The First Department determined there was a question of fact whether the discontinuance of a prior foreclosure action de-accelerated the mortgage. If the mortgage was not de-accelerated the instant action would be time-barred:
Acceleration only takes place when the holder of the note and mortgage takes “affirmative action . . . evidencing the holder’s election” to do so … . This may be accomplished in the form of a notice to the borrower … . Affirmative action can also occur when the first foreclosure action is commenced … . The prior foreclosure action sought the accelerated mortgage amount.
There is an issue of fact in this particular case regarding whether plaintiff’s discontinuance of the prior foreclosure action de-accelerated the mortgage … . We note that neither the motion seeking discontinuance or the order entered granting that relief provided that the mortgage was de-accelerated or that plaintiff would now be accepting installment payments from the defendant … . U.S. Bank N.A. v Charles, 2019 NY Slip Op 04997, First Dept 6-20-19