The Fourth Department, reversing Supreme Court, determined the bank which purportedly accelerated the debt was not a holder or assignee of the mortgage and did not own or hold the note. Therefore the debt was not accelerated. Plaintiff bank was entitled to the unpaid installments which accrued during the 6-year (and 90 day) period before the action was commenced:
Where, as here, a mortgage is payable in installments, separate causes of action accrue for each unpaid installment, and the six-year statute of limitations begins to run on the date that each installment becomes due… . If, however, the mortgage holder accelerates the entire debt by a demand, the six-year statute of limitations begins to run on the entire debt… .
Here, defendants’ own submissions in support of the motion establish that, although another entity purported to accelerate defendants’ entire debt in 2010 and 2012, that entity was not the holder or assignee of the mortgage and did not hold or own the note. Thus, the entity’s purported attempts to accelerate the entire debt were a nullity, and the six-year statute of limitations did not begin to run on the entire debt … . Although this mortgage foreclosure action therefore is not time-barred, we note that, “in the event that the plaintiff prevails in this action, its recovery is limited to only those unpaid installments which accrued within the six-year [and 90-day] period immediately preceding its commencement of this action” … . Wilmington Sav. Fund Socy., FSB v Gustafson, 2018 NY Slip Op 02954, Fourth Dept 4-27-18
FORECLOSURE (BANK WHICH PURPORTEDLY ACCELERATED THE DEBT DID NOT HAVE STANDING TO DO SO, PLAINTIFF BANK ENTITLED ONLY TO THE UNPAID INSTALLMENTS WHICH ACCRUED DURING THE SIX YEARS PRIOR TO COMMENCING THE ACTION (FOURTH DEPT))