MEMORANDUM This is an action for foreclosure upon a Note executed on or about August 21, 2007 by the defendant Maxine Clarke (hereinafter the “defendant”) in the amount of $500,000.00. As collateral for the Note, the defendant executed a mortgage on September 9, 2005 for the property known as 136-31 221d Street, Laurelton, New York, 11413. In the first branch of the motion, the plaintiff moves for summary judgment, and to strike defendant’s Answer. Plaintiff has submitted, among other things, the following: Summons and Verified Complaint; Note; Mortgage; Assignments; Power of Attorney; Certificate of Merit; Notices of Default; RPAPL 1304 Notices; and RPAPL Proof of Filing; Affidavits of Service; defendant’s Answer; and an affidavit from Roberto Montoya. In his affidavit, notarized on April 30, 2019, Mr. Montoya, an assistant secretary of Rushmore Loan Management Services, LLC Servicer and Attorney in fact for the plaintiff, states that the defendant “defaulted on the Mortgage by failing to make the monthly installment due on SEPTEMBER 1, 2012 and have remained in default to the present date”. Pursuant to the terms of the Mortgage, Mr. Montoya states that Notice(s) of Default were mailed to the defendant on June 25, 2018 by via first class mail and certified mail to the last known address provided by the defendant, which was the Mortgaged Premises. Thereafter, on April 26, 2018. RPAPL 1304 Notices were served upon the defendant by certified mail and first class mail to her last known address. Mr. Montoya states that there is now due and owing to the plaintiff the principal sum of $470,523.53 with interest thereon from August 1, 2012. Based upon the foregoing, the plaintiff argues that it is entitled to summary judgment as against the defendant, and defendant’s Answer should be stricken. In the first branch of the cross-motion, the defendant opposes plaintiff’s request for summary judgment, seeks an order for summary judgment in her favor, and requests that the Complaint be dismissed, with prejudice, as time-barred. Defendant has submitted, among other things, the following: memorandum of law; defendant’s affidavit; Acceleration Notice; 2009 Complaint; Stipulation of Discontinuance for 2009 Complaint; 2014 Complaint; and the decision, dated November 23, 2015 issued by Justice Carmen R. Velasquez in the 2014 Complaint. The defendant concedes that she has failed to comply with the terms and conditions of the loan by initially failing to remit the debt service payment due March 1, 2009, and has continuously failing to remit the debt service payments due thereafter (hereinafter the “Default”). Defendant also concedes that the plaintiff’s predecessor-in-interest mailed a Notice of Acceleration, dated May 21, 2009, to her by first-class mail, in compliance with paragraphs 15, 20, and 22 of the Mortgage. The Acceleration Notice provided, in relevant part, that “[u]nless we receive full payment of all past-due amounts [within 30 days], we will accelerate the maturity of the loan, declare the obligation due and payable without further demand, and being foreclosure proceedings.” Defendant concedes that she did not comply with the Acceleration Notice’s demand for payment of $11,768.44 by June 22, 2009. Therefore, the defendant argues that the loan was actually accelerated immediately, and was due and payable in full sometime between June 23, 2009 and July 8, 2009. After the loan was accelerated, the defendant claims that the plaintiff’s predecessor-in-interest commenced a foreclosure action in 2009, and 2014. In the action entitled GMAC Mortgage, LLC v. Maxine Clarke, et al., under Index Number 18202/09, a Stipulation of Discontinuance was entered on April 24, 2014, which stated in pertinent part that the action is being discontinued “to allow for compliance with certain condition precedents which were initially believed to be inapplicable to the matter herein”. In the action entitled DB Structured Products, Inc. v. Maxine Clark, et al., under Index Number 430/14, Justice Velasquez issued a decision granting plaintiff’s motion to discontinue the action and cancel the Notice of Pendency on November 23, 2015. Defendant argues that the Complaint filed in this action on December 7, 2018 is time-barred pursuant to CPLR 213(4). Defendant claims that the accrual date for the statute of limitations in this action began on one of three dates, which are all more than six years before this action was commenced. The defendant argues that the accrual date for the statute of limitations began on June 23, 2009, upon her failure to cure her default as set forth in the Acceleration Notice. Alternatively, the defendant argues that the accrual date commenced on July 8, 2009, the date alleged in the 2009 Complaint. As a final alternative, the defendant argues that the accrual date is July 3, 2009, the date the 2009 Complaint was filed. In opposition, the plaintiff argues that this action is not time-barred, and that defendant’s arguments relating to a prior 2009 and 2014 action are devoid of merit, as the two prior actions were based on a March 1, 2009 default. Rather, the plaintiff claims that the instant action is based upon a September 1, 2012 default. Even if the current action was premised upon the March 1, 2009 default, the plaintiff argues that the 2009 and 2014 action were never accelerated to start the toll because these actions were discontinued for failure to comply with the pre-commencement notices. On a motion for summary judgment, the moving parties must establish their defenses sufficiently to warrant a court awarding judgment in their favor as a matter of law (Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]). The opposing party must then produce sufficient evidentiary proof in admissible form to raise a triable issue of fact warranting a trial. Id. It is the court’s burden to determine whether a triable issue of fact exists (Barr v. County of Albany, 50 NY2d 247 [1981]). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). That limitations period begins to run on the entire debt when the mortgagee elects to accelerate the mortgage (see U.S. Bank, N.A. v. Martin, 144 AD3d 891, 891-892 [2d Dept. 2016]). Although a lender may revoke its election to accelerate the loan, 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 (see Milone v. US Bank N.A., 164 AD3d 145 [2d Dept. 2018], lv dismissed NY3d, 2019 Slip Op 84711 [2019]; Freedom Mtge. Corp. v. Engel, 163 AD3d 631, 632 [2d Dept. 2018]lv dismissed 33 NY3d 1039 [2019]); Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d 934, 935 [2d Dept. 2018]). Here, the Court finds that the defendant demonstrated her prima facie entitlement to summary judgment. The language in the Acceleration Notice constituted a clear and unequivocal intent to accelerate the loan balance and commence the statute of limitations on the entire mortgage debt (Vargas v. Deutsche Bank Nat’l Tr. Co., 168 AD3d 630 [1st Dept. 2019]). In opposition, the plaintiff failed to submit any evidence of an affirmative act evincing its, or its predecessor-in-interest’s, intent to revoke the acceleration of the loan prior to the expiration of the limitations period (see Deutsche Bank Trust Co. Ams. v. Smith, 170 AD3d 660 [2d Dept. 2019]; Freedom Mtge. Corp. v. Engel, supra). As such, the Court finds that the limitations period began to run on June 23, 2009, which was the date the defendant was obligated to cure her default by pursuant to the terms of the Acceleration Notice. Consequently, this action is time-barred pursuant to CPLR 213(4), since it was commenced on December 7, 2018, more than six years after the limitations period accrued. Accordingly, the Court grants the branch of the defendant’s cross-motion seeking summary judgment and dismissing the Complaint with prejudice, and denies the branch of the plaintiff’s motion seeking summary judgment, and striking and dismissing the defendant’s Answer. The remaining branches of the plaintiff’s motion seeking a default judgment against the non-answering defendants, and to amend the caption is granted without opposition. The remaining branch of the cross-motion seeking reasonable attorneys’ fees, costs, and disbursements pursuant to RPL 282(1) is granted. Where, as here, the defendant/mortagagor is the prevailing party in a foreclosure action, she is entitled to an award of attorneys’ fees and expenses for the successful defense of the action pursuant to RPL 282(1) (21st Mtge. Corp. v. Nweke, 165 AD3d 616 [2d Dept, 2018]). The Court finds that the plaintiff’s claims that defendant is not entitled to attorneys’ fees and expenses, because the it has not received a mortgage payment in over six years and has been paying the taxes and insurance on the Mortgage Premises is without merit under the terms of the statute. Accordingly, a hearing shall be held at a later date, to be scheduled by the Court, to determine the amount of reasonable attorneys’ fees, costs, and disbursements defendant is entitled to pursuant to RPL 282(1). Based upon the foregoing, the motion is granted in part and denied in part, and the cross-motion is granted. Submit order. December 9, 2019
