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ONCE PLAINTIFF ACCELERATED THE DEBT BY COMMENCING FORECLOSURE DEFENDANTS COULD EXERCISE THE RIGHT TO REDEEM THE MORTGAGE WITHOUT TRIGGERING A CONTRACTUAL PREPAYMENT PENALTY (FOURTH DEPT).

The Fourth Department determined Supreme Court properly ruled defendants could exercise their right of redemption in this foreclosure action without triggering the plaintiff’s contractual right to withhold consent to prepayment:

… [D]efendants were not seeking to prepay the amount due under the note, rather plaintiff accelerated the remaining amount due by instituting a foreclosure action and sending the demand letter.

We … reject plaintiff’s contention that he is entitled to the remaining amount due on the note, including all unaccrued interest payments. It is well settled that, once a foreclosure proceeding is commenced, “[a] mortgagor or other owner of the equity of redemption of a property subject to a judgment of foreclosure and sale may redeem the mortgage at any time prior to the foreclosure sale” … . “An unconditional tender of the full amount due is all that is required” to exercise the right of redemption … . Thus, defendants’ tender of payment of the entire mortgage principal and the accrued interest was all that was required “in response to [plaintiff’s] acceleration of the debt upon default [and, as noted,] did not constitute a ‘prepayment’ of the debt within the meaning of the prepayment clause set forth in the mortgage” … . Inasmuch as “the accelerated payment here is the result of plaintiff[-]mortgagee[] having elected to bring this foreclosure action, [he] may not exact a prepayment penalty” … . Virkler v V.S. Virkler & Son, Inc., 2021 NY Slip Op 04434, Fourth Dept 7-16-21

 

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