In an action to foreclose a mortgage (1) the plaintiff moves for summary judgment against the defendants William Weininger and Ellen Weininger, a default judgment against the non-appearing parties, an order of reference, and to amend the caption (motion sequence #1); and (2) the defendants William Weininger and Ellen Weininger cross-move for summary judgment dismissing the complaint (motion sequence #2): Papers Considered 1. Amended Notice of Motion/Affirmation of Scali Riggs, Esq./Affidavit of Daniel Delpesche/Exhibits A-J; 2. Notice of Cross Motion/Affidavit of Ellen Weininger/Affidavit of William Weininger/Exhibits 1-9/Memorandum of Law of Christopher A. Gorman, Esq.; 3. Affidavit of Katherine Ortwerth in Opposition to Cross Motion/Exhibits A-K; 4. Affirmation of Leah Jacob in Opposition/Exhibit A; 5. Sur-Reply Affirmation of Leah N. Jacob. DECISION & ORDER Factual and Procedural Background This is the third residential foreclosure action commenced upon the same note and mortgage. On June 28, 2007, the defendant William Weininger borrowed $875,000.00 from plaintiff’s predecessor in interest and executed a note. On that same day, William Weininger and the defendant Ellen Weininger delivered a mortgage on real property located at 76 Ralph Avenue n/k/a 24 Prescott Avenue, White Plains, New York, to secure the loan. Defendants defaulted on the payment due May 1, 2010, and each monthly installment payment thereafter. Plaintiff commenced the first foreclosure action with the filing of a summons and complaint on October 26, 2010. In an order entered August 5, 2016, the Supreme Court, Westchester County (Scheinkman, J.) granted the plaintiff’s motion to discontinue the 2010 foreclosure action. A second foreclosure action was commenced in 2015. Plaintiff’s motion to dismiss the 2015 complaint was granted in an order of this Court dated October 4, 2016. On October 14, 2016, Ocwen Loan Servicing, LLC issued a 90-day pre-foreclosure letter to William Weininger. On March 7, 2017, Ocwen issued a 90-day pre-foreclosure letter to Ellen Weininger. This notice was mailed to Ellen Weininger at an address other than the mortgaged premises. Plaintiff commenced this action with the filing of a summons and complaint on March 24, 2017. Plaintiff now moves for summary judgment against the Weiningers, a default judgment against the non-appearing parties, an order of reference, and to amend the caption. The defendants cross-move for summary judgment dismissing the complaint. The defendants argue that this action is barred by the six-year statute of limitations. Specifically, the defendants argue that the debt was accelerated by the filing of the 2010 foreclosure action and that the acceleration was never affirmatively revoked by plaintiff. Defendants also argue that the plaintiff failed to comply with RPAPL 1304 by failing to send a timely 90-day pre-foreclosure letter to Ellen Weininger. In opposition, plaintiff argues that it affirmatively revoked the acceleration of the mortgage by moving to discontinue the 2010 foreclosure action and also by granting the defendant a loan modification in 2014 in which it agreed to accept installment payments. Plaintiff attaches a proposed modification agreement to William Weininger, dated April 15, 2014, indicating that a full down payment of $5,126.34 was required and the new monthly installment payments of $5,126.34 would commence on June 1, 2014. A subsequent letter to William Weininger, dated June 10, 2014, states that plaintiff could not offer a loan modification due to his failure to make the initial trial payment for the loan modification within the required timeframe. Plaintiff also argues that Ellen Weininger is not a “borrower” who is entitled to notice pursuant to RPAPL 1304 as she did not execute the note. Discussion A plaintiff establishes its prima facie case for summary judgment in an action to foreclose a mortgage through the production of the mortgage, the unpaid note, and evidence of default (see Hudson City Sav Bank v. Genuth, 148 AD3d 687 (2d Dept 2017]). Here, plaintiff demonstrated entitlement to summary judgment by producing the mortgage, the unpaid note, and evidence of the default. Moreover, upon all the evidence submitted on the motion and the cross motion, this action is timely commenced. An action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action (see CPLR 213 [4]). With respect to a mortgage payable in installments, there are separate causes of action for each installment accrued, and the statute of limitations begins to run on the date each installment becomes due (see Wells Fargo Bank, N.A. v. Cohen, 80 AD3d 753, 754 [2d Dept 2011]; Loiacono v. Goldberg, 240 AD2d 476, 477 [2d Dept 1997]). “[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” (Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980 [2d Dept 2012] quoting EMC Mtge. Corp. v. Patella, 279 AD2d 604, 605 [2d Dept 2001]). A mortgage debt is accelerated when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due (see Milone v. US Bank N.A., 164 AD3d 145, 152 [2d Dept 2018]). A lender, however, “may revoke its election to accelerate the mortgage, but 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” (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1069-1070 [2d Dept 2017]; Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d 934, 935 [2d Dept 2018]). Here, the filing of the first foreclosure action in October 2010 accelerated the mortgage debt and the statute of limitations began to run (see EMC Mtge. Corp. v. Patella, 279 AD2d 604 [2001]). The evidence demonstrates that the plaintiff affirmatively revoked its election to accelerate the mortgage within the six-year time period rendering the commencement of this action timely. Plaintiff submitted proof that it moved for and, on August 5, 2016, was granted an order that discontinued the 2010 foreclosure action and canceled the notice of pendency (see NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d at 1070). In addition, plaintiff also submitted proof of its willingness to enter into a loan modification and accept installment payments on the loan in 2014, which is also an affirmative act of revocation. Moreover, even if the second foreclosure action accelerated the debt in 2015, the commencement of this action on March 24, 2017, was timely. Defendant argues that the plaintiff failed to comply with RPAPL 1304 by failing to issue a 90-day pre-foreclosure notice to Ellen Weininger. Defendant also challenges the 90-day pre-foreclosure notice sent to William Weininger as insufficient to demonstrate strict compliance with 1304. Plaintiff argues that it strictly complied with 1304 and that Ellen is not a “borrower” because she did not sign the note and therefore, was not entitled to notice pursuant to 1304. “[W]here, as here, the plaintiff in a residential foreclosure action alleges in its complaint that it has served an RPAPL 1304 notice on the borrowers, in support of a motion for summary judgment the plaintiff must ‘prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304′” (Bank of N.Y. Mellon v. Aquino, 131 A.D.3d 1186 [2d Dep't 2015] citing Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106 [2d Dep't 2011]). Compliance with RPAPL 1304 is a condition precedent to the commencement of a foreclosure action and the plaintiff has the burden of demonstrating such compliance (see Flagstar Bank, FSB v. Damaro, 145 A.D.3d 858 [2d Dep't 2016]; Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d at 106). Pursuant to RPAPL 1304, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type” (RPAPL 1304 [1]). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304 [1]), and states that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower (see RPAPL 1304 [2]) (see Deutsche Bank Natl. Trust Co. v. Spanos, 102 A.D.3d 909, 910 [2d Dep't 2013]). “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Citibank, N.A. v. Conti-Scheurer, 172 AD3d 17 [2d Dept 2019] [internal quotations omitted]; Bank of Am., N.A. v. Bittle, 168 AD3d 656, 658 [2d Dept 2019]). Here, plaintiff established, prima facie, through an affidavit of its servicer, that it strictly complied with RPAPL 1304 by serving a 90-day pre-foreclosure notice to William Weininger. The issue raised is whether Ellen Weininger is a “borrower” entitled to the 1304 notice. In Aurora Loan Servs. v. Weisblum, 85 AD3d 95 (2d Dept 2011) overruled in part Citibank, N.A. v. Contin-Scheurer, 172 AD3d 17 (2d Dept 2019), the Court was faced with the issue of whether one of the defendants was a borrower and entitled to a RPAPL 1304 notice. There, Steven Weisblum and Patti Weisblum initially obtained a mortgage loan in April 2006 and obtained a subsequent loan in December 2006. Along with the second mortgage, the Weisblums executed a Consolidation Extension and Modification Agreement (“CEMA”) consolidating both loans into a single lien. In the CEMA both parties were identified as the borrowers and they both signed the agreement. However, the consolidated note was only signed by the bank and Steven Weisblum. In determining whether Patti Weisblum was entitled to a notice pursuant to RPAPL 1304, which provides that such notice must be sent to the “borrower” but does not define the term, the Court found that the record was sufficient to establish that Patti Weisblum was a borrower. The Court found that that both parties executed the CEMA, were collectively defined in the CEMA as the “borrower”, and agreed to pay the amounts due under the consolidated note, which was expressly incorporated by reference in the CEMA. In addition, the CEMA provided that the holder of the consolidated note “may enforce its rights” against each borrower, and the bank sought to enforce its rights under the consolidated note and mortgage against both of the Weisblums. Similarly in Aurora Loan Servs., LLC v. Komarovsky, 151 AD3d 924, 927 (2d Dept 2017), the Court held that although only Reuven Komarovsky was identified as the “borrower” on the consolidated note, both Reuven Komarovsky and Alexander Komarovsky executed the CEMA, are collectively defined in the CEMA as “borrower,” and mutually agreed, under that definition as “borrower,” to “take over all of the obligations” under the consolidated note. Moreover, the CEMA provided that “[i]f more than one person signs this Agreement as Borrower, each of us is fully and personally obligated to keep all of Borrower’s promises and obligations contained in this Agreement,” and the “Note Holder” was entitled to enforce its rights against each signatory individually. Thus, the record is sufficient to establish that Alexander Komarovsky was a “borrower” within the meaning of RPAPL 1304 (1) (see Aurora Loan Servs., LLC v. Weisblum, 85 AD3d at 105). Here, only William Weininger executed the note. Both William and Ellen Weininger executed the mortgage as borrowers and agreed to pay the amounts due under the note. Paragraph 13 of the mortgage contains the same language relied upon in Komarovsky, i.e. “[i]f more than one Person signs this Security Instrument as Borrower, each of us is fully obligated to keep all of Borrower’s promises and obligations contained in this Security Instrument. Lender may enforce Lender’s rights under this Security Instrument against each of us individually or against all of us together. This means that any one of us may be required to pay all of the Sums Secured”. Nevertheless, the mortgage herein also contains the following language — which is not addressed in Komarovksy or Weisblum: However, if one of us does not sign the Note: (a) that Person is signing this Security Instrument only to give that Person’s rights in the Property to Lender under the terms of this Security Instrument; (b) that Person is not personally obligated to pay the Sums Secured; and (c) that Person agrees that Lender may agree with the other Borrowers to delay enforcing any of the Lender’s rights, to modify, or make any accommodations with regard to the terms of this Security Instrument or the Note without that Person’s consent (emphasis supplied). Ellen Weininger, by not signing the note, is expressly not personally obligated to pay the sum secured by the mortgage. Therefore, on this record, in light of the foregoing language contained in paragraph 13 of the mortgage, the Court finds that Ellen Weininger was not a “borrower” entitled to a 90-day pre-foreclosure notice pursuant to RPAPL 1304. The Court has considered the defendants’ remaining contentions not specifically addressed herein and finds them to be without merit. Accordingly, it is ORDERED that the plaintiff’s motion for summary judgment against the defendants William Weininger and Ellen Weininger, a default judgment against the non-appearing parties, an order of reference, and to amend the caption is GRANTED and the order of reference is signed herewith (motion sequence #1); and it is further ORDERED that the cross motion of the defendants William Weininger and Ellen Weininger for summary judgment dismissing the complaint is DENIED (motion sequence #2). Dated: White Plains, New York August 15, 2019
