DIJI v. DEUTSCHE BANK NATIONAL TRUST COMPANY

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

Augustine DIJI, Respondent, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant.

2017–02343

Decided: November 06, 2019

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ. Blank Rome, LLP, New York, N.Y. (Timothy W. Salter and Diana M. Eng of counsel), for appellant. Augustine Diji, Brooklyn, NY, respondent pro se.

DECISION & ORDER

In an action, inter alia, to cancel and discharge of record a mortgage, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated January 11, 2017. The order denied the defendant's motion for summary judgment dismissing the complaint and, upon searching the record, awarded the plaintiff summary judgment on the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff commenced this action to cancel and discharge of record a mortgage, and for related relief, alleging that the statute of limitations had expired. The defendant moved for summary judgment dismissing the complaint, and the plaintiff opposed the motion. The Supreme Court denied the defendant's motion and, upon searching the record, awarded the plaintiff summary judgment on the complaint. The defendant appeals.

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, provided that the mortgagee or its successor was not in possession of the subject real property at the time the action to cancel and discharge the mortgage was commenced (see Lubonty v. U.S. Bank N.A., 159 A.D.3d 962, 74 N.Y.S.3d 279, lv granted 32 N.Y.3d 903, 2018 WL 4355016). An action to foreclose a mortgage is subject to 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; see Lubonty v. U.S. Bank N.A., 159 A.D.3d at 963, 74 N.Y.S.3d 279; 53 PL Realty, LLC v. U.S. Bank N.A., 153 A.D.3d 894, 895, 61 N.Y.S.3d 120).

“Where the holder of the note elects to accelerate the mortgage debt, notice to the borrower must be ‘clear and unequivocal’ ” (Nationstar Mtge., LLC v. Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491, quoting Sarva v. Chakravorty, 34 A.D.3d 438, 439, 826 N.Y.S.2d 74; see Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540). “An acceleration of a mortgage debt may occur in different ways. One way is in the form of an acceleration notice transmitted to the borrower by the creditor or the creditor's servicer” (Milone v. U.S. Bank N.A., 164 A.D.3d 145, 152, 83 N.Y.S.3d 524). “[Another] form of acceleration exists when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due” (id. at 152, 83 N.Y.S.3d 524). “[A]n acceleration of a mortgaged debt, by either written notice or the commencement of an action, is only valid if the party making the acceleration had standing at that time to do so” (id. at 153, 83 N.Y.S.3d 524; see U.S. Bank N.A. v. Gordon, 158 A.D.3d 832, 836, 72 N.Y.S.3d 156; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 983–984, 943 N.Y.S.2d 540; EMC Mtge. Corp. v. Suarez, 49 A.D.3d 592, 593, 852 N.Y.S.2d 791).

Here, the defendant demonstrated, prima facie, that the debt was never validly accelerated, as prior actions to foreclose the subject mortgage, commenced in 2007 and 2009, were dismissed upon determinations that the plaintiff in those actions lacked standing (see MLB Sub I, LLC v. Grimes, 170 A.D.3d 992, 96 N.Y.S.3d 594; 21st Mtge. Corp. v. Adames, 153 A.D.3d 474, 475, 60 N.Y.S.3d 198; Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d at 983, 943 N.Y.S.2d 540; EMC Mtge. Corp. v. Suarez, 49 A.D.3d at 593, 852 N.Y.S.2d 791). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint, and should not have, upon searching the record, awarded the plaintiff summary judgment on the complaint.

MASTRO, J.P., MALTESE, CONNOLLY and IANNACCI, JJ., concur.

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