You are here: / / THE NOTICE SENT TO THE BORROWERS IN 2012 WAS NOT SUFFICIENT TO ACCELERATE...
,

THE NOTICE SENT TO THE BORROWERS IN 2012 WAS NOT SUFFICIENT TO ACCELERATE THE MORTGAGE DEBT; THEREFORE THE FORECLOSURE COMPLAINT WAS PROPERLY DISMISSED (SECOND DEPT). ​

The Second Department determined the notice sent to the defendants was not sufficient to accelerate the mortgage debt and, therefore, the debt had not been accelerated at the time this foreclosure action was brought: Supreme Court properly dismissed the foreclosure complaint:

\… [T]he defendants’ submissions in support of that branch of their cross motion which was for summary judgment dismissing the complaint demonstrated that the loan matured in 2038 and that the defendants had not commenced a prior foreclosure action. The defendants also submitted a copy of the 2012 notice, which did not demand the entire outstanding balance on the loan, but, as the Supreme Court found, only demanded the amount due as of that date. Notably, the 2012 notice stated that if the plaintiffs were unable to pay the arrears, there were “various options that may be available . . . to prevent a foreclosure sale of [the] property” such as a repayment plan, loan modification, sale of the property, or deeding the property to the noteholder. Thus, the 2012 notice did not set forth the defendants’ clear and unequivocal election to accelerate the debt, but instead, was a letter discussing acceleration as a possible future event … . Accordingly, the defendants established, prima facie, that the consolidated mortgage had not been accelerated at the time the plaintiffs commenced this action.

In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs’ contention, the plain meaning of the word “may” as it appears in paragraph 22 of the consolidated mortgage renders that provision optional, and “[w]here, as here, the acceleration of the maturity of a mortgage debt is made optional with the holder of the note and mortgage, ‘some affirmative action must be taken evidencing the holder’s election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation'” … . Knox v Countrywide Home Loans, Inc., 2022 NY Slip Op 03107, Second Dept 5-11-22

Practice Point: Here the notice sent by the bank to the borrowers in 2012 did not unambiguously accelerate the debt within the meaning of the mortgage document. Therefore the foreclosure complaint was properly dismissed.

 

You might also like
UNDER THE FACTS, ERROR TO ALLOW EVIDENCE OF DEFENDANT’S FACEBOOK COMMENT AND GANG AFFILIATION AS SANDOVAL EVIDENCE.
THE 20-YEAR DURATION OF REGISTRATION AND VERIFICATION OF A LEVEL ONE SEX OFFENDER STARTS ANEW WHEN THE OFFENDER, ALREADY REGISTERED IN ANOTHER STATE, MOVES TO NEW YORK AND NOTIFIES THE DIVISION OF CRIMINAL JUSTICE SERVICES (SECOND DEPT).
MANUFACTURER OF A TUBE SLIDE AND THE PROPERTY OWNER WHERE THE TUBE SLIDE WAS LOCATED ENTITLED TO SUMMARY JUDGMENT; INFANT PLAINTIFF FELL WHEN CLIMBING ON THE OUTSIDE OF THE TUBE SLIDE.
ALTHOUGH DEFENDANTS MISSED THE DEADLINE AND THEREBY WAIVED THE RIGHT TO MEDICAL EXAMINATIONS OF PLAINTIFF, THE MOTION TO STRIKE THE NOTE OF ISSUE AND COMPEL AN EXAM SHOUD HAVE BEEN GRANTED (SECOND DEPT).
Action Abandoned, Should Not Have Been Restored
PROOF OF POSSESSION OF THE NOTE WHEN THE ACTION WAS COMMENCED WAS HEARSAY; PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).
“Conclusory” Affidavit Submitted In Support of Motion to Dismiss for Failure to State a Cause of Action Did Not Demonstrate the Allegation Defendants Were Directly Liable for Negligent Maintenance of a Taxi Cab Was “Not a Fact At All”—Analytical Criteria Explained
INABILITY TO AGREE ON CHILD’S RELIGIOUS TRAINING CONSTITUTED A CHANGE IN CIRCUMSTANCES WARRANTING THE AWARD OF SOLE CUSTODY TO MOTHER (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

PLAINTIFF DID NOT DEMONSTRATE THE GRAVES AMENDMENT, WHICH RELIEVES THE OWNER... THE “ABANDONMENT” EVIDENCE WAS NOT SUFFICIENT; MOTHER’S PARENTAL...