You are here: / / A PROPOSED LOAN MODIFICATION DID NOT REVOKE THE ACCELERATION OF THE MORTGAGE...
, ,

A PROPOSED LOAN MODIFICATION DID NOT REVOKE THE ACCELERATION OF THE MORTGAGE DEBT BY THE COMMENCEMENT OF THE FORECLOSURE PROCEEDINGS; THEREFORE THE FORECLOSURE ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action had not revoked the acceleration of the mortgage debt and the action was therefore time-barred:

… [I]t is undisputed that the mortgage debt was accelerated on February 20, 2008, by the commencement of the 2008 foreclosure action … . Thus, absent an affirmative act of revocation during the ensuing six-year period, the statute of limitations to commence a new action to foreclose the mortgage debt expired on February 20, 2014 (see CPLR 213[4]). Contrary to the finding of the Supreme Court, the January 2013 proposed loan modification did not constitute an affirmative act of revocation sufficient to de-accelerate the mortgage debt. Not only did the January 2013 proposed loan modification fail to clearly and unequivocally indicate that the acceleration was being revoked and the loan was returned to installment status, but it was contingent on the Gardners’ [plaintiffs’] acceptance of the proposed loan modification as well as their successful completion of a trial period, neither of which occurred … . Moreover, contrary to the defendant’s contention, it failed to establish that the plaintiffs are barred from obtaining a judgment in their favor under the doctrine of unclean hands … . Gardner v Wells Fargo Bank N.A.., 2023 NY Slip Op 04304, Second Dept 8-16-23

Practice Point: Commencing a foreclosure action accelerates the debt and starts the statute of limitations. The acceleration can be explicitly revoked to stop the running of the statute. But the bank’s offering a loan modification is not an explicit revocation.

 

You might also like
Prosecutor Acted as an Unsworn Witness and Improperly Suggested Defendant Committed Offenses With Which He Was Not Charged—Conviction Reversed in the Interest of Justice
THE PLAINTIFF WAS PROPERLY ALLOWED TO FILE A LATE NOTICE OF CLAIM ASSERTING A NEW CAUSE OF ACTION, ALTHOUGH THE ORIGINAL NOTICE OF CLAIM DID NOT MENTION AN ALLEGEDLY MISSING STOP SIGN AS A BASIS FOR LIABILITY, THE MISSING STOP SIGN WAS MENTIONED IN THE POLICE REPORT WHICH WAS ATTACHED TO THE ORIGINAL NOTICE OF CLAIM (SECOND DEPT).
Supreme Court Should Not Have Reformed Settlement Agreement/Criteria for “Mutual Mistake” Not Met
SECOND DEPT ASKED FOR FURTHER SUBMISSIONS TO DETERMINE WHETHER PLAINTIFF BROUGHT A FRIVOLOUS APPEAL (SECOND DEPT).
“Temporary Substitute Vehicle” Not Excluded from Supplemental Uninsured/Underinsured Motorist Policy
“Lack of Standing” Defense Waived by Not Asserting It In the Answer—“Lack of Standing” Not a Jurisdictional Defect—Sua Sponte Dismissal for “Lack of Standing” Not Warranted
In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​
ALTHOUGH THE JURY WAS PROPERLY INSTRUCTED TO ACQUIT ON ALL COUNTS IF THE JUSTIFICATION DEFENSE APPLIED, THE VERDICT SHEET DID NOT MENTION THE JUSTIFICATION DEFENSE WHICH MAY HAVE GIVEN THE JURY THE IMPRESSION THE JUSTIFICATION DEFENSE SHOULD BE CONSIDERED SEPARATELY FOR EACH COUNT, CONVICTION REVERSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

WHERE A COMPLAINT IS DISMISSED WITHOUT A MOTION ON NOTICE, AN APPEAL IS NOT... PETITIONER WAS NOT REQUIRED TO PROVE THE SON ACTUALLY SEXUALLY ABUSED THE DAUGHTER...