Berger 3234 Holdings, LLC v RCS Recovery Servs., LLC, 2023 NY Slip Op 04567 [219 AD3d 1295]

September 13, 2023

Appellate Division, Second Department

[*1]

Berger 3234 Holdings, LLC, Respondent,

RCS Recovery Services, LLC, Appellant.

Hasbani & Light, P.C., New York, NY (Rafi Hasbani of counsel), for appellant.

In an action pursuant to RPAPL 1501 (4) to cancel and discharge of record a mortgage, the defendant appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated March 29, 2021. The order granted the plaintiff’s motion for summary judgment on the complaint.

Ordered that the order is affirmed, without costs or disbursements.

In August 2006, nonparty Kent Charles executed an equity reserve credit line agreement (hereinafter the agreement). Upon execution of the agreement, Charles drew down the entire credit line amount available to him of $428,650. According to the equity reserve initial advance authorization executed by Charles (hereinafter the authorization), he chose the five-year fixed-rate lock advance, which required the full amount borrowed to be repaid over a five-year period in 60 equal installments. The agreement was secured by a credit line mortgage encumbering real property located in Brooklyn. In 2013, Charles conveyed the property to the plaintiff, Berger 3234 Holdings, Inc. (hereinafter Berger). Thereafter, the mortgage was assigned to the defendant, RCS Recovery Services, LLC (hereinafter RCS).

In January 2019, Berger commenced this action against RCS to cancel and discharge of record the mortgage pursuant to RPAPL 1501 (4) on the ground that the statute of limitations had expired. In an order dated March 29, 2021, the Supreme Court granted Berger’s motion for summary judgment on the complaint. RCS appeals. We affirm.

“Pursuant to RPAPL 1501 (4), a person having an estate or interest in real property subject to a mortgage may maintain an action to secure the cancellation and discharge of the encumbrance, and to adjudge the estate or interest free of it, if the applicable statute of limitations for commencing a foreclosure action has expired” ( Knox v Countrywide Home Loans, Inc. , 205 AD3d 792 , 794 [2022]). “An action to foreclose a mortgage is subject to a six-year statute of limitations” ( JPMorgan Chase Bank, N.A. v Garcete , 203 AD3d 1149 , 1150 [2022] [internal quotation marks omitted]; see CPLR 213 [4]). “With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid, and the statute of limitations begins to run on the date each installment becomes due” ( U.S. Bank N.A. v O’Rourke , 209 AD3d 699 , 700 [2022] [internal quotation marks omitted]). “Once the entire amount of the debt becomes due, either by virtue of the terms of the mortgage or due to an acceleration of the debt, the statute of limitations begins to run on the entire debt” ( Wells Fargo Bank, N.A. v Breuer , 203 AD3d 1103 , 1106 [2022] [alterations and internal [*2] quotation marks omitted]).

Here, on its motion, Berger established that by the terms of the agreement and the authorization, the final payment on the mortgage loan was due five years from the date the first payment was due. Since the first payment was due in 2006, the final payment was due five years later in 2011, which is when the statute of limitations on that payment began to run. The statute of limitations expired six years later in 2017 ( see Zinker v Makler , 298 AD2d 516, 517 [2002]; Notarnicola v Lafayette Farms , 288 AD2d 198, 199 [2001]). In opposition, RCS failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted Berger’s motion for summary judgment on the complaint. Barros, J.P., Chambers, Warhit and Taylor, JJ., concur.

[Prior Case History: 2021 NY Slip Op 31020(U).].