Defendant 105 4th Units LLC brings this pre-answer motion to dismiss, on the grounds that the Statute of Limitations ran prior to the commencement of the action. For the reasons set forth herein, the motion is denied.

Defendant movant is the owner of a condominium apartment at 105 4th Avenue, 4F, a/k/a 4L, Brooklyn, New York pursuant to a bargain and sale deed dated November 15, 2006 from NB 105 4th Apts LLC, an entity that seems to have overlapping principals with 105 4th Units LLC. NB 105 4th Apts LLC took title, for seemingly real consideration, from Windsor Burke, the mortgagor, by deed dated June 29, 2006. Movant thus took title subject to the mortgage, with notice of it as well as the Notice of Pendency which had been filed previously, not to mention the [*2]foreclosure action that was then pending.Plaintiff is the assignee of a mortgage in the principal sum of $45,000.00 dated February 3, 1999 between Windsor Burke and Delta Funding Corp., which was assigned pursuant to an assignment of mortgage dated August 23, 2002 from Delta Funding Corp. to Wells Fargo Bank Minnesota NA as Trustee, which mortgage was again assigned to Plaintiff by assignment dated July 22, 2009.

Plaintiff's predecessor in interest, Wells Fargo Bank Minnesota NA as Trustee, is alleged to have accelerated the mortgage, by commencing a foreclosure action, on June 14, 2002, against Windsor Burke. This foreclosure action was discontinued, by Order dated April 14, 2009 (Ind. 23699/02), when it became clear that plaintiff did not have standing to bring the foreclosure, as it did not become the assignee of the subject mortgage until a date later than the commencement of the foreclosure. The acceleration brought about by the commencement of the foreclosure was thus null and void and of no force or effect. EMC Mtge. Corp. v. Suarez, 49 AD3d 592 (2nd Dept. 2008). A second foreclosure was commenced in 2003 (21659/03), which was consolidated with the first foreclosure on November 25, 2005, and was thus also discontinued. The only defendant in the second action seems to be the condominium board of managers, perhaps because they filed a Lien for Unpaid Common Charges against the unit after the first action began.

This (third) foreclosure action was commenced on October 5, 2009, and, for the first time, includes the movant owner as a named party defendant. The plaintiff is not the same plaintiff that brought the prior action either, as there was a further assignment of the mortgage, as noted above.

Movant claims that plaintiff's predecessor in interest had the authority to accelerate the loan in 2002 under a theory of agency, even if they did not have standing to bring the foreclosure. This is incorrect. EMC Mtge. Corp. v. Suarez, supra.

The court notes that, if there had been a valid acceleration of the mortgage which was not revoked, which could include the valid commencement of a foreclosure action which was subsequently discontinued, the Statute of Limitations would in fact be deemed to have commenced on the date of acceleration. EMC Mortgage Corp. v. Patella, 279 AD2d 604 (2nd Dept. 2001). However, the Suarez case makes it clear that if a mortgagee does not have standing to commence a foreclosure, they have no standing to accelerate the mortgage.

The Statute of Limitations, in the absence of an acceleration, runs from the date each payment is due (as it is considered a separate cause of action for each installment) or from the time the mortgagee is entitled to demand full payment. Plaia v. Safonte, 45 AD3d 747 (2nd Dept. 2007). Once a mortgage debt is accelerated, either pursuant to its terms or by commencing a foreclosure action, the borrower's right to make monthly installments ceases, all sums become immediately due and payable, and the six-year Statute of Limitations begins to run on the entire mortgage debt. Federal National Mortgage Assn v. Mebane, 208 AD2d 892,894 (2nd Dept. 1994); Clayton Nat'l v. Guldi, 307 AD2d 982 (2nd Dept. 2003); Lavin v. Elmakiss, 302 AD2d 638 (3rd Dept. 2003).

The discontinued foreclosure herein, which was brought by a different plaintiff, and it is noted, defendant movant was not a party at all, does not qualify as a valid acceleration. Suarez. Thus, the Statute of Limitations has run on some installments, not on the entire foreclosure [*3]action. Plaintiff may go back six years preceding the date of filing of the instant action, October 5, 2009, to October 5, 2003; the payments that came due before that date are deemed barred. Pagano v. Smith, 201 AD2d 632 (2nd Dept. 1994).

The Court has reviewed the exhibits annexed to the motion papers, both movant's and plaintiff's opposition, as well as the terms of the mortgage itself. The Court is satisfied that there was no valid acceleration of the mortgage until this action was commenced. The mortgage does not become payable in full until 2029. The mortgage does not by its terms require either notice or acceleration prior to the commencement of a foreclosure action.

Movant's pre-answer motion to dismiss is denied. The complaint is deemed amended to bar recovery of installments which were due prior to October 5, 2003.

This shall constitute the Decision and Order of the Court. Copies of this decision have been mailed to movant and plaintiff.

Dated: Brooklyn, New York

February 1, 2010

Debra Silber, A.J.S.C.