Opinion
11561 11561A Index 850034/15 850294/17
05-28-2020
WELLS FARGO BANK, N.A., etc., Plaintiff-Appellant, v. Donna FERRATO, Defendant-Respondent, The Simon & Mills Building Condominium Board, et al., Defendants. Wells Fargo Bank, N.A., etc., Plaintiff-Respondent, v. Donna Ferrato, Defendant-Appellant, Capital One Bank (USA) N.A., et al., Defendants.
Greenberg Traurig, LLP, New York (Brian Pantaleo of counsel), for appellant/respondent. Wrobel Markham LLP, New York (M. Katherine Sherman of counsel), for respondent/appellant.
Greenberg Traurig, LLP, New York (Brian Pantaleo of counsel), for appellant/respondent.
Wrobel Markham LLP, New York (M. Katherine Sherman of counsel), for respondent/appellant.
Friedman J.P., Gische, Webber, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Judith N. McMahon, J.), entered March 6, 2018, which, to the extent appealed from, denied plaintiff Wells Fargo Bank's motion to revoke acceleration of a mortgage loan made to defendant, unanimously affirmed, with costs. Order, same court and Justice, entered August 7, 2018, which denied defendant's motion to dismiss plaintiff's foreclosure action on the basis of CPLR 3211(a)(4) and CPLR 3211(a)(5), unanimously reversed, with costs, on the law, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff Wells Fargo Bank failed to affirmatively revoke the acceleration of defendant's mortgage debt, as mere voluntary discontinuance of a foreclosure action is insufficient, in itself, to constitute an affirmative act of revocation (see Wells Fargo Bank, N.A. v. Liburd, 176 A.D.3d 464, 464, 107 N.Y.S.3d 858 [1st Dept. 2019] ; see also HSBC Bank USA v. Kirschenbaum, 159 A.D.3d 506, 507, 73 N.Y.S.3d 41 [1st Dept. 2018] ). Wells Fargo admitted that its primary reason for revoking acceleration of the mortgage debt was to avoid the statute of limitations bar, and it proceeded to collect on the accelerated loan amount in a fifth foreclosure action filed shortly after it made its motion to revoke acceleration (see Vargas v. Deutsche Bank Natl. Trust Co., 168 A.D.3d 630, 93 N.Y.S.3d 32 [1st Dept. 2019], lv granted 34 N.Y.3d 910, 2020 WL 772997 [2020] ).
Moreover, Wells Fargo's fifth foreclosure action, commenced on or around December 11, 2017, is time-barred, as Wells Fargo had accelerated the mortgage debt when it commenced its second foreclosure action on September 16, 2009 ( CPLR 213[4] ; see CDR Cre´ances S.A. v. Euro–American Lodging Corp., 43 A.D.3d 45, 51, 837 N.Y.S.2d 33 [1st Dept. 2007] ). The fact that the prior foreclosure actions were dismissed does not undo Wells Fargo's act of accelerating the mortgage debt.
We have considered the remaining arguments and find them unavailing.