Real Property Law

Supreme Ct., Westchester Cty.

(Lubell, J.)

In mortgagor's action for a declaration that enforcement of a mortgage had become barred by the statute of limitations, mortgagee moved to dismiss the complaint based on documentary evidence. Supreme Court denied the motion, holding that neither of the documents mortgagee submitted conclusively refuted mortgagor's claim that the statute of limitations barred enforcement.

Mortgagee accelerated mortgagor's obligation to pay the note when mortgagee brought a foreclosure action on July 28, 2009. On Aug. 4, 2010, mortgagor submitted a hardship affidavit in connection with an application to participate in the Home Affordable Modification Program (HAMP). The affidavit acknowledged the debt to mortgagee. Then, on July 8, 2015, mortgagee sent a letter to mortgagor revoking its election to accelerate mortgagor's loan. Mortgagor subsequently brought this RPAPL Article 15 action, contending that mortgagee's failure to enforce the mortgage for a six-year period beginning with the acceleration of the mortgage rendered the mortgage unenforceable. Mortgagee moved to dismiss, relying on the hardship affidavit and the revocation of the election to accelerate.

In denying mortgagee's motion, the court first held that the letter revoking the acceleration did not constitute documentary evidence within the meaning of CPLR 3211(a). The court then turned to the hardship affidavit, and concluded that the affidavit did qualify as documentary evidence within the meaning of the CPLR, but then held that mortgagor's acknowledgment of the debt was nothing more than a conditional promise to pay if mortgagor were approved for a loan modification and agreed to the terms of the modification. As a result, the court could not conclude from the affidavit when mortgagee's claim on the mortgage re-accrued for statute of limitations purposes.

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