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QUESTION OF FACT WHETHER THE ACCELERATION OF THE DEBT IN 2010 WHEN THE FORECLOSURE ACTION WAS STARTED WAS REVOKED BEFORE THE SIX-YEAR STATUTE OF LIMITATIONS RAN OUT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff bank raised a question of the fact whether the acceleration of the debt at the time the foreclosure action was commenced in 2010 was revoked before the six-year statute of limitations ran out:

We nevertheless agree with plaintiff that its submissions in opposition to the motion raised a question of fact whether the present action was timely commenced. It is well settled that “[a] lender may revoke its election to accelerate the mortgage, [although] it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action” … .

Here, plaintiff submitted evidence that its predecessor in interest mailed letters to defendants in January 2016, i.e., before the statute of limitations expired, revoking the prior acceleration of the mortgage. As plaintiff correctly contends, the evidence, including an affidavit of mailing, established that the letters were properly mailed to defendants at their address, thereby giving rise to the presumption that the letters were received by defendants … . Defendants’ unsubstantiated denial of receipt was “insufficient to rebut the presumption of proper service at the address where all notices under the mortgage were to be sent” … . Moreover, on the limited record before us, we conclude that language of the letters and the surrounding circumstances raised a question of fact whether plaintiff’s predecessor in interest validly revoked the prior acceleration of the mortgage and, thus, whether the present action was timely commenced … . U.S. Bank N.A. v Brown, 2020 NY Slip Op 04653, Fourth Dept 8-20-20

 

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