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THE LETTER SENT TO THE BORROWER BY THE BANK IN THIS FORECLOSURE ACTION DID NOT EXPLICITLY INDICATE THE DEBT WAS BEING IMMEDIATELY ACCELERATED; THEREFORE THE DEBT HAD NOT BEEN ACCELERATED AND THE FORECLOSURE ACTION WAS NOT TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the letter sent by the bank to the borrower in this foreclosure action did not accelerate the debt and therefore did not trigger the six-year statute of limitations:

… [A] ” ‘letter discussing acceleration as a possible future event, . . . does not constitute an exercise of the mortgage’s optional acceleration clause'” …  “The determinative question is not what the noteholder intended or the borrower perceived, but whether the contractual election was effectively invoked” … . Here, a letter sent to the defendants … , did not effectively accelerate the mortgage debt, as this letter merely discussed acceleration as a possible future event … . HSBC Bank USA v Pantel, 2022 NY Slip Op 04954, Second Dept 8-17-22

Practice Point: A letter from the bank to the borrower which discussed the acceleration of the mortgage debt but did not indicate the debt was in fact accelerated did not trigger the six-year statute of limitations on the foreclosure action. The foreclosure action was not, therefore, time-barred.

 

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