Wilmington Sav. Fund Soc'y, FSB v. Iqbal

195 A.D.3d 772

145 N.Y.S.3d 372 (Mem)

WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., appellant,

v.Mohammed IQBAL, et al., respondents, et al., defendants.

2018–12665

Index No. 702547/17

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

Submitted—April 8, 2021

June 9, 2021

Maynard, Cooper & Gale, P.C., New York, N.Y. (Brandt P. Hill of counsel), for appellant.

HECTOR D. LASALLE, P.J., MARK C. DILLON, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Leslie J. Purificacion, J.), dated July 31, 2018. The order granted the motion of the defendants Mohammed Iqbal and Parveen A. Iqbal for summary judgment dismissing the complaint insofar as asserted against them and on their counterclaim to cancel and discharge of record the mortgage, and, in effect, denied, as academic, the plaintiff's cross motion for summary judgment on the complaint insofar as asserted against those defendants, to strike their answer, and to appoint a referee to calculate the amount due to the plaintiff.

ORDERED that the order is reversed, on the law, with costs, the motion of the defendants Mohammed Iqbal and Parveen A. Iqbal for summary judgment dismissing the complaint insofar as asserted against them and on their counterclaim to cancel and discharge of record the mortgage is denied, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of the plaintiff's cross motion for summary judgment on the complaint insofar as asserted against those defendants, to strike their answer, and to appoint a referee to calculate the amount due to the plaintiff.

In 2010, nonparty BAC Home Loans Servicing, LP (hereinafter BAC Home Loans), the plaintiff's predecessor in interest, commenced an action to foreclose a mortgage given by the defendants Mohammed Iqbal and Parveen A. Iqbal (hereinafter together the defendants). After the defendants interposed an answer, BAC Home Loans moved to voluntarily discontinue the action. On January 4, 2016, the Supreme Court granted the unopposed motion and discontinued the action.

In 2017, the plaintiff commenced the instant foreclosure action. Following service of their answer, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them and on their counterclaim to cancel and discharge of record the mortgage, contending that the action was time-barred. The plaintiff opposed the motion and cross moved for summary judgment on the complaint insofar as asserted against those defendants, to strike their answer, and to appoint a referee to calculate the amount due to the plaintiff. In an order dated July 31, 2018, the Supreme Court granted the defendants' motion and, in effect, denied, as academic, the plaintiff's cross motion. The plaintiff appeals.

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4] ). Separate causes of action accrue for each unpaid installment, and the statute of limitations begins to run on the date each installment becomes due (see U.S. Bank N.A. v. Joseph, 159 A.D.3d 968, 970, 73 N.Y.S.3d 238 ). Once a mortgage debt is accelerated, however, the statute of limitations begins to run on the entire debt (see Milone v. U.S. Bank N.A., 164 A.D.3d 145, 151, 83 N.Y.S.3d 524 ; U.S. Bank N.A. v. Joseph, 159 A.D.3d at 970, 73 N.Y.S.3d 238 ). Acceleration occurs, among other things, by "the filing of a verified complaint seeking foreclosure and containing a sworn statement that the noteholder is demanding repayment of the entire outstanding debt" ( Freedom Mtge. Corp. v. Engel, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 N.Y. Slip Op. 01090, *2 ; see Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 476, 180 N.E. 176 ; Wells Fargo Bank, N.A. v. Hussain, 186 A.D.3d 1459, 1462, 131 N.Y.S.3d 695 ). A lender's revocation of its election to accelerate the mortgage can be accomplished by an "affirmative act" of the noteholder within six years of the election to accelerate ( Freedom Mtge. Corp. v. Engel, ––– N.Y.3d at ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 N.Y. Slip Op. 01090, *4 [internal quotation marks omitted], citing NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068, 1069, 58 N.Y.S.3d 118 ). "...