U.S. Bank Nat'l Ass'n v. Vitolo

182 A.D.3d 627

120 N.Y.S.3d 791 (Mem)

U.S. BANK NATIONAL ASSOCIATION, etc., Respondent,

v.Norma VITOLO, Appellant, et al., Defendants.

2018–11647

Index No. 135762/16

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

Argued—January 14, 2020

April 29, 2020

Crawford Bringslid Vander Neut, LLP, Staten Island, N.Y. (Allyn J. Crawford of counsel), for appellant.

Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Joseph B. Teig of counsel), for respondent.

JOHN M. LEVENTHAL, J.P. JOSEPH J. MALTESE COLLEEN D. DUFFY LINDA CHRISTOPHER, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In 2005, the defendant Norma Vitolo obtained from First Central Savings Bank a loan, which was secured by a mortgage on residential property located in Staten Island. Vitolo allegedly defaulted on her monthly mortgage payments beginning in December 2008.

By letter dated January 25, 2009, Vitolo received a default notice on her mortgage, which stated that "[u]nless the payments on your loan can be brought current by February 24, 2009, it will become necessary to accelerate your Mortgage Note." The letter further stated that Vitolo's failure to pay the delinquent amount "will result in the acceleration of your Mortgage Note," and that "[i]f funds are not received by the above stated date, we will proceed to automatically accelerate your loan."

In May 2009, the plaintiff, U.S. Bank National Association (hereinafter U.S. Bank), commenced an action to foreclose the mortgage. The complaint in that action was dismissed on January 11, 2016, due to U.S. Bank's lack of standing. In August 2016, Vitolo commenced an action pursuant to RPAPL 1501(4) to cancel and discharge the mortgage. That action is the subject of a related appeal (see Vitolo v. U.S. Bank N.A. , 182 A.D.3d 630, 120 N.Y.S.3d 833 [decided herewith] ).

In September 2016, U.S. Bank commenced the instant action to foreclose the mortgage. In October 2016, Vitolo moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her on the ground that the action was barred by the applicable statute of limitations. The Supreme Court denied the motion, and Vitolo appeals. We affirm.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations has expired, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" ( Wells Fargo Bank, N.A. v. Eitani , 148 A.D.3d 193, 197, 47 N.Y.S.3d 80 ). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( Barry v. Cadman Towers, Inc. , 136 A.D.3d 951, 952, 25 N.Y.S.3d 342 ).

Actions to foreclose a mortgage are governed by a six-year statute of limitations (see CPLR 213[4] ; Milone v. U.S. Bank N.A. , 164 A.D.3d 145, 151, 83 N.Y.S.3d 524 ; Wells Fargo Bank, N.A. v. Eitani , 148 A.D.3d at 197, 47 N.Y.S.3d 80 ). " ‘The law is well settled that, even 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’ " ( Kashipour v Wilmington Sav. Fund Socy., FSB , 144 A.D.3d 985, 986, 41 N.Y.S.3d 738, quoting EMC Mtge. Corp. v. Patella , 279 A.D.2d 604, 605, 720 N.Y.S.2d 161 ).

Where, as here, the acceleration of the maturity of a mortgage debt is made optional with the holder of the note and mortgage, "some affirmative action must be taken evidencing the holder's election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation" ( Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d 980, 982–983, 943 N.Y.S.2d 540 ; see U.S. Bank N.A. v. Gordon , 158 A.D.3d 832, 835, 72 N.Y.S.3d 156 ). "To be effective, the acceleration notice to the borrower must be clear and unequivocal" ( Milone v. U.S. Bank N.A. , 164 A.D.3d at 152, 83 N.Y.S.3d 524 ; see Wells Fargo Bank, N.A. v. Burke , 94 A.D.3d at 983, 943 N.Y.S.2d 540 ; Sarva v. Chakravorty , 34 A.D.3d 438, 439, 826 N.Y.S.2d 74 ). A "letter discussing acceleration as a possible future event ... does not constitute an exercise of the mortgage's optional acceleration clause" ( 21st Mtge....