| NMNT Realty Corp. v Knoxville 2012 Trust |
| 2017 NY Slip Op 05230 [151 AD3d 1068] |
| June 28, 2017 |
| Appellate Division, Second Department |
[*1]
| NMNT Realty Corp., Appellant, v Knoxville 2012Trust, Respondent, et al., Defendants. |
Miller, Rosado & Algios, LLP, Mineola, NY (Neil A. Miller and Christopher Rosado ofcounsel), for appellant.
Helfand & Helfand, New York, NY (Andrew B. Helfand and Diane Bradshaw ofcounsel), for respondent.
In an action pursuant to RPAPL 1501 (4) to cancel and discharge of record a mortgage, theplaintiff appeals from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.),dated January 29, 2015, as denied its cross motion for summary judgment on the complaintinsofar as asserted against the defendant Knoxville 2012 Trust.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2003, the plaintiff's predecessors-in-interest (hereinafter the mortgagors) executed amortgage in favor of Washington Mutual Bank, FA (hereinafter WAMU), that encumbered aparcel of real property located in Smithtown, Suffolk County (hereinafter the property), owned bythe mortgagors. The mortgage secured a note executed by one of the mortgagors, pursuant towhich he promised to repay the underlying loan in the sum of $918,000. In 2004, WAMUassigned the note and mortgage to Homecomings Financial Network, Inc. (hereinafterHomecomings).
The mortgagors defaulted by failing to make the monthly mortgage payment due onDecember 1, 2003, and any payments thereafter. On July 27, 2006, Homecomings commenced anaction to foreclose the mortgage. Among other things, the complaint stated that Homecomings"has elected and hereby elects to declare immediately due and payable the entire unpaid balanceof principal." A judgment of foreclosure and sale was obtained, but Homecomings subsequentlymoved to discontinue the action and vacate the judgment. By order dated September 22, 2011,the Supreme Court granted the motion. In February 2012, the plaintiff purchased the propertyfrom the mortgagors. The note and the mortgage were subsequently assigned to the defendantKnoxville 2012 Trust (hereinafter Knoxville).
In May 2013, the plaintiff commenced this action pursuant to RPAPL 1501 (4) to cancel anddischarge of record the mortgage on the ground that any action to foreclose was barred by thestatute of limitations. Knoxville moved for summary judgment dismissing the complaint [*2]insofar as asserted against it, and the plaintiff cross-moved forsummary judgment on the complaint insofar as asserted against Knoxville. The Supreme Courtdenied the motion and the cross motion, and the plaintiff appeals.
RPAPL 1501 (4) provides that "[w]here the period allowed by the applicable statute oflimitation for the commencement of an action to foreclose a mortgage . . . hasexpired," any person with an estate or interest in the property may maintain an action "to securethe cancellation and discharge of record of such encumbrance, and to adjudge the estate orinterest of the plaintiff in such real property to be free therefrom" (RPAPL 1501 [4]; see JBR Constr. Corp. v Staples, 71AD3d 952, 953 [2010]). An action to foreclose a mortgage is subject to a six-year statute oflimitations (see CPLR 213 [4]; Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985,986 [2016]; Nationstar Mtge., LLC vWeisblum, 143 AD3d 866, 867 [2016]; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982 [2012])." '[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' "(Nationstar Mtge., LLC v Weisblum, 143 AD3d at 867, quoting EMC Mtge. Corp. vPatella, 279 AD2d 604, 605 [2001]; see Wells Fargo Bank, N.A. v Burke, 94 AD3dat 982). A lender may revoke its election to accelerate the mortgage, but it must do so by anaffirmative act of revocation occurring during the six-year statute of limitations periodsubsequent to the initiation of the prior foreclosure action (see EMC Mtge. Corp. vPatella, 279 AD2d at 606).
Here, in support of its cross motion for summary judgment on the complaint insofar asasserted against Knoxville, the plaintiff submitted, inter alia, a copy of the verified complaint thatcommenced Homecomings' prior foreclosure action against the mortgagors, in whichHomecomings specifically stated that it had "elected and hereby elects to declare immediatelydue and payable the entire unpaid balance of principal." This established that the mortgage debtwas accelerated on or about July 27, 2006, the date on which the earlier foreclosure action wascommenced, and thus, that the applicable six-year statute of limitations had expired by the timethe plaintiff commenced the instant action on May 16, 2013. Consequently, the plaintiffestablished, prima facie, its entitlement to judgment as a matter of law on the complaint insofaras asserted against Knoxville (see Kashipour v Wilmington Sav. Fund Socy., FSB, 144AD3d at 987; Wells Fargo Bank, N.A. v Burke, 94 AD3d at 983; EMC Mtge. Corp. v Smith, 18 AD3d602, 603 [2005]; Clayton Natl. v Guldi, 307 AD2d 982 [2003]).
In opposition to the plaintiff's showing, the defendant submitted proof that, on August 16,2011, Homecomings moved for, and on September 22, 2011, was granted, an order thatdiscontinued the foreclosure action, canceled the notice of pendency, and vacated the judgmentof foreclosure and sale it had been granted. The defendant thereby raised a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]) as to whether Homecomings' motion "constituted anaffirmative act by the lender to revoke its election to accelerate" (Federal Natl. Mtge. Assn. vMebane, 208 AD2d 892, 894 [1994]). Contrary to the plaintiff's contention, this case isdistinguishable from the cases in which, because "[t]he prior foreclosure action was neverwithdrawn by the lender, but rather, dismissed . . . by the court[,] [i]t cannot be saidthat [the] dismissal by the court constituted an affirmative act by the lender to revoke its electionto accelerate" (id. at 894; seeKashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985 [2016]; ClaytonNatl. v Guldi, 307 AD2d 982 [2003]; EMC Mtge. Corp. v Patella, 279 AD2d at 606).The Supreme Court properly found that the mortgagors' conclusory statements that the "Order ofDiscontinuance was the result of procedural deficiencies in the proceedings," contained in theaffidavits submitted by the plaintiff in support of its cross motion, do not disprove an affirmativeact of revocation (see Zuckerman v City of New York, 49 NY2d at 562).
The parties' remaining arguments have been rendered academic in light of our determination.Chambers, J.P., Miller, Hinds-Radix and LaSalle, JJ., concur.