6/2018 3134 PM 2SBOCA-GMPAX -> 16315090969 Page 2 of 6 AtaTerm of the Supreme Court of the State of New York held in and for the County of Nassau, 100 Supreme Court Drive, “Mineola, New York, on the 8* day of February 2018 PRESENT: HON, JULIANNE T. CAPHTOLA ive of the Supreme Court a eX U.S. BANK NATIONAT, ASSOCIATION, AS DECISION AND ORDER TRUSTEE SUCCESS IN INTEREST TOBANK = _ ON MOTION OF AMERICA NATIONAL ASSOCIATION, AS Index No: 60691 1/2017 ‘YRUSTEE BY SUCCESSOR BY MERGER TO —_—_—Motion Seq: 002, 003 LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR MERRILL LYNCH MORTGAGE, INVESTORS TRUST MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2006-MLNI, Plaintiff, ~ against ~ BERNICE 380 CORP.; GREGORIO PEREZ A/K/A GREGORIO A. PEREZ; BELKIS PEREZ A/K/A BELKIS RK. PEREZ; GENBRAL SENTRY EARLY. WARNING SYSTEMS, “JOHN DOE #1” through “JOLIN DOE, #12" ote., Defendants, ‘The following papers were read on the instant motions: Defendant Bernice 380's Notice of Motion and Supporting Documents and Memorandum of Law Plaintiffs Affirmation in Opposition and Supporting Documents Defendant Bemice 380's Reply Affirmation Dofendunt Bernice 380 Cotp. (hereinafter referred to as “Movanf") has moved by notice of motion for a order pursuant to CPLR §3212 granting them summary judgment and dismissal of the complaint. Maintiff opposed the motion and Movant replied. The motion was deemed submitted on January 30, 2018. “The underlying action seeks to foreclose on a mortgage given to Defendants Gregorio Petez.and Belkis Petoz (hereinafter “Defendants Perez”) ot or about June 27, 2006. The subject mortgage loan was transferred to Plaintiff’ on or before January 1, 2007. Defendants Perez defaulted on the terms of the mortgage on June 1, 2008 and a prior foreclosure action was conunenced by Plaintiff's predecessor trusice on or about1/2010 3434 PH ‘2SBOCA-OHFAK -> 16215890969 Page 3 of 6 February 16, 2009 (hereinafter the “2009 Foreclosure Action") under Index #273 1/2009. ‘The 2009 Foreclosure Action was dismissed on or before Junuary 10,2013 and, pursuant 10 stipulation between the parties, the notice of pendency filed in conjunction therewith was withdrawn, Defendants Perez sold, ansfeered and conveyed ownership of the subject property te Movant in August 2016, Plaintiff commenced this action on or about July 14, 2017. Movant argues that, inasmuch as the 2009 Foreclosure Action served to accelerate.the ‘debt, and the acceleration was never affirmatively revoked aad the mortgage reinstated, the statute of limitations has expired and the Plaintiff has no enforceable mortgage as a result tant motion. First they claim that acccleration with regard to the'2009 Foreclosure Action would not have taken place until the issuance of a judgment of foreclosure and sale, which was not entered on the prior action prior to its dismissal and therefore the debt was never actually accelerated, Plaintiff cites a Suffolk County Supreme Court decision fiom The Llonorable ‘Thomas, ‘Whelan dated April 3, 2017 in support of their argument, wherein the Court stated, in relevant part, “Under the express wording of the mortgage document, plaintiff has no right 10 reject the borrower's payment of arrears in order to reinstate the mortgage, until a judgment is entered. Pursuant to paragraph 19(c), sot forth above, the lender cannot reject a payment that would reinstate the Mortgage and crate the maturity of the debt by requiring payment in full until after". judgment has been entered.” Under the contract terms at issuc, plaintiil does not have a legal right to require payment in full with the simple filing of a foreclosure action. The borrower could pay the unpaid installments and the payment of sume would destroy the option to accelerate, which clearly states ‘that immediate payment in full could only be declared upon the entry of a Judgment. Until the option to declare the entire debt due is effectively exercised, the borrower has the right to tender the payments then duc and make good on his or her defaults. Hero, itis a judgment that triggers the acceleration in full of the entire mortgage debt”. Nationstam Mortg., LLC, MacPhersor, 56 Mise.3d 339 (Sup, Ct, Suff, Cty, 2017). Plaintiff makes three arguments in opposition to the i Plaintif? fails to address the Hilany of controlling case law emanating from the Appellate Division Second Departinent which flatly rejected that opinion with respoet to mortgages containing identical language to the instant mortysge,g/2028 3434 Pet 25BOCA-GwEAK -> 16915890949 Page 4 of 6 ‘The Appellate Division Second Department reiterated in NMNT Realty, the well- settled proposition that: “RPAPL 1501 (4) provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of anaction to foreclose a mortgage . . . has expired,” any person with an esate of interest in the property may maintain an avtion “to secure the cancellation and discharge of record of such encumbrance, and to adjudgo the estate or interest of the plaintifY in such real property to be free therefrom” (RPAPT. 1501 [4f; see JBR Constr. Coip. v Staples, 71 AD3d 952, 953 [2010]). An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR. 213 [4]; Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986 [2016]; Nationstar Mtge., LLC v Weisblum, 143 AL3d 866, 867 [2016]: Wells fargo Bank, N.A.-v Burke, 94 AD3d 980, 982 [20121). “ ‘[E]venif'a morigage is payable in installments, once a mortgage debt is accelerated, the entire amount is due, and the Statute of Limitations begins to run on the entire dcbt’ “ (Nationstar Mige., LLC v Weisblum, 143 AD3d at 867, quoting EMC Mige. Corp. v Patella, 279 AD2d 604, 605 [2001}; see Wells Fargo Bank, N.A. v Burke, 94 AD&d at 982), A lender may revoke its election to accelerate the mortgage, but il must do so by'an affirmative act of revocation ocourring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action (see IMC Mtge: Corp. v Patella, 279 AD2d at 606)". NMNT Realty Corp. v Knoxville 2012 Trust, 151 A.D.3d 1068, 2d. Dept. June 28, 2017). ‘The same holding was made less than two weeks prior to the instant order in Deutsche Bank National Trust Company v, Adrian wherein the Appellate Division Second Department repeated that, “A mortgage foreclosure action is subject to a six-ycar statute of limitations (see CPLR 213(4); NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068, 1069, 58 N.Y.S.3d 118). “[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is duc, and the Statute of Limitations begins to run oa the entire debt” (Netionstar Mige., LEC v, Weisblum, 143 A.D.3d 866, 867, 39 N.Y.S.3d 491 [internal ‘quotation marks omitted]; see Wells Fargo Bank,N.A. v. Burke, 94 A.D.3d 980, 982, 943 N.Y.S.2d 540; EMC Mige. Corp. v, Patella, 279 A.D.2d 604, 605, 720 N.Y.S.2d 161). Acceleration ovours, inter alia, by the commencement of a foreclosure action (see Fannic Mac v. 133 Mgt, LLC, 126 A.D.3d 670, 670, 2 N.Y.8.3d 361; Clayton Natl. v. Guldi, 307 A.D.24je/z0ne 3434 PH 25BOCA-GNPAX -> 16515890969 Page 5 0f 6 982, 982, 763 N.Y.S.2d 493). “A lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring, during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action” (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d at 1069-1070, 58 N.¥.S.3d 118; see HMC Mtge. Corp. v. Patella, 279 A.D.2d at 606, 720 N.Y.8.2d. 161)”. 2018 WL 635941, 2018 N.Y. Slip Op, 00543 (2d. Dept. January 31, 2018). All of these cases stand for the proposition that, though a mortgage lender retains its ‘right to revoke un acceleration of a mortgage, the mortgage debt may still bo effectively aecelerated through the commencement of @ foreclosure action, as was the case here, and the issuance of a judgment of foreclosure is not necessary to effectuate aeceleration. Further, these cases reiterate the fact that, if'a mortgage lender opts to exercise their right {io revoke the acceleration, it must do so by an affirmative act of revocation. Plaintif¥ further argues that the stipulation between the parties constituted an affirmative uct of revocation and cites NMNT Realty, supra in support of their argument. However, the {nots in NMNT Realty differ from those in the instant matter. In NMNT Realty, the plaintit® moved for, and was granted, an order that discontinued the forcelosure action, canceled the notice of pendency, and vacated the judgment of foreclosure and sale it hed beon granted. In the instant matter, the entirety of the stipulation entered into between the patties states: “IT IS HEREBY STIPULATED AND AGREED by the: {a) attorney for the plaintiff, {&) attomey(s) for all defendants who have appeared or answered including those who have watived all notices; (@) any defendants who have been served with process and have not appeared but whose time to do so has expired; and (d) any defendants who have appeared in person; ‘That the notice of pendency of action filed int the Nassau County Clerk's Office on February 17, 2009, be cancelled and discharged of record” ‘There is no mention whatsoever of the acceleration of the mortgage debt, or the revocation thereof, nor docs the stipulation contain any language regarding the actual 2009 Foreclosure Action, but only the notice of pendency, Further, the affirmation from counsel for the plaintiff therein that is annexed to the stipulation states “This affirmation is made pursuant to CPLR §6514(d) for the purposes of cancellation of the notice of pendency of action referred to in the Stipulation Cancelling Lis Pendens annexed hereto . .. The Court has dismissed the2018 3436 PH 2SBOCA-GMPAK -> 16915890949 complaint without prejudice and without costs pursuant to CPLR Section 3215 (@)”. CPLR §3215( c) states, in relevant part, “If the plaintiff fails to take proceedings for the entry of judgment within one year after the defiuilt, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed”. Accordingly, inasmuch as the affirmation of counsel for plaintiff therein thereby concedes that the 2009 Foreclosure Action was dismissed, not voluntarily withdrawn, their reference to NMNT Realty is misplaced and their argument that the stipulation constituted a deceleration is without merit, Finally, Plaintifl argues that the ttensfer of the property by the borrowers re-set the stutute of limitations clock as it constituted a new ground for acceleration pursuant to the terms of the mottgage, however, inasmuch as the debt had already been accelerated and never affirmatively deecleraied, Plaintiff would not have had the option to essentially re- accelerate that which was alrcady accelerated and payment was called due in full. At the time of the transfer there was nothing Ieft to accelerate as the entirety of the debt was due as of the filing of the 2009 Foreclosure Action. Accordingly, it is hereby: ORDERED, that the Defendant Bernice 380 Corp.'s motion is hereby granted in its entirety. The complaint filed under Index #160691 1/2017 is hereby dismissed. Defendant Bernive 380 Corp. shall serve a copy of this order upon all parties within ton (10) days of their receipt hereof, This constitutes the decision and order of the Court. ENTER a pared: 2/8/19 . HON. JULIANNE T. CAPETOLA Page 6 ots