Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980 (N.Y. App. Div. 2d Dep't 2012). · Go Syfert
Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980 (N.Y. App. Div. 2d Dep't 2012). Cases Citing This Book View Copy Cite
293 citation events (293 in the last 25 years) across 12 distinct courts.
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At page 982 Determining statute of limitations for installment mortgages42 citing cases“where the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder's election to take advantage of the accelerating provision, and until such action has been taken the provision…”13 citing courts quote it · 41 listed here
  • Ditech Fin. LLC v. Temple, 2026 NY Slip Op 00951 (N.Y. App. Div. 3d Dep't 2026).published 2 cites
    Instead, plaintiff could wait to exercise its option to accelerate the entire amount of the debt upon any subsequent default, in which case the statute of limitations would run from the date of the acceleration ( see U.S. Bank Trust N.A. v…
  • Blue Castle (Cayman) LTD v. Scherer, No. 3:24-cv-00220 (N.D.N.Y. Feb. 26, 2025).
    If the mortgage is “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.’” Id. (quoting Wells Fargo Bank…
  • O'Byrne v. Smith, 2024 NY Slip Op 33682(U) (N.Y. Surr. Ct., New York Cty. 2024).unpublished
    FundSoc'y, FSBvFernandez, 179AD3d 79, 81 [4thDept2019] ["'Where the acceleration ... is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the holder's election to take advantage of the…
  • Wilmington Sav. Fund Soc'y, FSB v. Bernash, No. 1:23-cv-00485 (N.D.N.Y. Mar. 26, 2024).
    If the mortgage is “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.’” Id. (quoting Wells Fargo Bank…
  • Miss Jones LLC v. Shahid, No. 1:17-cv-00716, 2022 WL 4642716 (E.D.N.Y Sept. 30, 2022).
    “clear and unequivocal”
  • Wilkins v. Specialized Loan Servicing, LLC, No. 1:20-cv-00543 (S.D.N.Y. Aug. 23, 2022). 4 cites
    “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.” Wells Fargo Bank, N.A.…
  • 1042 II Realty, Inc. v. PHH Mortg. Corp., 582 F. Supp. 3d 142 (S.D.N.Y. 2022).published 2 cites
    “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”
  • Miss Jones LLC v. Stiles, No. 7:17-cv-01450-NSR (S.D.N.Y. Aug. 13, 2020).
    However, “once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to 17 run on the entire debt.” CIT Bank, N.A. v Nwanganga, 328 F. Supp. 3d 189, 201 (S.D.N.Y. 2018) (quoting Wells Fargo Bank, N.…
  • U.S. Bank Trust, N.A. v. Ellis, 181 A.D.3d 451 (N.Y. App. Div. 1st Dep't 2020).published
    Since the 2013 discontinuance did not de-accelerate the payments due under the mortgage, plaintiff cannot rely on the discontinuance to establish that this 2017 foreclosure action is timely ( Wells Fargo Bank, N.A. v Burke , 94 AD3d 980, 9…
  • Wilmington Sav. Fund Socy., FSB v. Fernandez, 113 N.Y.S.3d 443 (N.Y. App. Div. 4th Dep't 2019).published
    "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" ( Wells Fargo Bank, N.A.…
Show 31 more citing cases
  • U.S. Bank N.A. v. Hazan, 176 A.D.3d 637 (N.Y. App. Div. 1st Dep't 2019).published
    (since plaintiff's predecessor lacked standing to commence the prior foreclosure action, commencement of that action did not operate to validly accelerate the debt)
  • Windward Bora, LLC v. Wilmington Sav. Fund Soc'y, FSB, No. 1:18-cv-00402 (N.D.N.Y. Sept. 27, 2019).
    Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 982 (2d Dep’t 2012) (internal citations and quotation marks omitted).
  • J & JT Holding Corp. v. Deutsche Bank Natl. Trust Co., 173 A.D.3d 704 (N.Y. App. Div. 2d Dep't 2019).published 2 cites
    In contrast, acceleration of the mortgage debt is determined as of the date the note holder has made an affirmative act evidencing its election to accelerate under the terms of the note and mortgage ( see Wells Fargo Bank, N.A. v Burke , 9…
  • MTGLQ Invs., LP v. Wozencraft, 172 A.D.3d 644 (N.Y. App. Div. 1st Dep't 2019).published
    Once a mortgage debt is accelerated, the entire amount becomes due and the six-year statute of limitations begins to run on the entire debt ( see Wells Fargo Bank N.A. v Burke , 94 AD3d 980, 982 [2d Dept 2012]; CPLR 213[4]).
  • 53 PL Realty, LLC v. US Bank Nat'l Ass'n, 153 A.D.3d 894 (N.Y. App. Div. 2d Dep't 2017).published
    Fund Socy., FSB, 144 AD3d at 986 ; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982 [2012]; Clayton Natl. v Guldi, 307 AD2d 982 [2003]).
  • 21st Mortg. Corp. v. Adames, 153 A.D.3d 474 (N.Y. App. Div. 2d Dep't 2017).published 2 cites
    “As a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action” (Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982…
  • NMNT Realty Corp. v. Knoxville 2012 Trust, 151 A.D.3d 1068 (N.Y. App. Div. 2d Dep't 2017).published 2 cites
    Fund Socy., FSB, 144 AD3d 985, 986 [2016]; Nationstar Mtge., LLC v. Weisblum, 143 AD3d 866, 867 [2016]; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982 [2012]). “ '[E]ven if a mortgage is payable in installments, once a mortgage debt is a…
  • McQueen v. Bank of New York, 57 Misc. 3d 481 (N.Y. Sup. Ct. 2017).published
    (Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982 [2d Dept 2012].) Thereafter, the above-referenced foreclosure action was dismissed, without prejudice, by order dated the 9th day of April, 2015.
  • Deutsche Bank Nat'l Trust Co. Americas v. Bernal, 56 Misc. 3d 915 (N.Y. Sup. Ct. 2017).published 2 cites
    However, ‘even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt’ ” (Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982 [2d…
  • Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193 (N.Y. App. Div. 2d Dep't 2017).published 2 cites
    Here, Cohan met his prima facie burden by demonstrating that the statute of limitations began to run in October or November 2005, when Argent, Wells Fargo’s predecessor in interest, accelerated the mortgage debt owed by the defendant Eitan…
  • Nationstar Mortg., LLC v. Weisblum, 143 A.D.3d 866 (N.Y. App. Div. 2d Dep't 2016).published 3 cites
    “As a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding . . . the action” (Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982 [2012]; see C…
  • Bank of New York Mellon v. Deane, 41 Misc. 3d 494 (N.Y. Sup. Ct. 2013).published
    Corp. [USA] v Gerber, 100 AD3d 966 , 966-967 [2d Dept 2012]; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982-984 [2d Dept 2012]; GE Capital Mtge.
  • Wilmington Sav. Fund Socy., FSB v. Gustafson, 2018 NY Slip Op 2954 (N.Y. App. Div. 4th Dep't 2018).published
  • Ditech Fin., LLC v. Corbett, 2018 NY Slip Op 7862 (N.Y. App. Div. 4th Dep't 2018).published
  • U.S. Bank N.A. v. Gordon, 72 N.Y.S.3d 156 (N.Y. App. Div. 2d Dep't 2018).published
  • Fulton Holding Grp., LLC v. Lindoff, 2018 NY Slip Op 7099 (N.Y. App. Div. 2d Dep't 2018).published
  • Fulton Holding Grp., LLC v. Lindoff, 2018 NY Slip Op 7098 (N.Y. App. Div. 2d Dep't 2018).published
  • Fulton Holding Grp., LLC v. Lindoff, 2018 NY Slip Op 7097 (N.Y. App. Div. 2d Dep't 2018).published
  • Fulton Holding Grp., LLC v. Lindoff, 2018 NY Slip Op 7096 (N.Y. App. Div. 2d Dep't 2018).published
  • US Bank Trust, N.A. v. Williams, 2019 NY Slip Op 634 (N.Y. App. Div. 2d Dep't 2019).published
  • Bank of N.Y. Mellon v. Dieudonne, 96 N.Y.S.3d 354 (N.Y. App. Div. 2d Dep't 2019).published
  • Bank of N.Y. Mellon v. Maldonado, 97 N.Y.S.3d 162 (N.Y. App. Div. 2d Dep't 2019).published
  • Aurora Loan Servs., LLC v. Tobing, 172 A.D.3d 975 (N.Y. App. Div. 2d Dep't 2019).published
  • Herzl Dev. Grp., LLC v. Fed. Natl. Mtge. Assn., 2019 NY Slip Op 6385 (N.Y. App. Div. 2d Dep't 2019).published
  • 21st Mtge. Corp. v. Balliraj, 111 N.Y.S.3d 347 (N.Y. App. Div. 2d Dep't 2019).published
  • U.S. Bank N.A. v. Vitolo, 182 A.D.3d 627 (N.Y. App. Div. 2d Dep't 2020).published
  • Trust v. Barua, 184 A.D.3d 140 (N.Y. App. Div. 2d Dep't 2020).published
  • Wells Fargo Bank, N.A. v. Nesci, 131 N.Y.S.3d 107 (N.Y. App. Div. 2d Dep't 2020).published
  • Capital One, N.A. v. Ludden, 192 A.D.3d 752 (N.Y. App. Div. 2d Dep't 2021).published
  • Wells Fargo Bank, N.A. v. Breuer, 2022 NY Slip Op 02037 (N.Y. App. Div. 2d Dep't 2022).published
  • CIT Bank, N.A. v. Nwanganga, 328 F. Supp. 3d 189 (S.D. Ill. 2018).published
At page 983 Determining notice requirements for loan acceleration14 citing casesquotation omitted1 citing court put it this way
  • Costa v. Deutsche Bank Nat'l Trust Co., 247 F. Supp. 3d 329 (S.D.N.Y. 2017).published 2 cites
    “the borrower must be provided with notice of the holder's decision to exercise the option to accelerate the maturity of a loan.”
  • U.S. Bank Trust N.A. v. Barr, 2026 NY Slip Op 03199 (N.Y. App. Div. 2d Dep't 2026).published 4 cites
    Mellon v Jones , 239 AD3d at 806 [alteration and internal quotation marks omitted]). "'[T]he borrower must be provided with notice of the [note]holder's decision to exercise the option to accelerate the maturity of a loan, and such notice…
  • Ditech Fin. LLC v. Temple, 2026 NY Slip Op 00951 (N.Y. App. Div. 3d Dep't 2026).published 2 cites
    Instead, plaintiff could wait to exercise its option to accelerate the entire amount of the debt upon any subsequent default, in which case the statute of limitations would run from the date of the acceleration ( see U.S. Bank Trust N.A. v…
  • Wilmington Sav. Fund Socy. FSB v. Deliberto, 126 N.Y.S.3d 273 (N.Y. App. Div. 4th Dep't 2020).published
    Rather, the mortgage provides that the lender may accelerate the debt upon a default and, here, defendants did not establish that plaintiff chose to accelerate the debt at any time before the complaint was filed ( see Wells Fargo Bank, N.A…
  • West Coast 2014-7, LLC v. Mackinnon, No. 1:19-cv-00888 (W.D.N.Y. Apr. 21, 2020).
    (quotation omitted)
  • Stewart Title Ins. Co. v. Bank of New York Mellon, 154 A.D.3d 656 (N.Y. App. Div. 2d Dep't 2017).published
    That acceleration, however, was a nullity, since BoNY lacked standing to commence the 2007 foreclosure action, which was dismissed on the ground of BoNYs lack of standing (see Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 983 [2012]; cf. Be…
  • Stewart Title Ins. Co. v. Bank of New York Mellon, 154 A.D.3d 656 (N.Y. App. Div. 2d Dep't 2017).published
    That acceleration, however, was a nullity, since BoNY lacked standing to commence the 2007 foreclosure action, which was dismissed on the ground of BoNYs lack of standing (see Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 983 [2012]; cf. Be…
  • Nationstar Mortg., LLC v. MacPherson, 56 Misc. 3d 339 (N.Y. Sup. Ct. 2017).published
    Assoc. v Giancontieri ( 77 NY2d 157, 162 [1990]), “[a] familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to…
  • Bank of New York Mellon v. Slavin, 54 Misc. 3d 311 (N.Y. Sup. Ct. 2016).published
    Assn. v Mebane, 208 AD2d 892, 894 [2d Dept 1994]), the revocation should be clear, unequivocal, and give actual notice to the borrower of the lender’s election to revoke in sum, akin to the manner plaintiff gave notice to exercise the opti…
  • Goldman Sachs Mortg. Co. v. Mares, 135 A.D.3d 1121 (N.Y. App. Div. 3d Dep't 2016).published 2 cites
    Where, as here, it is alleged that the debt was accelerated by demand, that fact must be communicated to the mortgagor in a clear and unequivocal manner (see Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 983 [2012]; Sarva v Chakravorty, 34…
Show 4 more citing cases
  • 650 Brooklyn LLC v. Hunte, 47 Misc. 3d 885 (N.Y. Sup. Ct. 2015).published
    Where, as here, a mortgage contains an acceleration clause in statutory form (see Real Property Law § 258 [schedule N] [“(t)hat the whole of said principal sum and interest shall become due at the option of the mortgagee: after default in…
  • Islandcap, LLC v. Cohen, 2024 NY Slip Op 04253 (N.Y. App. Div. 2d Dep't 2024).published 2 cites
    (citations and internal quotation marks omitted)
  • MTGLQ Invs., LLP v. Lunder, 123 N.Y.S.3d 711 (N.Y. App. Div. 3d Dep't 2020).published
  • Windward Bora LLC v. Mohamed, No. 1:21-cv-03736 (S.D.N.Y. Dec. 22, 2023).
943 N.Y.S.2d at 542 As a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action.10 citing cases1 citing court put it this way
  • U.S. Bank Nat'l Ass'n v. Mc Dermott, No. 7:20-cv-00352, 2022 WL 2392522 (S.D.N.Y. July 1, 2022).
    (As a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action.)
  • Costa v. Deutsche Bank Nat'l Trust Co., 247 F. Supp. 3d 329 (S.D.N.Y. 2017).published 2 cites
    IndyMac’s Notice of Default Accelerated the Loan “As with other contractual options,” an acceleration-option holder “may be required to exercise [the] option ... in accordance with the terms of the note and mortgage.” Burke, 943 N.Y.S.2d a…
  • E. Fork Funding LLC v. U.S. Bank, Nat'l Ass'n, 118 F.4th 488 (2d Cir. 2024).published
    “For 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.’” 53rd St., LLC v. U.S. Bank, N.A., 8…
  • Fried v. CIT Bank, N.A., No. 1:22-cv-07376 (E.D.N.Y May 15, 2024).
    C.P.L.R. (“CPLR”) § 213(4), measured from the lender’s acceleration of the mortgage, see Wells Fargo Bank, N.A. v. Burke, 943 N.Y.S.2d 540, 542 (2d Dep’t 2012).
  • Windard Bora LLC v. Sotomayor, No. 7:21-cv-07161 (S.D.N.Y. Mar. 20, 2023).
    “When acceleration of the mortgage debt on default is made optional with the holder of the note and mortgage,” as here, “some affirmative action must be taken evidencing the holder’s election to take advantage of the accelerating provision…
  • Wilkins v. Specialized Loan Servicing, LLC, No. 1:20-cv-00543 (S.D.N.Y. Aug. 23, 2022). 4 cites
    “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”
  • R. Kenneth Barnard, as Chapter 7 Tr. of the Es v. Nationstar Mortg. LLC, as Servicing Agent for We, No. 8-18-08002 (Bankr. E.D.N.Y. Nov. 27, 2019).
    Wells Fargo Bank, N.A. v. Burke, 943 N.Y.S.2d 540, 542 (2d Dep’t 2012).
  • In re Campbell, 513 B.R. 846 (Bankr. S.D.N.Y. 2014).published
    “[Ojnce a mortgage is accelerated, the entire amount is due”
  • 3939 WPR Funding LLC v. Campbell (In re Campbell), 539 B.R. 66 (S.D.N.Y. 2015).published
  • Del Rio v. McCabe, Weisberg & Conway, LLC, No. 1:19-cv-10312 (S.D.N.Y. Nov. 16, 2021).
943 N.Y.S.2d at 543 cited at this page1 citing case
  • Article 13 LLC v. Cent. Mortg. Co., No. 1:20-cv-03553 (E.D.N.Y Dec. 28, 2022).
    Commencement of a foreclosure action is “ineffective to constitute a valid exercise of the option to accelerate a debt where the plaintiff does not ‘have the authority to accelerate the debt or to sue to foreclose at that time.’” MLB Sub I…
Other citing cases8 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo Bank Minnesota, N.A., as Trustee for Delta Funding Home Equity Loan Trust 1991-1
v.
Windsor Burke
Appellate Division of the Supreme Court of the State of New York.
Apr 17, 2012.
Published opinion
94 A.D.3d 980

[*981] In an action to foreclose a mortgage, the defendant Windsor Burke appeals from so much of an order of the Supreme Court, Kings County (Silber, J.), dated December 16, 2010, as denied his motion pursuant to CPLR 5015 to vacate his default in appearing or answering and to dismiss the complaint insofar as asserted against him as barred by the statute of limitations, and the defendant 105 4th Units, LLC, appeals from so much of the same order as, upon reargument, adhered to its original determination in an order dated February 1, 2010, denying that branch of its motion which was pursuant to CPLR 3211 (a) (5) to dismiss so much of the complaint as, in effect, asserted causes of action against it based on payments due on or after October 5, 2003, as barred by the statute of limitations.

Ordered that the order dated December 16, 2010, is affirmed insofar as appealed from, with costs.

In 1999, the defendant Windsor Burke borrowed $45,000 from nonparty Delta Funding Corporation (hereinafter Delta) which was secured by a 30-year mortgage on property owned by Burke located in Brooklyn. Burke defaulted on March 3, 2002, by failing to make the required monthly payment, and he conceded that he failed to make any of the monthly payments that came due after that date.

In June 2002, a foreclosure action (hereinafter the 2002 action) was commenced against Burke by the nonparty Wells Fargo Bank Minnesota, N.A. (hereinafter the Predecessor). However, the note and mortgage were not assigned to the Predecessor until August 23, 2002. Burke did not appear or interpose an answer in the 2002 action.

A junior lienholder, the nonparty Board of Managers 105 4th Avenue Condominium (hereinafter the Condominium Board), was named as a defendant in the 2002 action, but was never served with process. Another action was commenced by the Predecessor in 2003 (hereinafter the 2003 action), which named the Condominium Board as the defendant. Burke was not named as a defendant in the 2003 action. The 2003 action was consolidated with the 2002 action on November 2005.

By deed dated June 29, 2006, Burke conveyed his interest in the property to the nonparty NB 105 4th Apts, LLC. That entity, in turn, conveyed the interest to the defendant 105 4th Units, LLC (hereinafter Units LLC), pursuant to a bargain and sale deed dated November 15, 2006.

Sometime in July 2008, counsel for Units LLC advised counsel for the Predecessor that since the Predecessor had not been assigned the note and mortgage prior to commencing the 2002 action, it lacked standing. The Predecessor agreed to voluntarily[*982] discontinue the consolidated action, and an order dated April 14, 2009, discontinued the consolidated action.

In June 2009, the note and mortgage were assigned to the plaintiff. On October 5, 2009, the present foreclosure action was commenced by the plaintiff against, among others, Burke and Units LLC. Burke did not appear or interpose an answer. Units LLC made a pre-answer motion to dismiss the complaint insofar as asserted against it. It argued that the Predecessor had accelerated the loan in 2002 or 2003, and that the 2009 action was therefore barred by the six-year statute of limitations.

The Supreme Court denied that branch of the motion of Units LLC which was to dismiss so much of the complaint as, in effect, asserted causes of action against it based on payments due on or after October 5, 2003. However, the court found that payments which had become due prior to October 5, 2003, were time-barred.

Units LLC moved for leave to reargue. At this point, Burke separately moved to vacate his default and to dismiss the complaint insofar as asserted against him. The Supreme Court granted the motion for reargument, but, upon reargument, adhered to its prior determination denying that branch of the motion of Units LLC which was to dismiss so much of the complaint as, in effect, asserted causes of action against it based on payments due on or after October 5, 2003. The Supreme Court also denied Burke’s motion to vacate his default and to dismiss the complaint insofar as asserted against him. Burke and Units LLC appeal.

As a general matter, an action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year period immediately preceding the commencement of the action (see CPLR 213 [4]). With respect to a mortgage payable in installments, separate causes of action accrued for each installment that is not paid, and the statute of limitations begins to run, on the date each installment becomes due (see Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753, 754 [2011]; Loiacono v Goldberg, 240 AD2d 476, 477 [1997]; Pagano v Smith, 201 AD2d 632, 633 [1994]). However, “even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt” (EMC Mtge. Corp. v Patella, 279 AD2d 604, 605 [2001]; see Lavin v Elmakiss, 302 AD2d 638, 639 [2003]; Zinker v Makler, 298 AD2d 516, 517 [2002]).

Where the acceleration of the maturity of a mortgage debt on default is made optional with the holder of the note and mortgage, some affirmative action must be taken evidencing the[*983] holder’s election to take advantage of the accelerating provision, and until such action has been taken the provision has no operation (see Esther M. Mertz Trust v Fox Meadow Partners, 288 AD2d 338, 340 [2001]; Ward v Walkley, 143 AD2d 415, 417 [1988]; see also 1-5 Bergman on New York Mortgage Foreclosures § 5.11 [2] [2011]). “Sometimes . . . whether maturity has arrived through acceleration can be a question of fact” (1-5 Bergman on New York Mortgage Foreclosures § 5.11 [3] [2011]; cf. LPP Mtge. Ltd. v Gold, 44 AD3d 718, 719 [2007]).

As with other contractual options, the holder of an option may be required to exercise an option to accelerate the maturity of a loan in accordance with the terms of the note and mortgage (see Serapilio v Staszak, 255 AD2d 824 [1998]; Loiacono v Goldberg, 240 AD2d at 477; see generally Island Auto Seat Cover Co., Inc. v Minunni, 69 AD3d 570, 571 [2010]). Furthermore, the borrower must be provided with notice of the holder’s decision to exercise the option to accelerate the maturity of a loan (see EMC Mtge. Corp. v Smith, 18 AD3d 602, 603 [2005]; EMC Mtge. Corp. v Patella, 279 AD2d at 605-606; Arbisser v Gelbelman, 286 AD2d 693, 694 [2001]), and such notice must be “clear and unequivocal” (Sarva v Chakravorty, 34 AD3d 438, 439 [2006]; see Arbisser v Gelbelman, 286 AD2d at 694; Colonie Block & Supply Co. v Overmyer Co., 35 AD2d 897, 897 [1970]). Commencement of a foreclosure action may be sufficient to put the borrower on notice that the option to accelerate the debt has been exercised (see EMC Mtge. Corp. v Smith, 18 AD3d at 603; Clayton Natl. v Guldi, 307 AD2d 982 [2003]; Arbisser v Gelbelman, 286 AD2d at 694).

Here, the Predecessor had not been assigned the note or the mortgage at the time the 2002 complaint was served upon Burke. Accordingly, service of the 2002 complaint was ineffective to constitute a valid exercise of the option to accelerate the debt since the Predecessor did not have the authority to accelerate the debt or to sue to foreclose at that time (see EMC Mtge. Corp. v Suarez, 49 AD3d 592, 593 [2008]). Furthermore, Units LLC failed to demonstrate that the commencement of the 2003 action was effective to constitute a valid exercise of the acceleration option since it failed to show that the Predecessor served Burke with the complaint in the 2003 action prior to October 5, 2003 (see Sarva v Chakravorty, 34 AD3d at 439). Even if the consolidation of the 2002 and 2003 actions could be construed as a valid acceleration, it occurred in 2005, less than six years prior to the commencement of this action (see CPLR 213 [4]).

In sum, Units LLC failed to demonstrate that the option to[*984] accelerate the maturity of the loan was validly exercised in accordance with the terms of the note and mortgage, prior to October 5, 2003 (see EMC Mtge. Corp. v Suarez, 49 AD3d at 593; Sarva v Chakravorty, 34 AD3d at 439; see also Esther M. Mertz Trust v Fox Meadow Partners, 288 AD2d at 339; Loiacono v Goldberg, 240 AD2d at 477; Pagano v Smith, 201 AD2d at 633; Ward v Walkley, 143 AD2d at 417). Accordingly, upon re-argument, the Supreme Court properly adhered to its prior determination denying that branch of the motion of Units LLC which was to dismiss so much of the complaint as, in effect, asserted causes of action against it based on payments due on or after October 5, 2003.

Contrary to Burke’s contention, the Supreme Court properly denied his motion to vacate his default in appearing or answering and to dismiss the complaint insofar as asserted against him as barred by the statute of limitations (see Centennial El. Indus., Inc. v Ninety-Five Madison Corp., 90 AD3d 689, 689-690 [2d Dept 2011]; Brownfield v Ferris, 49 AD3d 790, 791 [2008]). Skelos, J.P., Dickerson, Austin and Miller, JJ., concur.