FEDERAL NATIONAL MORTGAGE ASSOCIATION v. HOLLENDER (2026)

DECISION & ORDER

In an action to foreclose a mortgage, nonparty U.S. Bank Trust, N.A., appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated April 24, 2023.  The order, insofar as appealed from, granted the motion of the defendants Jacob Hollender and Frieda Hollender, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred, and denied those branches of the plaintiff's cross-motion which were for summary judgment on the complaint insofar as asserted against those defendants, to dismiss their affirmative defenses, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On April 8, 2005, the defendant Jacob Hollender (hereinafter Jacob) executed a note in favor of BNY Mortgage Company, LLC (hereinafter BNY), which was secured by a mortgage on certain real property located in Brooklyn.  The mortgage was signed by Jacob and the defendant Frieda Hollender (hereinafter together the defendants).

On April 6, 2009, Citimortgage, Inc. (hereinafter Citimortgage), BNY's purported successor in interest, commenced an action to foreclose the mortgage against the defendants, among others (hereinafter the 2009 action), in which Citimortgage elected to call due the entire amount secured by the mortgage.  The complaint in the 2009 action was dismissed on August 7, 2014.

In separate letters purportedly mailed on April 3, 2015, Seterus, Inc., the loan servicer at the time, informed the defendants that “[t]he maturity of the Loan is hereby de-accelerated, immediate payment of all sums owed is hereby withdrawn and the Loan is re-instated as an installment loan.”

On July 12, 2018, the plaintiff, Citimortgage's purported successor in interest, commenced the instant action to foreclose the mortgage against the defendants, among others.  In their answer, the defendants alleged, among other things, that the action was time-barred.

Thereafter, the defendants moved, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred.  The plaintiff opposed the defendants' motion and cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to dismiss their affirmative defenses, and for an order of reference.  In an order dated April 24, 2023, the Supreme Court, among other things, granted the defendants' motion and denied those branches of the plaintiff's cross-motion.  Nonparty U.S. Bank Trust, N.A. (hereinafter the appellant), as purported successor in interest to the plaintiff, appeals.

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” (Bank of N.Y. Mellon v. Mor, 201 AD3d 691, 694;  see U.S. Bank, N.A. v. Connor, 204 AD3d 861, 862–863).  The entire mortgage debt will be deemed to have been accelerated by, as relevant here, the commencement of a mortgage foreclosure action in which the complaint sought payment of the full outstanding loan balance (see U.S. Bank, N.A. v. Connor, 204 AD3d at 863).

Here, the mortgage debt was first accelerated, and the statute of limitations began to run, in April 2009, when the plaintiff's predecessor in interest commenced the 2009 action, in which it elected to call due the entire amount secured by the mortgage (see U.S. Bank N.A. v. Ford, 208 AD3d 1199, 1201).  Contrary to the appellant's contention, pursuant to CPLR 203, as amended by the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821, § 8 [eff Dec. 30, 2022] ), the unilateral de-acceleration letters purportedly mailed to the defendants failed to revive or reset the statute of limitations (see CPLR 203[h];  Anglestone Real Estate Venture Partners Corp. v Bank of N.Y. Mellon, 221 AD3d 943, 946–947).  Since more than six years have elapsed since the mortgage debt was first accelerated, the Supreme Court properly determined that the instant action was time-barred.

The appellant's contentions challenging FAPA's retroactive application and constitutionality are without merit (see Van Dyke v. U.S. Bank, N.A., 45 NY3d 461;  Article 13 LLC v. Ponce De Leon Fed. Bank, 45 NY3d 441;  Wilmington Sav. Fund Socy., FSB v Lozowski, 245 AD3d 986;  Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1069–1071).

Accordingly, the Supreme Court properly granted the defendants' motion, in effect, for summary judgment dismissing the complaint insofar as asserted against them as time-barred, and properly denied those branches of the plaintiff's cross-motion which were for summary judgment on the complaint insofar as asserted against the defendants, to dismiss their affirmative defenses, and for an order of reference.

The parties' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

IANNACCI, J.P., WOOTEN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.