Wilmington Trust v Welsh

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Wilmington Trust v Welsh 2019 NY Slip Op 33230(U) October 18, 2019 Supreme Court, Queens County Docket Number: 707439/2017 Judge: Joseph J. Esposito Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 10/22/2019 02:05 PM INDEX NO. 707439/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/22/2019 MEMORANDUM SUPREME COURT IA PART 6 QUEENS COUNTY WILMINGTON TRUST , NATIONAL X ASSOCIATION , NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE Of ARLP SECURITIZATION TRUST SERIES 2015-1 , Plaintiff , IN DEX NO . 707439/2017 MOTION SEQ . NO . 3 BY : - against - ESPOSITO , J . DATED : June 17 , 2019 SHAWNE TT G. WELSH , PATRICIA A . EDGAR , MARSHLYN WALTERS , JOHN DOE (Those unknown tenants , occupants , persons or corporations or their heirs , distributees , e x ecutors , administrators , trustees , gua rd ians , assignees , credito rs or successors cla iming an interest in the mortgaged premises . ) FILED OCT 2 2 20 19 COUNTY CLERK QUEENS COUNTY Defendants . x Plaintiff defendants Waters , 134 - 58 seeks a Shawnett mortg age G. by the known as Springfield Gardens , Welsh , given as record owners , of the subject real property , St r eet , Edgar , on Marshlyn 1 A. foreclose and 161 Patricia to New York , to secure a note , evidencing a loan in the principal amount of $450 , 968 . The plaintiff and underlying Waters alle ges that obligation defaulted it is and that under the the the terms holder of defendants of the note the mortgage Edgar , and Welsh mortg ag e and by failing to make the monthly installment payment due on July 1 , 2009 and as a consequence , it elected to accelerate the entire mortgage 1 of 6 [*FILED: 2] QUEENS COUNTY CLERK 10/22/2019 02:05 PM INDEX NO. 707439/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/22/2019 debt . On June 11 , 2010 , the p l aintiff ' s predecessor in interest commenced an action to foreclose the subject mortgage entitled BAC (Sup Ct , Queens County , Index No . Home Loans Servicing LP v Welsh , 14943/2010) . 2015 . That action was dismissed in an order dated March 4 , Plaintiff commenced this acti on by filing a copy of the summons and complaint wi th notice of pendency on or about May 31 , 2017 . The plaintiff t hen moved for summary judgment , caption and for an order of reference . to amend the The defendants Patricia A . Edga r and Iona Lettman s/h/a John Doe , cross moved to dismiss the complaint . The court granted the motion to dismiss finding that the action was limitations . brought after the expiration of the statute of The plaintiff has now moved to reargue the court ' s decisions and upon reargument to deny the cross moti on and to grant the motion for summary judgment , to amend the caption and an order of reference . It is within the court ' s reargument when it appears discretion that to gra n t a motion the court may have for " overlooked ce rtain facts and misapplied the law in its initial order " (Dunitz v J . L . M. Consultin g Corp ., 22 AD3d 455 , 456 [2d Dept 2005] ; Marini v Lombardo , 17 AD3d 545 [2d Dept 2005] ; CPLR 2221) . Here , the plaintiff has sho wn that the court overlooked that the plaintiff attached as an exhibit an affidavit of service for a deacceleration letter . In light of this , court will grant the motion to reargue . 2 of 6 [*FILED: 3] QUEENS COUNTY CLERK 10/22/2019 02:05 PM INDEX NO. 707439/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/22/2019 The court action . year turns first to the cross motion to dismiss the An action to foreclose a mortgage is governed by a six- statute of limitations (CPLR 213(4]) With respect to a mortgage payable in installments , separate causes of action accrue for each installment that is not paid and the statute of limitations begins to run on the date each installment becomes due (Wells Fargo Bank , N. A . v 80 Cohen , AD3d 753 [2d Loiacono v Goldberg , 240 AD2d 476 [2d Dept 1997]) Dept 2010] ; However , once a mortgage debt is accelerated the entire amount is due and the statute of limitations begins to Fargo Bank , N. A . v Burke , run on the entire debt 94 AD3d 980 [2d Dept 2012] ; Corp . v Patella , 279 AD2d 604 [2d Dept 2001]) . (Wells EMC Mtge . Where , as here , the acceleration of the debt is made optional to the holder of the note and mortgage , evidence the defendant some affirmative holder ' s has election established commencement of the first that act to must be accelerate the foreclosure loan six- years after the acceleration in the was in 11 , to The accelerated 2017 , the order debt . action on June This action was not commenced until May 31 , than taken by 2010 . which is more complaint . The defendants have , thus , made a prima facie showing that this action was not commenced within the six - year statute of limitations , which began to run upon the filing of the complaint in the 2010 action (see EMC Mtge . Corp . v Patella , 279 AD2d at 605) The burden shifts to plaintiff to raise a triable issue of fact as to whether the statute of limitations was tolled or is 3 of 6 [*FILED: 4] QUEENS COUNTY CLERK 10/22/2019 02:05 PM INDEX NO. 707439/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/22/2019 otherwise inapplicable or whether it actually commenced the action within the applicable limitations period (see Farage v Ehrenberg , 124 AD3d 1 59 [2 d Dept 2014) ; QK Healthcare , Inc . v InSource , Inc ., 108 AD3d 56 [2d Dept 20 1 3) ; 84 AD3d 1358 Hasps . Corp ., Williams v New York City Hea lth & [2d Dept 2011)) . The plaintiff argues that it revoked its acceleration by sending the defendant s a letter which rev oke d the accelerat ion . A lender may revoke its election to accelerate all sums due under an optional acceleration clause in a mortgage provided that there is no change in borrower ' s position in reliance thereon . This must be done by an affirmative act occurring within the statute of limitations period (EMC Mtge . Corp . v Patella , 279 AD2d at 606) . Here , the plaintiff has established that it revoked the acceleration within the six- year statute of limitations by sending a notice to the borrower dated June 10 , 2016 that affirmatively revoked the accelerat i on and made the monthly payments due again . The argument put forth by the defendant that the affidavit of service is not admissible because it was signed by an employee of the plaintiff ' s law firm is with out merit . The affidavit , was not an affidavit of mailing based upon a rev i ew of business records , but an actual mailed the affidavit letter . of The service by the fact that the person who actually mailing was sent by plaintiff ' s counsel on behalf of the servicer , does not make the affidavit of servicer inadmissible (see e . g ., Mendoza , 139 AD3d 898 [2d Dept 2016] ) . 4 of 6 Flagstar Bank FSB v Th erefore , the statute of [*FILED: 5] QUEENS COUNTY CLERK 10/22/2019 02:05 PM INDEX NO. 707439/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/22/2019 limitations does not bar this action . Turning next to the motion for summary judgment , the plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by submission of the mortgage , the note and proof of default . (See GRP Loan , LLC v Taylor , 95 AD3d 1172 [2d Dept 2012) ; Capstone Business 70 AD3d 882 Credit , LLC [2d Dept 2010] ; v Imperia Family Realty , LLC , EMC Mtge . Corp . v Riverdale Assoc . , 291 AD2d 370 [2d Dept 2002] . ) In opposition , the defendant failed to raise an issue of fact . The defendant raised the affirmative defense that the plaintiff did not comply with a contractual condition precedence and RPAPL 1304 . RPAPL 130 4 provides that with regard to a home loan at least ninety days before a lender begins foreclose on a mortgage , an action against a borrower to the lender must provide notice to the borrower that the loan is in default and his or her home is at risk (Aurora Loan Servs ., LLC v Weisblum , 85 AD3d 95 [2d Dept 2011]) . " (P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of the foreclosure action , and the plaintiff has satisfaction of this condition u at 107) . affidavit In the from its of establishing (Aurora Loan Servs . , LLC 85 AD3d support of its motion of mailing burden the plaintiff servicer . submitted an In her affidavit the af f iant discussed the standard business practice regarding mailing the RPAPL 1304 notices and stated that the RPAPL 1304 notices were mailed to defendant by both certified 5 of 6 and first-class mail . [*FILED: 6] QUEENS COUNTY CLERK 10/22/2019 02:05 PM INDEX NO. 707439/2017 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 10/22/2019 Additionally , the plaintiff ' s submissions included documents submitted pursuant to CPLR 4518 under the business record exception to the hearsay rule including a transaction report indicating the mailing of the letter by certified and first class , USPS tracking results and copies of the letters copies of the 1304 notices sent to the defendant. establish Wallach , The affidavit and documents were sufficient to compliance 163 AD3d with 520 LaPorte , 162 AD3d 784 RPAPL [2d Dept 1304 . 2018) ; (Citimortgage , Nationstar Mtge . , Inc . v LLC v [2d Dept 2018) ; Citimortgage, Inc . v Banks, 155 AD3d 936 [2d Dept 2017) ; HSBC Bank USA, N . A . v Ozcan , 154 AD3d 822 [2d Dept 2017)) .) without merit . The argument that the notice was improper is The notices that were sent were in compliance with RPAPL 1304 . Accordingly , the motion is granted and upon reargument the motion for summary judgme nt dismiss is denied . The referee to compute shall is granted and the cross motion to capt ion be is named amended as in the order propose d to be and a entered hereon . Settle Order ·tt, DATED : October I "I, 2019 J~Osrfo, FILED OCT 2 2 2019 COUNTI CLERK QUEENS COUNTI 6 of 6 J . S .C.

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