New York Guardian Mortgagee Corp. v. Olexa

• Decision Date: 12 September 1991
• Citation: 574 N.Y.S.2d 107,176 A.D.2d 399
• Parties: NEW YORK GUARDIAN MORTGAGEE CORPORATION, Respondent, v. Michael OLEXA et al., Defendants, and Laurel Olexa, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 107

574 N.Y.S.2d 107

176 A.D.2d 399

NEW YORK GUARDIAN MORTGAGEE CORPORATION, Respondent, v. Michael OLEXA et al., Defendants and Laurel Olexa, Appellant.

Supreme Court, Appellate Division Third Department.

Sept. 12, 1991.

Patricia L. Ellison, Kingston, for appellant.

Fayer & Greenberger (Russell A. Fayer, of counsel), Hempstead, for respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, LEVINE and CREW, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court (Bradley, J.), entered December 14, 1990 in Ulster County, which, inter alia, granted plaintiff's motion for summary judgment against defendant Laurel Olexa.

The question presented on this appeal is whether defendant Laurel Olexa (hereinafter Olexa) has asserted valid defenses and raised factual issues requiring resolution by a jury in this action to foreclose a mortgage on Olexa's real property. In our view the question should be answered in the affirmative. Supreme Court's order should, therefore, be modified by reversing so much thereof as granted plaintiff's motion for summary judgment against Olexa.

Olexa and her husband, defendant Michael Olexa, gave a mortgage in the sum of $48,550 on their real property in the Town of Olive, Ulster County. The monthly payments were approximately $500. The mortgage was subsequently assigned to plaintiff. Olexa's husband left the family in 1985 and Olexa fell behind in the payments. Plaintiff agreed to give Olexa time to make up missed payments and plaintiff made several payments. However, by the summer of 1987, Olexa was two months in arrears and plaintiff notified her that she was in default and that it would commence foreclosure proceedings if she did not pay all arrears by certified check within 30 days. After Olexa requested that plaintiff reconsider, plaintiff sent Olexa a letter, dated October 14, 1987, agreeing to permit her to repay the arrears according to a "stipulation plan". Olexa was to make a down payment of $1,866.49 by October 30, 1987 followed by six monthly installments of $1,038.07. Four checks totaling $2,149 were returned to Olexa in the letter dated October 30, 1987 explaining that "they must be certified for such a large payment".

Affidavits submitted by Olexa state that she made payments in attempted compliance with the "stipulation plan". By letter dated November 21, 1987, plaintiff returned these payments for lack of certification but then gave Olexa more time to resubmit the checks returned once they were certified. By letter dated December 10, 1987, plaintiff returned a payment check in the amount of $1,866.49, declaring that Olexa had "broken the terms of our payment agreement" and advising that "[its] attorney ha[d] been instructed to proceed with foreclosure". This foreclosure action was commenced by substituted service on Olexa's son at her residence on December 30, 1987.

In August 1988, Olexa's attorney learned that a default judgment had been entered in the foreclosure action. Olexa moved by order to show cause to, inter alia, vacate the default judgment. Supreme Court granted the motion and allowed her to respond to the complaint. After issue was joined plaintiff moved for summary judgment against Olexa. Olexa cross-moved to dismiss the complaint. The court, among other things, granted plaintiff's motion and denied Olexa's cross motion. This appeal by Olexa ensued.

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 (see, Graf v. Hope Bldg. Corp., 254 N.Y. 1, 171 N.E. 884; Hudson City Sav. Inst. v. Burton, 88 A.D.2d 728, 451 N.Y.S.2d 855). Nevertheless, a motion for summary judgment should be denied where the mortgagor...