The following papers numbered 1 to 12 read on this motion by plaintiff for summary judgment, a default judgment, an order of reference and amendment of the caption; and cross-motion by defendant, Mei Kuey Wu Huang, for summary judgment.Papers NumberedAmended Notice of Motion-Affirmation-Exhibits 1-4Notice of Cross-Motion-Memorandum of Law Affirmations-Exhibits 5-10Affirmation in Opposition 11-12 Upon the foregoing papers it is ordered that the motion and cross-motion are decided as follows:Motion by plaintiff in this mortgage foreclosure action for summary judgment against defendant mortgagor Huang, for a default judgment against the non-answering defendants, for an order of reference and for amendment of the caption is denied. Cross-motion by Huang for summary judgment dismissing the complaint and for an order cancelling and discharging the mortgage of record, upon the ground, inter alia, that this foreclosure action is barred by the statute of limitations, is granted.A prior assignee of the note and mortgage and predecessor in interest to plaintiff, Citibank, N.A., commenced a foreclosure action against defendant mortgagor Huang on January 13, 2011 under a prior Index Number (Index No. 1021/11). That complaint, at paragraph Fifth, alleged that the mortgagor defaulted on the payment of the loan commencing with the payment due on July 1, 2010 and further apprised, “Accordingly, Plaintiff elects to call due the entire amount secured by the mortgage.” Thus, the principal balance of the loan, alleged to be, at that time, $650,000, was accelerated on January 13, 2011 by the commencement of that foreclosure action.Citibank subsequently discontinued that foreclosure action pursuant to a stipulation discontinuing the action dated September 14, 2012.Plaintiff acquired the loan by assignment on August 2, 2017 and thereupon immediately filed the instant foreclosure action on September 6, 2017. The complaint again recites that defendant defaulted on the loan commencing with the July 1, 2010 payment, and paragraph Ninth of the complaint declares, “More than fifteen (15) days have elapsed since the first of said defaults occurred, and by reason thereof, Plaintiff has elected and hereby elects to declare immediately due and payable the entire unpaid balance of principal”.In his answer to the present action, Huang interposes, inter alia, the affirmative defense of statute of limitations, and cross-moves for summary judgment upon the ground that the loan was accelerated in January 2011 and, therefore, the present action, commenced more than 6 years thereafter, is time-barred.The statute of limitations on a foreclosure action is six years, pursuant to CPLR 213(4), and begins to run on the entire mortgage debt when the loan is affirmatively accelerated, since acceleration of the principal balance of the loan terminates the borrower’s right and obligation to make monthly installments and renders the entire principal balance due and owing (see Wells Fargo Bank, N.A. v. Burke, 94 AD 3d 980 [2" Dept 2012]; EMC Mortgage Corp. v. Patella, 279 AD 2d 604 [2' Dept 2001]).The option of the mortgagee under the terms of the mortgage to accelerate the loan must be exercised by clear and unequivocal notice to the mortgagor, which may be accomplished by the commencement of a foreclosure action (see Beneficial Homeowner Service Corp. v. Tovar, 150 AD 3d 657 [2' Dept 2017]). Here, Huang established her prima facie burden on her cross-motion by showing undisputed evidence that the mortgage debt was accelerated by the commencement of the prior action in January 2011 and that plaintiff did not commence the present action until September 2017, over six years after the acceleration of the loan, and thus that the action is time-barred (see U.S. Bank Trust. N.A. v. Aorta, 167 AD 3d 807 [2 Dept 2018]; Ventures Trust v. Chitbahal, 167 AD 3d 682 [2' Dept 2018]]).Plaintiff, in opposition to the cross-motion, argues that the discontinuance of the prior action also constituted an intention of plaintiff’s predecessor to revoke its acceleration of the loan.This Court notes that a plaintiff may affirmatively revoke its election to accelerate a mortgage loan and at some subsequent time accelerate it once again, in which case an action commenced within the six-year period after a new acceleration of the mortgage is not barred by the statute of limitations, even though the original default occurred on a mortgage payment due over six years prior to the commencement of the foreclosure action (see, e.g., Federal National Mortgage Assn. v. Mebane, 208 AD 2d 892 (2nd Dept 1994); EMC Mortgage Corp. v. Patella, 279 AD 2d 604 [2nd Dept 2001]). This is, as noted, due to the consequence of acceleration, since the plaintiff is not suing upon past due installments of principal and interest, but upon the entire loan and, therefore, the default, which triggers the accrual of the plaintiff’s cause of action, becomes no longer merely the failure to make some past-due installments under the loan, but constitutes the failure of the mortgagor to satisfy the plaintiff mortgagee’s demand for repayment of the entire loan. As long as the action is commenced within six years of the mortgagee’s acceleration of the loan and demand for repayment of the entire loan, the action is timely. And as noted, acceleration of the loan may be declared in the complaint itself.“[T]he plaintiff’s execution of the [September 14, 2012] stipulation did not, in itself, constitute an affirmative act to ‘revoke its election to accelerate, since, inter alia, the stipulation was silent on the issue of the revocation of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the defendant” (Freedom Mortgage Corp. v. Engel, 163 AD 3d 631, 633 (2nd Dept 2018)). Thus, the discontinuance of the prior action, in and of itself, did not constitute an affirmative act of revocation by plaintiff’s predecessor of its acceleration of the loan. As noted, by accelerating the entire principal balance of the loan, plaintiff is terminating the mortgagor’s right and obligation under the loan agreement to pay the loan in monthly installments and is demanding payment of the entire principal balance. Therefore, in order to revoke its election to accelerate the loan, or to “de-accelerate” it, plaintiff must not only, as a matter of course, discontinue its foreclosure action seeking payment of the entire principal balance, but must also reinstate the mortgage and resume sending the borrower bill statements for the payment of the loan in the installments of principal and interest set forth in the mortgage. Plaintiff did not do so. No evidence is presented, and it is not even alleged, that plaintiff’s predecessor in interest, within the six-year statute of limitations counted from July 1, 2010, revoked the election to accelerate the loan either by explicit language in the stipulation of discontinuance or any other unequivocal act. It is neither shown nor even alleged that plaintiff’s predecessor, within the statute of limitations, gave notice to the mortgagor by means of any mode of communication that the loan had been reinstated as an installment loan, and no evidence has been submitted, and it is not even represented, that plaintiff’s predecessor recommenced sending Huang any mortgage loan statements for payment of principal and interest, including arrears. The standard acceleration recitation contained in the present complaint is thus meaningless, since the loan had already been accelerated in 2011.Moreover, if, arguendo, plaintiff’s predecessor had de-accelerated the loan, thereby restoring it to an installment loan, and plaintiff accelerated the loan anew in the present complaint, then it could only have sought a principal balance due commencing with the installment payment that was due six years prior to that acceleration, which if the acceleration was effected upon commencement of the present action on September 6, 2017, would be from the payment due September 2011. That the complaint seeks a sum owing from the same default date of July 1, 2010 demonstrates that the loan was never reinstated as an installment loan but that plaintiff merely commenced a new foreclosure action based upon the same acceleration effected by its predecessor.Accordingly, it is herebyORDERED that the motion is denied, the cross-motion is granted, and the complaint is dismissed, and it is furtherORDERED, that the County Clerk of Queens County is directed to cancel and discharge a certain notice of pendency filed in this action on September 6, 2017, against the property known as Block 5589, Lot 25, also known as 174-48 Pidgeon Meadow Road, Fresh Meadows, NY 11365, and said Clerk is hereby directed to enter upon the margin of the record of same a Notice of Cancellation referring to this Order; and it is furtherORDERED, that the Clerk of the County of Queens be served with a copy of this Order with Notice of Entry without undue delay.Finally, this Court need not reach, and will not determine, the alternative grounds for dismissal raised in the cross-motion.Dated: February 5, 2019
