EMC MORTGAGE CORPORATION v. Patella

• Decision Date: 29 January 2001
• Citation: EMC MORTGAGE CORPORATION v. Patella, 279 A.D.2d 604, 720 N.Y.S.2d 161 (N.Y. App. Div. 2001)
• Court: New York Supreme Court — Appellate Division
• Parties: EMC MORTGAGE CORPORATION, Appellant-Respondent,<BR>v.<BR>THOMAS J. PATELLA, JR., et al., Respondents-Appellants, et al., Defendants.

279 A.D.2d 604

720 N.Y.S.2d 161

EMC MORTGAGE CORPORATION, Appellant-Respondent,

v.THOMAS J. PATELLA, JR., et al., Respondents-Appellants, et al., Defendants.

Decided January 29, 2001.

Bracken, Acting P.J., O'Brien, Santucci and Florio, JJ., concur.

Ordered that the cross appeal is dismissed; and it is further,

Ordered that the order is affirmed insofar as appealed from; and it is further Ordered that the defendants Thomas J. Patella, Jr., and Christine Patella are awarded one bill of costs payable by the plaintiff.

The original consolidated note and mortgage between the defendant mortgagors Thomas J. Patella, Jr., and Christine Patella (hereinafter the Patellas) and the mortgagee Dime Savings Bank of New York, FSB (hereinafter Dime) provided that the payment of the mortgage debt could be accelerated on default at Dime's option. Thereafter, when the Patellas allegedly defaulted, Dime indicated that it was exercising its option to call in the mortgage and demanded payment of the entire mortgage debt by letter to them dated August 20, 1992. Subsequently, by filing a summons and complaint, both dated September 14, 1992, Dime commenced a foreclosure action.

After an unsuccessful summary judgment motion, the Supreme Court, Westchester County, dismissed Dime's foreclosure action as a result of its failure to appear at a certification conference. Although Dime was provided with the opportunity to move to vacate its default, it failed to do so.

Thereafter, the mortgage went through a series of assignments, and ultimately, on March 21, 1997, it was assigned to the plaintiff. By letter dated February 26, 1998, the plaintiff notified the Patellas of its intention to commence foreclosure proceedings and demanded payment of the mortgage debt. Then, by the filing of a summons and complaint, both dated April 28, 1999, the plaintiff commenced the instant foreclosure action. The Patellas moved for summary judgment dismissing the complaint insofar as asserted against them on the ground, inter alia, that the action was time-barred, since the entire mortgage debt became due and payable upon their alleged default more than six years earlier.

The law is well settled that, even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt (see, Rols Capital Co. v Beeten, 264 AD2d 724; Loiacono v Goldberg, 240 AD2d 476, 477). As this Court stated in Federal Natl. Mtge....