been exercised" ( U.S. Bank N.A. v. Gordon, 158 A.D.3d at 836, 72 N.Y.S.3d 156 ; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 983, 943 N.Y.S.2d 540 ; EMC Mtge. Corp. v. Smith, 18 A.D.3d 602, 603, 796 N.Y.S.2d 364 ).
Here, the defendant contended that the commencement of a prior mortgage foreclosure action by HSBC Mortgage Services Inc. (hereinafter HSBC), in November 2006 was sufficient to accelerate the mortgage debt. However, in support of her motion, the defendant submitted a copy of an amended order of the Supreme Court dated September 30, 2014, which granted the defendant's motion to dismiss the prior mortgage foreclosure action on the ground that HSBC did not have standing to commence that action because it was not the holder of the note and mortgage at the time that action was commenced. Since HSBC was not the holder of the note and mortgage at the time of the commencement of the prior mortgage foreclosure action, it lacked the authority to accelerate the debt through the complaint in that action (see Milone v. U.S. Bank National Association, 164 A.D.3d 145, 83 N.Y.S.3d 524 ; U.S. Bank N.A. v. Gordon, 158 A.D.3d at 836, 72 N.Y.S.3d 156 ; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 983, 943 N.Y.S.2d 540 ; EMC Mtge. Corp. v. Smith, 18 A.D.3d at 603, 796 N.Y.S.2d 364 ). Thus, the defendant failed to meet her initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank N.A. v. Gordon, 158 A.D.3d at 835–836, 72 N.Y.S.3d 156 ; Campone v. Panos, 142 A.D.3d 1126, 1127, 38 N.Y.S.3d 226 ).
Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the statute of limitations.
SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.