Plaintiff may not maintain an action to foreclose the mortgage upon Defendants’ real property if the action is barred by the statute of limitations specified in CPLR 213(4). When a mortgage lender elects to accelerate a defaulted loan and declares the full principal balance immediately due and payable, then the six-year limitation period on a foreclosure action begins to run. See Lavin v. Elmakiss, 302 A.D.2d 638, 639, 754 N.Y.S.2d 741, 743 [3d Dept. 2003]; CPLR Section 213(4). As stated in Loiacono v. Goldberg,240 AD2d 476, 477 [2 Dept. 1997], “Once the mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire mortgage debt.” Loiacono v. Goldberg, 240 A.D.2d 476, 277 [2d Dept. 1977]; see Zinker v. Makler, 298 A.D.2d 516, 517 [2d. Dept. 2002]. The statute of limitations for an action to foreclose a mortgage is six years [CPLR 213(4)].
In accordance with well-settled case law, once a defendant has met his prima facie burden of proof that Plaintiff’s time to sue has expired, the burden now shifts to Plaintiff to aver evidentiary facts establishing that the action was timely commenced or falls within an exception to the statutory period. Assad v. City of New York, 238 A.D.2d 456 [2d Dept. 1997]; see also, Savarese v Shatz, 273 AD2d 219, 220 [2d Dept 2000].
Ordinarily, the Statute of Limitations on a mortgage loan would be six years. However, there are two ways in which the statute may be tolled. The first is found in General Obligations Law Section 17-101, where a signed written acknowledgment of an existing debt that contains nothing inconsistent with an intention on the part of the debtor to pay it will toll the Statute of Limitations and start it running anew. See Lew Morris Demolition Co. v. Board of Educ. of City of N.Y., 40 N.Y.2d 516, 520-521, 387 N.Y.S.2d 409, 411, 355 N.E.2d 369, 371; see, also, Connecticut Trust & Safe Deposit Co. v. Wead, 172 N.Y. 497, 500, 65 N.E. 261, 501; Curtiss-Wright Corp. v. Intercontinent Corp., 277 App.Div. 13, 16-17, 97 N.Y.S.2d 678, 680; Siegel, New York Practice, s 50). The second way to either toll or restart the statute of limitations was developed by the common law, and is based on a partial payment of the debt before or after the statute has expired. However, in order to toll the statute or start it running anew, it must be shown that the payment was of a portion of an admitted debt under circumstances amounting to a clearly demonstrated intention to pay the balance. See Crow v. Gleason, 141 N.Y. 489, 493, 36 N.E. 497, 498; Matter of Fitch, 270 App.Div. 227, 237-238, 58 N.Y.S.2d 833, 840. Bernstein v Kaplan, 67 AD2d 897, 898 [2d Dept 1979].
The fact that a homeowner listed a mortgage debt in his bankruptcy petition is not a promise to pay the debt. In fact, the Bankruptcy Court, in discharging the defendant, did not endorse any position other than the fact that the note or mortgage was his valid debts. Saini v Cinelli Enterprises Inc., 289 AD2d 770, 773 [3d Dept 2001].
R. A. Klass
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