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THE BANK’S DISCONTINUANCE OF THE FORECLOSURE ACTION DID NOT REVOKE THE ACCELERATION OF THE DEBT; THE REQUEST, AFTER DISCONTINUANCE, FOR A DECLARATION THE ACCELERATION HAD BEEN REVOKED WAS A REQUEST FOR AN IMPERMISSIBLE ADVISORY OPINION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the acceleration of the debt had not been revoked by the discontinuance of the foreclosure action and plaintiff’s request for a declaration the acceleration had been revoked, made after the action was discontinued, was an improper request for an advisory opinion:

Upon discontinuance of the action, a judicial declaration on the issue of whether the plaintiff elected to revoke its acceleration would be merely advisory inasmuch as there was no active case in which such declaration could have an immediate effect. Indeed, by seeking voluntary discontinuance of the action, the plaintiff, in effect, waived any right to seek any further judicial relief in the action … . …

In this Department, a lender’s mere act of voluntarily discontinuing an action does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt … . This is so because “the full balance of a mortgage debt cannot be sought without an acceleration, whereas the voluntary discontinuance of a foreclosure action may be occasioned for any number of different reasons, including those that have nothing to do with an intent to revoke the acceleration” … . Thus, it is the plaintiff who has authority to revoke its election to accelerate the mortgage debt under the terms of a note, and not the court. U.S. Bank Natl. Assn. v McCaffery, 2020 NY Slip Op 04805, Second Dept 8-26-20

 

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