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PLAINTIFF BANK NEVER REVOKED THE ACCELERATION OF THE MORTGAGE DEBT; FIFTH FORECLOSURE ACTION TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no evidence plaintiff bank revoked the acceleration of the mortgage debt and the foreclosure action was therefore time-barred:

Plaintiff Wells Fargo Bank failed to affirmatively revoke the acceleration of defendant’s mortgage debt, as mere voluntary discontinuance of a foreclosure action is insufficient, in itself, to constitute an affirmative act of revocation … . Wells Fargo admitted that its primary reason for revoking acceleration of the mortgage debt was to avoid the statute of limitations bar, and it proceeded to collect on the accelerated loan amount in a fifth foreclosure action filed shortly after it made its motion to revoke acceleration … .

Moreover, Wells Fargo’s fifth foreclosure action, commenced on or around December 11, 2017, is time-barred, as Wells Fargo had accelerated the mortgage debt when it commenced its second foreclosure action on September 16, 2009 (CPLR 213[4] …). The fact that the prior foreclosure actions were dismissed does not undo Wells Fargo’s act of accelerating the mortgage debt. Wells Fargo Bank, N.A. v Ferrato, 2020 NY Slip Op 03067, First Dept 5-28-20

 

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