Home Savings of America, FSB v. Isaacson

• Decision Date: 23 June 1997
• Parties: HOME SAVINGS OF AMERICA, FSB, Respondent, v. Joyce ISAACSON, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 94

659 N.Y.S.2d 94

240 A.D.2d 633

HOME SAVINGS OF AMERICA, FSB, Respondent, v. Joyce ISAACSON, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

June 23, 1997.

Debra S. Bereck, New City, for appellants.

Kurzman & Eisenberg, LLP, White Plains (Jack S. Older, of counsel), for respondent.

Before MILLER, J.P., and SULLIVAN, JOY and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to foreclose a mortgage, the defendants Joyce Isaacson and David Isaacson appeal from an order of the Supreme Court, Rockland County (Bergerman, J.) dated April 3, 1996, which granted the plaintiff's motion to renew their prior motion for summary judgment and, upon renewal, granted the motion.

ORDERED that the order is affirmed, with costs.

Contrary to the appellants' contentions, in response to the plaintiff's prima facie showing of entitlement to summary judgment, the appellants failed to demonstrate the existence of any genuine issues of fact in support of their claimed affirmative defense of tender and payment. " 'As a general rule, a tender must include everything to which the creditor is entitled, including interest to the time the tender is made, or else it is not legally effective' " (National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, 77, 582 N.Y.S.2d 523, quoting 83 N.Y. Jur. 2d, Payment and Tender § 151, at 38). A valid tender requires an actual proffer of all mortgage arrears (see, Bank of N.Y. v. Midland Ave. Dev., 193 A.D.2d 641, 597 N.Y.S.2d 458). The tender of arrears will cure a default only prior to notice of acceleration (Dime Sav. Bank of N.Y. v. Dooley, 84 A.D.2d 804, 444 N.Y.S.2d 148; see also, Dime Sav. Bank of N.Y. v. Glavey, 214 A.D.2d 419, 625 N.Y.S.2d 181, cert. denied 517 U.S. 1221, 116 S.Ct. 1849, 134 L.Ed.2d 950).

"The law is clear that when a mortgagor defaults on loan payments, even if only for a day, a mortgagee may accelerate the loan, require that the balance be tendered or commence foreclosure proceedings, and equity will not intervene" (New York Guardian Mortgagee Corp. v. Olexa, 176 A.D.2d 399, 401, 574 N.Y.S.2d 107). Once a default has been declared and a loan's maturity has been accelerated, a mortgagee is not required to accept a tender of less than full repayment as demanded (see, Albertina Realty Co. v. Rosbro Realty Corp., 258 N.Y. 472, 180 N.E. 176; Albany Sav. Bank v. Seventy-Nine Columbia St., 197 A.D.2d 816, 603 N.Y.S.2d 72). Once a loan has been accelerated, a...