Supreme Court, Queens County, October 19, 2018

Petroff Amshen LLP, Brooklyn (Christopher Villanti of counsel), for plaintiff.

Stern & Eisenberg, P.C., Depew (Anthony Paul Scali of counsel), for U.S. Bank National, defendant.

The plaintiff, Beata Persaud, commenced this action, pursuant to RPAPL 1501 (4), to cancel an encumbrance with respect to property located at 94-43 113th Street, Richmond Hill, Queens County, 11419. Specifically, the plaintiff seeks an order granting summary judgment under CPLR 3212, and for an order discharging the consolidated mortgage, which is currently recorded with the Queens County Clerk, and extinguishing the underlying promissory note that was executed in connection with that property. Inasmuch as issue has been joined in this case, the plaintiff's motion is timely within the meaning of Brill v City of New York (2 NY3d 648 [2004]). The defendant, U.S. Bank National Association (U.S. Bank), opposes the instant application. The plaintiff's motion is granted in all respects. The following opinion constitutes the decision and order of this court.

The court finds that the plaintiff has met her prima facie burden of showing her entitlement to judgment as a matter of law by establishing that the underlying foreclosure actions commenced by U.S. Bank in December 2009 and, again, in March 2011, were dismissed by two different justices of this court and that the commencement of this new foreclosure action on [*2]July 21, 2017, would be time-barred by the applicable six-year statute of limitations.^[FN*] (See CPLR 213 [4]; see also JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]; JBR Constr. Corp. v Staples, 71 AD3d 952, 953 [2d Dept 2010]; Pulver v Dougherty, 58 AD3d 978 [3d Dept 2009]; Plaia v Safonte, 45 AD3d 747 [2d Dept 2007]; LePore v Shaheen, 32 AD3d 1330 [4th Dept 2006]; Zinker v Makler, 298 AD2d 516 [2d Dept 2002]; compare Caliguri v JPMorgan Chase{**62 Misc 3d at 195} Bank, N.A., 121 AD3d 1030 [2d Dept 2014], with Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 13 n 3 [2008]; see Mr. Villanti's cogent moving and reply affirmations.) The burden then shifted to the defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing. (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Kosson v Algaze, 84 NY2d 1019 [1995].) As explained in this opinion, the defendant, U.S. Bank, has failed to rebut that prima facie showing. (See Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005].) Where no material issues of fact exist, a court shall grant a moving party summary judgment. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

To begin, pursuant to RPAPL 1501 (4), a mortgagee is entitled to have a mortgage cancelled as an encumbrance on real property if "the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired." Thus, for purposes of RPAPL 1501 (4), the statute of limitations has expired. The defendant U.S. Bank failed to meet its burden, in its opposition papers, of raising a triable issue of fact that the statute of limitations has either been tolled or revived. Given that the statute of limitations has expired on the defendant's right to bring another foreclosure action against the plaintiff, the motion to cancel, discharge and remove the consolidated mortgage that the defendant, U.S. Bank, holds on Persaud's property is granted.

In reaching this decision, the court first concludes that the language of paragraph 19 of the consolidated mortgage is irrelevant in this matter. (See discussion in para 11 of Mr. Villanti's reply affirmation.) Second, this court disagrees with the decision relied upon by the defendant in Nationstar Mtge., LLC v MacPherson (56 Misc 3d 339 [Sup Ct, Suffolk County 2017]). MacPherson is contrary to Appellate Division, Second Department precedents in Beneficial Homeowner Serv. Corp. v Tovar (150 AD3d 657 [2d Dept 2017]) and Ward v Walkley (143 AD2d 415, 417 [2d Dept 1988]). In Beneficial Homeowner Serv. Corp. v Tovar, a decision issued after MacPherson, the Appellate Division ruled that commencement of a mortgage foreclosure proceeding constituted a valid election to accelerate the maturity of a debt. (See 839 Cliffside Ave. LLC v Deutsche Bank Natl. Trust Co. for First Franklin Mtge. Loan Trust 2006-FF3, Mtge. Pass-Through Certificates, Series 2006-FF3, 2018 WL{**62 Misc 3d at 196} 4259867, *6, 2018 US Dist LEXIS 151030, *16-17 [ED NY, Sept. 5, 2018, No. 15-CV-4516 (SIL)].)

This court recognizes that, in MacPherson, that court, interpreting a virtually identical provision in a mortgage note, held that "[u]nder the express wording of the mortgage document, [the lender] has no right to reject the borrower's payment of arrears in order to reinstate the [*3]mortgage . . . [and] . . . it is a [foreclosure] judgment that triggers the acceleration in full of the entire mortgage debt." (Nationstar Mtge., LLC v MacPherson, 56 Misc 3d at 351.) As noted above, U.S. Bank has twice initiated foreclosure proceedings against the plaintiff in an attempt to accelerate the debt. Both times, two different justices of this court dismissed those actions. The defendant, relying on MacPherson, contends that it has the right to file a foreclosure action at a time when the statute of limitations has clearly expired and that the plaintiff has no recourse under section 1501 (4).

The court disagrees with this interpretation. As an initial matter, the reliance by the court in MacPherson on the Second Department's decision in Wells Fargo Bank, N.A. v Cohen is misplaced. (See Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753 [2d Dept 2011].) In Cohen, the bank never filed a prior foreclosure action and there was no other affirmative act by the lender evincing an intent to accelerate the entire debt. Under these circumstances, and, in the absence of language in the mortgage note that "the entire debt represented by the mortgage was to be automatically accelerated upon the borrower's default in an installment payment," the statute of limitations had not been triggered. (Id. at 754.) In this case, however, by filing the two foreclosure actions against the plaintiff, first in December 2009 and then in March 2011, the defendant has twice elected to accelerate the mortgage debt. Thus, the six-year statute contained in CPLR 213 (4) expired by the time U.S. Bank filed the third foreclosure action against the plaintiff on July 21, 2017.

In addition, there is a significant degree of difference between the ability of a lender to prevail in a mortgage foreclosure action brought to accelerate a mortgage debt as opposed to the right of such lender to elect to accelerate the debt by filing such a lawsuit. In this case, the defendant affirmatively elected to accelerate the entire debt by filing the foreclosure action. (See Beneficial Homeowner Serv. Corp. v Tovar, 150 AD3d at 657; see also Ward v Walkley, 143 AD2d at 417.) Certainly, paragraph 19 of the consolidated mortgage was not an obstacle{**62 Misc 3d at 197} to U.S. Bank's right to file a lawsuit to accelerate the debt owed to it.

In the court's view, the subject language simply provides borrowers with the opportunity to avoid foreclosure. It cannot be reasonably interpreted as empowering a lender with the ability of avoiding the protection afforded to borrowers by RPAPL 1501 (4). As noted, the mortgage note, in no way, limited U.S. Bank's ability to elect to accelerate the instant debt. The provision simply prevented the defendant from succeeding on its election to accelerate. In that respect, paragraph 19 imposed heavy hurdles on the plaintiff before she could prevent the defendant from foreclosing on her property. Given this important distinction, the court finds that there is no reason to give paragraph 19 the strained interpretation proposed by U.S. Bank.

The court further finds that the language contained in paragraph 19 is too ambiguous to support the interpretation that only a foreclosure judgment can trigger the acceleration in full of the entire mortgage debt. It is well-settled that ambiguous terms in contracts are to be construed against the drafter, which, in this case, is the defendant. (See Village of Ilion v County of Herkimer, 23 NY3d 812 [2014].) If the defendant intended to circumvent the legal principle that the filing of a foreclosure action constitutes an affirmative election to accelerate mortgage debt, then it should have made it clear and obvious that this was the intended effect of this provision.

In closing, the court notes that the election to accelerate the debt is what triggers the [*4]running of the statute of limitations. That election should not be confused with the rights of the borrower under paragraph 19 to stop the foreclosure or with the ultimate ability of the lender to foreclose successfully on the property. Here, by filing the two lawsuits, the defendant affirmatively elected to accelerate the instant mortgage. (See Beneficial Homeowner Serv. Corp. v Tovar, 150 AD3d at 657; see also Ward v Walkley, 143 AD2d at 417.) Although "[a] lender may revoke its election to accelerate the mortgage, . . . 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." (Soroush v Citimortgage, Inc., 161 AD3d 1124, 1125-1126 [2d Dept 2018] [citations omitted].) Here, U.S. Bank neither argued nor presented any evidence that it revoked its election during that six-year period. (See Beneficial Homeowner Serv. Corp. v Tovar.) The language{**62 Misc 3d at 198} provided in paragraph 19 of the consolidated mortgage, moreover, does not constitute such a revocation.

For these reasons, the court grants the instant motion by the plaintiff to cancel or discharge the mortgage that the defendant holds on her property. (See RPAPL 1501 [4].)