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THE ACCELERATION OF THE MORTGAGE DEBT UPON FILING A PRIOR FORECLOSURE ACTION WAS A NULLITY BECAUSE THE ACTION WAS DISMISSED FOR LACK OF STANDING; THE INSTANT ACTION IS THEREFORE TIMELY BUT ONLY WITH RESPECT TO THE INSTALLMENT PAYMENTS DUE DURING THE SIX YEARS PRIOR TO THE FILING OF THE INSTANT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the prior foreclosure action which was dismissed for lack of standing did not accelerate the debt. Therefore the instant action is timely but only as to the installment payments due during the six years before the action was brought:

The instant action is the third mortgage foreclosure action commenced with respect to this loan. The first mortgage foreclosure action was commenced in or about July 2010, and was dismissed in December 2012, for lack of standing. A second mortgage foreclosure action was commenced on or about January 23, 2015, and was dismissed due to a mistake in the caption of the action. The instant action was thereafter commenced in October 2016 … . …

A mortgage foreclosure action is governed by a six-year statute of limitations (see CPLR 213[4]). Where a mortgage is payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due … . Once a mortgage debt is accelerated, however, the statute of limitations begins to run on the entire debt … .

The first action to foreclose the mortgage, which purportedly accelerated the mortgage debt, was initiated in or about July 2010. However, that action was dismissed for lack of standing, and therefore, the alleged acceleration was a nullity … . Accordingly, the instant action is timely, but only with respect to those installments that accrued within six years of the date of commencement of the instant action … . Therefore, the plaintiff’s recovery may not include any installments that became due more than six years prior to the commencement of the action, and the amount due must be recalculated to reflect that fact. Deutsche Bank Natl. Trust Co. v Limtcher, 2021 NY Slip Op 02134,  Second Dept 4-7-21

 

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