In 1081 Stanley Ave., LLC . Bank of New York Mellon Trust Company, N.A. , Supreme Court, Appellate Division, Second Department, New York, January 29, 2020, 2020WL 465549; 2020 NY Slip Op. 00559, the Appellate Court reversed and the plaintiff’s motion for summary judgment on the complaint was granted and defendant’s cross motion for summary judgment dismissing the complaint was denied.https://law.justia.com/cases/new-york/appellate-division-second-department/2020/2017-06386.html
The instant action was commenced pursuant to RPAPL 1501(4) to cancel and discharge a mortgage in the sum of $551,200.00. In March 2009, Bank of New York Trust Company, NA commence an action against Batista to foreclose the mortgage. (Mortgage was thereafter further assigned). By order dated November 14, 2013, the Supreme Court dismissed the 2009 action as abandoned under CPLR 3215(c).
The Plaintiff herein, acquired the premises pursuant to a deed dated June 22, 2015, and commenced an action against Bank of New York Trust pursuant to RPAPL article 15 to cancel and discharge the mortgage. In the complaint is was alleged that any interest of the defendant was barred by the statute of limitations. Defendant filed an answer alleging, among other items, that the acceleration of the debt was revoked prior to expiration of the statute of limitations and that Batista had acknowledged the debt, thereby restarting the statute of limitations. The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. The plaintiff then appealed.
A lender 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. The defendant submitted the affidavit of Mark Syphus, a Document Control Officer of Select Portfolio Servicing, Inc., the defendant’s attorney-in-fact and loan servicer, to which was annexed a letter addressed to Batista, dated December 29, 2014, stating that the acceleration of the mortgage debt was “hereby rescinded.” However, the defendant failed to show that the letter dated December 29, 2014, constituted an affirmative act revoking the acceleration, since the defendant submitted no evidence that the letter was sent to Batista.
Additionally, defendant failed to show that certain authorizations signed by Batista constituted acknowledgments sufficient to revive the statute of limitations. The authorizations were attempts to negotiate loan modifications and not unqualified acknowledgments of the debt sufficient to reset the running of the statute of limitations.
Another lesson in the necessity of documentary evidence of mailing for a de-acceleration letter to have the intended effect.
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