Gardner v. Wells Fargo Bank Nat'l Ass'n

219 A.D.3d 703

195 N.Y.S.3d 66

Edward GARDNER, et al., appellants,

v.WELLS FARGO BANK NATIONAL ASSOCIATION, etc., respondent, et al., defendants.

2019-14447, 2020-03712

Index No. 604255/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 27, 2023

August 16, 2023

Brian McCaffrey Attorney at Law, P.C., Jamaica, NY (Brian McCaffrey pro se of counsel), for appellants Brian McCaffrey and Daniel Harris.

Joseph E. Soffey, Garden City, NY, for appellants Edward Gardner and Marilyn Gardner.

Greenberg Traurig, LLP, New York, NY (Patrick G. Broderick of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiffs appeal from (1) a decision of the Supreme Court, Nassau County (James P. McCormack, J.), entered November 27, 2019, and (2) a judgment of the same court entered April 13, 2020. The judgment, insofar as appealed from, upon the decision, made after a nonjury trial, is in favor of the defendant Wells Fargo Bank National Association and against the plaintiffs dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the facts, the complaint is reinstated insofar as asserted against the defendant Wells Fargo Bank National Association, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment, inter alia, in favor of the plaintiffs and against the defendant Wells Fargo Bank National Association on the complaint insofar as asserted against that defendant; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

On May 12, 2017, the plaintiffs commenced this action, inter alia, pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage against the defendant Wells Fargo Bank National Association (hereinafter the defendant), among others. The plaintiffs alleged that the six-year period for the commencement of an action to foreclose the mortgage had expired, as the mortgage debt had been accelerated on February 20, 2008, by the commencement of a foreclosure action (hereinafter the 2008 foreclosure action), that the 2008 foreclosure action was discontinued more than six years later, on September 29, 2016, and that the statute of limitations to commence a second foreclosure action had therefore expired. The defendant interposed an answer to the complaint in which it asserted, among other things, an affirmative defense of unclean hands. Following a nonjury trial, in a decision entered November 27, 2019, the Supreme Court found, inter alia, that the mortgage debt had been de-accelerated in January 2013, when the defendant's loan servicer sent the plaintiffs Edward Gardner and Marilyn Gardner (hereinafter together the Gardners) a proposed loan modification (hereinafter the January 2013 proposed loan modification). A judgment was thereafter entered, among other things, in favor of the defendant and against the plaintiffs dismissing the complaint insofar as asserted against the defendant. The plaintiffs appeal.

In reviewing a determination made after a nonjury trial, this Court's power is as broad at that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case that the trial court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Bank of Am., N.A. v. Bloom, 202 A.D.3d 736, 737, 162 N.Y.S.3d 136 ). "Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired" ( Oakdale III, LLC v. Deutsche Bank Natl. Trust Co., 189 A.D.3d 1685, 1686–1687, 138 N.Y.S.3d 139 ; see RPAPL 1501[4] ; Retemiah v. Bank of N.Y. Mellon, 195 A.D.3d 649, 650, 144 N.Y.S.3d 627 ). An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4] ). "[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" ( EMC Mtge. Corp. v. Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ). However, even where the holder of the note has elected to accelerate the mortgage debt, the holder "retains the right to revoke its election to accelerate ... provided that there is no change in the borrower's position in reliance thereon" ( Emigrant Bank v. McDonald, 197 A.D.3d 453, 454–455, 153 N.Y.S.3d 30 [internal quotation marks omitted]). "A lender may revoke its election to accelerate the mortgage ... by an affirmative act of revocation occurring during the six-year statute of limitations...