A predecessor in interest of the plaintiff gave a mortgage on real property in favor of a predecessor in interest of defendant ResCap Liquidating Trust. An action to foreclose the subject mortgage was commenced in 2005. A separate action to foreclose the subject mortgage was commenced in 2008. The 2008 action was discontinued by stipulation, that same year, based on the pendency of the 2005 action. Ultimately, in the 2005 action, a predecessor in interest of the plaintiff was awarded summary judgment dismissing the amended complaint insofar as asserted against him, without prejudice, based on lack of standing.
In 2016, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record certain mortgages, including the subject mortgage. The plaintiffs moved for summary judgment on the first cause of action seeking to cancel and discharge of record the subject mortgage. The defendant cross-moved for summary judgment dismissing the amended complaint.
RPAPL 1501(4) provides, in part, that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage … has expired,” any person with an estate or interest in the property may maintain an action to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom.’ An action to foreclose a mortgage is subject to a six-year statute of limitations. 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.
The plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage by demonstrating that more than six years had passed since the subject mortgage was accelerated by commencement of the 2008 action.
The defendant failed to raise a triable issue of fact in opposition. the stipulation discontinuing the 2008 action did not, in itself, constitute an affirmative act to revoke the acceleration since the stipulation was silent on the issue of revocation of the election to accelerate and did not otherwise indicate that installment payments would be accepted.