Nationstar Mortg., LLC v. Krit

202 A.D.3d 1098

164 N.Y.S.3d 149

NATIONSTAR MORTGAGE, LLC, etc., respondent,

v.Chaker KRIT, etc., appellant, et al., defendants.

2018–11331

Index No. 135757/17

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

Submitted—November 23, 2021

February 23, 2022

Morris Fateha, Brooklyn, NY, for appellant.

Gross Polowy, LLC, Westbury, N.Y. (Stephen J. Vargas of counsel), for respondent.

COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendant Chaker Krit appeals from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated May 11, 2018. The order denied that defendant's motion pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In December 2017, the plaintiff commenced this action against, among others, the defendant Chaker Krit (hereinafter the defendant), inter alia, to foreclose a mortgage securing real property owned by the defendant in Staten Island (hereinafter the premises).

The plaintiff alleged that, in September 2006, the defendant executed a consolidated note in the amount of $362,000, which consolidated, among other things, a prior note in the amount of $164,000 previously entered into by the defendant which was secured by a mortgage on the premises (hereinafter the 2002 mortgage). The consolidated note also was secured by a mortgage on the premises (hereinafter the 2006 mortgage) which consolidated, among other things, the 2002 mortgage. The plaintiff alleged, inter alia, that a satisfaction of the 2002 mortgage was recorded in September 2007 through inadvertence and mistake and asserted, inter alia, a cause of action to vacate, cancel, and expunge that satisfaction of the 2002 mortgage. The plaintiff also alleged that, more than four years after the satisfaction of the 2002 mortgage was erroneously recorded, the defendant defaulted in making payments on the consolidated note. The plaintiff sought to foreclose the 2006 mortgage based on the defendant's failure to pay.

The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint contending, among other things, that the action was time-barred and that there was a recorded satisfaction of mortgage upon which he relied to his detriment. In an order dated May 11, 2018, the Supreme Court denied the motion. The defendant appeals.

A mortgage foreclosure action is subject to a six-year statute of limitations (see id § 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" ( Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540 ). Here, the defendant failed to show that the action is time-barred since he failed to demonstrate that the plaintiff had previously elected to accelerate the debt by an "unequivocal overt act" ( Freedom Mtge. Corp. v. Engel, 37 N.Y.3d 1, 22, 146 N.Y.S.3d 542, 169 N.E.3d 912 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. King, 193 A.D.3d 694, 695–696, 141 N.Y.S.3d 895 ).

The defendant also failed to show that the action should be dismissed based on the satisfaction of the 2002 mortgage that was recorded in 2007. The satisfaction of the 2002 mortgage submitted by the plaintiff in opposition to the motion makes no reference to the 2006 consolidated note underlying the 2006 mortgage at issue here; instead, it expressly refers to a 2002...