NY’s Fourth Department Holds That Notice of Default Did Not Provide Clear and Unequivocal Notice to Accelerate the Debt
In Ditech Financial LLC v. Corbett, 2018 WL 6006682, at *1, —N.Y.S.3d —- (2d Dept. Nov. 16, 2018), the Appellate Division, Fourth Department, held that a notice of default sent to the borrowers-defendants, which discussed a possible future event, did not provide clear and unequivocal notice sufficient to accelerate the debt, thereby triggering the statute of limitations.
In January 2016, plaintiff, Ditech Financial LLC (“Plaintiff”), commenced an action to foreclose against borrowers, Timothy Corbett and Sheila Corbett (“Borrowers”). Plaintiff moved for summary judgment (the “Motion”), and Borrowers opposed the Motion on the grounds that the statute of limitations to foreclose had expired. In support, Borrowers alleged that a January 2010 notice of default (“2010 Default Letter”) sent by Plaintiff’s predecessor-in-interest accelerated the debt and therefore, the statute of limitations to foreclose began to run on the entire debt at that time. The Onondaga County Supreme Court (“Lower Court”) granted Plaintiff’s Motion. Borrowers appealed.
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