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TWO VOLUNTARY DISCONTINUANCES OF TWO SUCCESSIVE FORECLOSURE ACTIONS TWICE REVOKED THE ACCELERATION OF THE DEBT RENDERING THE THIRD FORECLOSURE ACTION TIMELY (FIRST DEPT).

The First Department, reversing Supreme Court based upon the February, 2021 Court of Appeals ruling, determined two voluntary discontinuances of two successive foreclosure actions twice revoked the acceleration of the debt, rending the third foreclosure action timely:

… [O]n February 18, 2021, the Court of Appeals issued its decision in Freedom Mtge. Corp v Engel, — NY3d —, 2021 NY Slip Op 01090 (2021), holding, inter alia, that “where acceleration occurred by virtue of the filing of a complaint in a foreclosure action, the noteholder’s voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder” (Freedom Mtge., at *6). Thus, contrary to defendants’ argument, the September 2013 voluntary discontinuance of the 2009 first foreclosure action did constitute an “affirmative act,” within six years, thereby revoking the prior election to accelerate. A second foreclosure action was commenced in October 2013 and discontinued in September 2017. To the extent there is a question surrounding plaintiff’s reason for discontinuing the second foreclosure action and whether that reason constituted a “contemporaneous statement” that they were not seeking to de-accelerate the debt, it does not change the fact that the third foreclosure action is timely because it was commenced within six years of the date of acceleration, which was October 2013. U.S. Bank Trust, N.A. v Boktor, 2021 NY Slip Op 02124, First Dept 4-6-21

 

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