MORTGAGE FORECLOSURE - FOLLOWING THE NEW RULES ON REVOCATION OF ACCELERATION OF DEBT

DEUTSCHE BANK NATL. TRUST CO. v. Weininger, 2022 NY Slip Op 22033 - Westchester Supreme Court 2022:

"In support of its motion to renew, the plaintiffs argue that since this Court's March 10, 2020 Decision and Order, the Court of Appeals has reversed and abrogated precedent and then controlling law relied on by this Court. In short, the Court of Appeals held that "where acceleration occurred by virtue of the filing of a complaint in a foreclosure action, the noteholder's voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder." (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 32 [2021]; contra Ditech Fin., LLC v Naidu, 175 AD3d 1387 [2d Dept 2019]).

Here, as previously held and as is undisputed, the filing of the first foreclosure action in October 2010 accelerated the mortgage debt and the statute of limitations began to run (see EMC Mtge. Corp v Patella, 279 AD2d 604 [2001]). The plaintiff moved to discontinue the first foreclosure action, and an order was entered on August 5, 2016 granting the motion (Scheinkman, J.) within the six-year time period. As there is no evidence of an express, contemporaneous statement to the contrary by the noteholder, the plaintiff's voluntary discontinuance of the first foreclosure action is an affirmative act of revocation of the acceleration as a matter of law (Freedom Mtge. Corp., 37 NY3d 1). The plaintiff's reason for discontinuing the 2010 action is not relevant (id. at 36 ["A noteholder's motivation for exercising a contractual right is generally irrelevant"]). Even if plaintiff's second foreclosure action, commenced in 2015, accelerated the debt, the commencement of this action on March 24, 2017, was timely."