Kirschenbaum v. Wells Fargo Bank, N.A.

Summary

The Appellate Division, First Department reversed orders granting the plaintiff partial summary judgment and cancelling a mortgage held by Wells Fargo Bank, N.A. The court held that the default letter did not clearly and unequivocally accelerate the mortgage debt because it demanded payment of past-due amounts and described acceleration as a future event. The court granted Wells Fargo's cross motion for summary judgment and reinstated the mortgage.

Holdings

1. The default letter did not effectuate a clear and unequivocal acceleration of the debt because it did not demand immediate repayment of the entire outstanding loan balance and instead referred to acceleration as a future event.
2. The mortgage was not subject to discharge on the asserted statute-of-limitations ground because the default letter did not accelerate the debt.

Questions Presented

1. Whether the November 2, 2010 default letter constituted a clear and unequivocal acceleration of the mortgage debt.
2. Whether the mortgage should be discharged under RPAPL 1501(a)(4) based on expiration of the statute of limitations for foreclosure.
3. Whether summary judgment should have been granted to Wells Fargo and denied to plaintiff.

Disposition

reversed