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FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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U.S. Bank National Association, as trustee, on : Index No. 032706/2023
behalf of the holders of the Asset Backed
Securities Corporation Home Equity Loan Trust, : Return date:
Series MO 2006-HE6 Asset Backed Pass-Through February 12, 2024
Certificates, Series MO 2006-HE6, :
MEMORANDUM OF LAW
Plaintiff, : IN SUPPORT OF
v. DEFENDANTS’ MOTION
: FOR SUMMARY
Helen Papanikolaw a/k/a Helen G. Papanikolaw, JUDGMENT DISMISSING
James G. Papanikolaw a/k/a James Papanikolaw, : THE COMPLAINT AND
Midland Funding LLC, Equable Ascent Financial GRANTING JUDGMENT
LLC, Winthrop Capital LLC, Portfolio Recovery ON DEFENDANTS’
Associates LLC, Rockland Woods Inc., Midland COUNTERCLAIM
Funding LLC a/s/i/i to Chase Account and “JOHN CANCELLING AND
DOE #1” through “JOHN DOE #12,” the last DISCHARGING THE
twelve names being fictitious and unknown to MORTGAGE AS BARRED
Plaintiff, the person or parties intended being the BY THE STATUTE OF
tenants, occupants, persons or corporations, if any, LIMITATIONS. AND FOR
having or claiming an interest in or lien upon the LEGAL FEES
premises being foreclosed herein,
Defendants.
Hon. Thomas P. Zugibe, J.S.C.
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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AND GRANTING
JUDGMENT ON DEFENDANTS’ COUNTERCLAIM CANCELLING AND
DISCHARGING THE MORTGAGE AS BARRED BY THE STATUTE OF
LIMITATIONS. AND FOR LEGAL FEES
Defendants Helen Papanikolaw and James Papanikolaw, (“Defendants”), by their counsel,
the Legal Aid Society of Rockland County, Inc. (“Legal Aid Society”), hereby respectfully move
for an order dismissing the complaint in this action and granting judgment on Defendants’
counterclaim cancelling and discharging the subject Mortgage as barred by the Statute of
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Limitations pursuant to RPAPL § 1501(4), as set forth in Defendants’ Verified Answer (the
“Answer”) NYSCEF Doc. No. 17, pp 1, 4.
The Legal Aid Society is also entitled to summary judgment awarding it legal fees, as
demanded in Defendants’ second counterclaim set forth in their Answer. Answer, p. 7.
This Motion should be granted because the statute of limitations has expired by reason of
the subject mortgage’s acceleration by Plaintiff on July 28, 2011. The acceleration was affected by
the complaint in the action captioned U.S. Bank National Association v. Helen Papanikolaw.
James G. Papanikolaw, et al., Index No. 031323/2011 (the “First Action”). Complaint, First
Action, NYSCEF Doc. No. 1. The acceleration date was a date over six years prior to the
commencement of this action on June 15, 2023. The last day on which this action could have been
validly commenced was July 27, 2017. This action is therefore barred by CPLR § 213(4) which
requires that any action on a bond or mortgage must be commenced within six years after
acceleration, subject to any tolling periods and that the acceleration has not been expressly held by
a court to have been invalid. The 2011 acceleration has never been judicially determined to be
invalid and no tolls apply after the accrual of the claim.
The acceleration was not revoked pursuant to CPLR § 203(h), which requires that, for an
action upon a mortgage of real property, or any interest therein, which this action is, “no party
may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual
thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by
law to commence an action and to interpose the claim, unless expressly prescribed by statute.”
(CPLR § 203[h].) Nor was it revoked or tolled by any discontinuance of the two prior foreclosure
actions by virtue of CPLR § 3217(e). That statute provides that, for an action upon a mortgage of
real property, or any interest therein, which this action is, “the voluntary discontinuance of such
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action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive,
postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to
interpose a claim, unless expressly prescribed by statute...” (CPLR § 3217[e].)
Accordingly, because more than six years elapsed, and there are no applicable tolls, since
the acceleration of the mortgage, and the acceleration was never held to be invalid or revoked in a
way conforming with statute, the statute of limitations, pursuant to CPLR § 213(4), has expired.
Therefor this case must be dismissed, and, by operation of RPAPL § 1501(4), the subject mortgage
should be cancelled and discharged of record. Legal fees must also be awarded.
Because Plaintiff has not filed aa reply to Defendants’ statute of limitations defenses and
mortgage discharge and legal fee counterclaims, and the time to file such a reply has expired, this
motion can be granted on default. If the Court declines to do so, the facts and the law, as well as
equity, require this now twelve-and-a-half-year war of attrition Plaintiff has waged against
Defendants be brought to an end.
FACTS
This is Plaintiff’s third bite at the apple.
FIRST ACTION
The First Action was commenced on July 28, 2011. The Complaint in that action states:
Plaintiff, the owner and holder of the aforementioned Note and Mortgage, or their agents
have elected and hereby accelerate the mortgage and declare the entire mortgage indebtedness due
and payable.
Complaint, NYSCEF Doc. No. 1, at p.10.
Accordingly, Plaintiff validly accelerated the subject mortgage.
Defendants appeared and filed an answer in the First Action. After the case was released
from settlement conferences, it lay dormant for over five years. It was dismissed on November 17,
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2016 when the court granted Defendants’ motion to dismiss for failure to prosecute pursuant to
CPLR §3216. NYSCEF Doc. No. 57.1
Plaintiff filed a Notice of Appeal on December 29, 2016, NYSCEF Doc. No. 57, only to
withdraw it a few months later.
SECOND ACTION
Rather than prosecute the appeal of the First Action, Plaintiff filed its second action on
March 14, 2018, again seeking to foreclosure the subject mortgage, U.S. Bank N.A. v. Helen
Papanikolaw and James Papanikolaw et.al., Index No. 031424/2018 (the “Second Action”).
Defendants appeared and filed an answer asserting a statute of limitations defense and a
discharge counterclaim. NYSCEF Doc. No. 28. Defendants filed a motion for summary judgment
to dismiss and for discharge. NYSCEF Doc. No. 35. Plaintiffs responded with a cross-motion for
summary judgment. NYSCEF Doc. No. 59.
Plaintiff’s motion was predicated primarily on a purported “notice of de-acceleration”
issued on April 10, 2017, 87 days before the statute of limitations triggered by the 2011
acceleration was due to expire. Pltfs’ Affirm. in Opposition to Defs’ Motion for Summary
Judgment, Second Action, NYSCEF Doc. 60, at ¶¶30-32; Pltf’s Memo of Law, NYSCEF Docs.
No. 84, at pp. 10-11. Plaintiff’s motion was denied and Defendants was granted by Decision and
Order on January. 2, 2019. NYSCEF No. 90. Plaintiff moved to renew and reargue. NYSCEF Doc.
No. 97. The motion was denied on July 8, 2019. NYSCEF Doc. No. 133.
1
While the First Action was pending, Plaintiff filed yet another proceeding, seeking a declaration as to the validity of
the Mortgage and to compel Defendants to execute a new deed in order to correct alleged defects in the original deed.
U.S. Bank N.A. v. Papanikolaw, Index No. 34456/2015. After Plaintiff’s motion for summary judgment was denied,
except as to confirming the identity of Helen Papanikolaw, Plaintiff abandoned the action.
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Plaintiff appealed those orders to the Appellate Division, which ruled in its favor, holding
that the de-acceleration notice was valid, and reversing the dismissal of the Second Action. U.S.
Bank N.A. v Papanikolaw, 197 AD3d 767 [2d Dept 2021].
Before a foreclosure sale was affected, however, the Second Department decided Bank of
Am., N.A. v Kessler, 202 AD3d 10 [2d Dept 2021], rev’d, 39 NY3d 317 [2023]. Prior to Kessler
being overruled by the Court of Appeals, Defendants filed an opposition to Plaintiff’s motion for a
Judgment of Foreclosure and Sale. NYSCEF Doc. No. 200. Supreme Court again dismissed the
Second Action, this time for Plaintiff’s failure to adhere to the “separate envelope rule” set forth in
Kessler. NYSCEF Doc. No. 204.
Plaintiff again filed a Notice of Appeal, NYSCEF Doc. No. 207, which it subsequently
moved to withdraw.
The Appellate Division, Second Department, granted the motion to withdraw the appeal
on June 29, 2023.
Prior to the Second Department’s grant of the motion to withdraw the Second Action,
Plaintiff commenced this action on June 15, 2023.
Two Judges of the Rockland County Supreme Court have issued three rulings against
Plaintiff in the two prior foreclosure actions over the past decade, citing its dilatory and duplicitous
conduct:
1. “This matter has been substantively neglected since in or about May 2012 when
the last court conference was held. Plaintiff's excuse . . . fails to address the otherwise 'foot-
dragging' on Plaintiff's part and its failure to move the case forward.” Order granting
Respondent’s Motion to Dismiss. First Action, NYSCEF Doc. No. 56, at 2. (Alfieri, J.S.C.,)
3. “[T]his Court [cannot] ignore plaintiff’s unexplained and inexplicable pattern of
delay and apparent gaming of both defendants and the Court. This Court reiterates what the Court
of Appeals held 50 years ago: ‘there comes a time when [a defendant] ought to be secure in his [or
her] reasonable expectation that the slate has been wiped clean of ancient obligations.’ Seven and a
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half years and three actions later, now is that time for defendants.” Dismissal Order, Second
Action, NYSCEF Doc. No. 90, at 16-17. (P. Marx, J.S.C)
4. Plaintiff’s claim it validly de-accelerated the loan is “farcical”, “chicanery” and
“[t]here is nothing inequitable about a Court, such as this one, demanding that parties prosecute
actions diligently and honestly. In this case, plaintiff has done neither. Equity, therefore, required
that the Court bring an end to plaintiff's duplicitous and misguided efforts at foreclosure.” Order
Denying Appellants Motion to Renew and Reargue, Second Action, NYSCEF Doc. No, 128, at 9.
(P. Marx, J.S.C.)
ARGUMENT
I. The Six-year Statute of Limitations Has Run.
Summary judgment in favor of Defendants is appropriate here because Defendants have
met their prima facie burden of showing that the statute of limitations has run. An action to
foreclose a mortgage may be brought to recover only those unpaid sums which were due within the
six-year period immediately preceding the commencement of the action. (CPLR § 213[4]; Wells
Fargo Bank, N.A. v. Burke, 94 AD3d 980, 982 [2d Dept 2012].) “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.” (Burke, 94
AD3d at 982.) “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.” (Id.) Upon the mortgage debt being accelerated, “the borrowers’ right and obligation to
make monthly installments cease[s] and all sums become immediately due and payable.” (Fed
Nat’l Mtge Ass’n v. Mebane, 208 AD2d 892, 894 [2d Dept 1994].)
As set forth above, Plaintiff accelerated the loan in 2011 upon the filing of the First Action.
Significantly, the Complaint in the instant action, nor any of the other of Plaintiff’s
pleadings does not contain a statement that the subject loan is being accelerated. That is because
the loan had already been accelerated in 2011 upon the filing of the First Action.
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In order to successfully oppose this Motion for Summary Judgment, Plaintiff must produce
evidentiary proof in admissible form establishing that a triable issue of material fact exists that the
Mortgage was never accelerated or, if it was, the applicable statute of limitations was tolled,
revoked, or is otherwise inapplicable, as opposed to mere conclusions, hope, unsubstantiated
allegations, or assertions. (Williams v. New York City Health and Hospitals Corp., 84 AD 3d 1358,
1359 [2d Dept. 2011]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).
II. Plaintiff Is Estopped by FAPA From Claiming the Prior Cases Tolled the
Limitations Period, or That Plaintiff’s ‘De-Acceleration’ of the Loan Allows It
to Restart the Six-Year Period with This Action, or That the 2011 Acceleration
was Invalid.
The Foreclosure Abuse Prevention Act, (L 2022, ch 821), which took effect December 30,
2022 (hereinafter, “FAPA”), prevents a tolling of the statute of limitations on account of prior
cases that were dismissed due to a plaintiff’s dilatory conduct or voluntary withdrawal of a prior
case, and prohibits a “de-acceleration” from allowing a plaintiff to restart the limitations period.
As explained by the First Department’s recent holding in Genovese v Nationstar Mtge.
LLC, 199 NYS3d 513 [1st Dept 2023] (“Genovese”):
FAPA represents the Legislature's response to litigation strategies and
certain legal principles that distorted the operation of the statute of limitations in
foreclosure actions (Assembly Mem in Support of 2022 Assembly Bill A7737B,
L2022, ch 821 at 1; Senate Introducer's Mem in Support of 2022 NY Senate Bill
S5473D at 1). “The legislature [found] that there is an ongoing problem with abuses
of the judicial foreclosure process and lenders' attempts to manipulate statutes of
limitations; that the problem has been exacerbated by recent court decisions which,
contrary to the intent of the legislature, have given mortgage lenders and loan
servicers opportunities to avoid strict compliance with remedial statutes and
manipulate statutes of limitations to their advantage; and that the purpose of
[FAPA] is to clarify the meaning of existing statutes, and to rectify these erroneous
judicial interpretations thereof” (Assembly Mem in Support of 2022 Assembly Bill
A7737B, L2022, ch 821 at 1). FAPA's aim: “to thwart and eliminate abusive and
unlawful litigation tactics that have been adopted and pursued in mortgage
foreclosure actions to manipulate the law and judiciary to yield to expediency and
the convenience of mortgage banking and servicing institutions at the expense of
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the finality and repose that statutes of limitations are meant to ensure” (id.; see also
Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D at 1).
Genovese, at 514.
Plaintiff filed this case five and a half months after FAPA’s enactment.
a. Plaintiff Is Estopped from Arguing That Either the Dismissal of the First
Action or the Discontinuance of the Second Action Tolled the Statute of
Limitations.
Defendants moved to dismiss the First Action for failure to prosecute under CPLR § 2316.
NYSCEF No. 26. The motion was granted by Decision and Order dated November 17, 2016. As
noted above, the court expressly found that “[t]his matter has been substantively neglected since in
or about May 2012 when the last court conference was held.” First Action, NYSCEF Doc. No. 56.
At 2.
FAPA amended CPLR §205-a, the “six-month savings provision,” to preclude its use by a
plaintiff where there was a “dismissal of the complaint for any form of neglect.” Since the First
Action was dismissed due to neglect, Plaintiff could not avail itself of the six-month savings
clause. Instead, it waited until March 14, 2018, fully one year and four months later, to file the
Second Action.
The record is devoid of the Second Action being either voluntarily discontinued or
dismissed. Plaintiff merely abandoned its appeal.
b. Plaintiff is Estopped From Claiming That Its Purported ‘De-Acceleration’
of the Mortgage Loan Reset the Statute of Limitations.
Plaintiff, in prior attempts to circumvent the statute of limitations, has argued that it “de-
accelerated” the loan on April 10, 2017 by sending a “Notice of De-Acceleration” to Defendants,
and therefore a new six-year period commenced with the filing of this case. Pltfs’ Affirm, in
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Opposition to Defs’ Motion for Summary Judgment, Second Action, NYSCEF Doc. 60, at ¶¶30-
32.
FAPA expressly forbids the “de-acceleration” ploy that had become a popular means of
evading the six-year limit prior to its enactment. FAPA amended CPLR §203, which addresses
methods of computing the accrual of a claim for determining the statute of limitations, by adding a
new section:
Once a cause of action upon an instrument described in subdivision four of section two
hundred thirteen of this article [i.e. a mortgage loan] has accrued, no party may, in form or
effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or
otherwise purport to effect a unilateral extension of the limitations period prescribed by law
to commence an action and to interpose the claim, unless expressly prescribed by statute.
CPLR §203(h)
Plaintiff’s “de-acceleration” notice was a transparent attempt to “unilaterally … reset the
accrual” of its foreclosure claim by purporting to nullify the 2011 acceleration with its “de-
acceleration.”
FAPA’s legislative intent, as evidenced by its Senate sponsor’s Memorandum in Support,
was to prohibit a plaintiff from unilaterally de-accelerating a loan as a means of evading the six-
year limit:
In the context of actions commenced against real property owners,
mortgagors, and borrowers, including foreclosure actions . . . a lender’s unilateral
“de-acceleration” of a mortgage loan, even if permitted under the express terms of
the mortgage, loan document, cannot effectuate “de-accrual” of the cause of action
or otherwise unwind the appliable limitations period under the guise of having been
accomplished by operation of law. Thus [CPLR §203(h)] is added to clarify that a
lender’s unilateral written revocation of its demand for immediate payment in full –
otherwise known as a “de-acceleration” notice or letter [citations omitted] has no
effect in the running of the statute of lionitations nor the expiration thereof.
Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D at 7 (emphasis
supplied).
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c. The 2011 Acceleration Was Not Invalid.
Nor can Plaintiff now retroactively claim that its 2011 acceleration was invalid.
The FAPA amendment to CPLR §213(4)(a) states, in relevant part: “[A] plaintiff shall be
estopped from asserting that the instrument was not validly accelerated, unless the prior action was
dismissed based on an expressed judicial determination, made upon a timely interposed defense,
that the instrument was not validly accelerated.”
No such “judicial determination” has ever been made with respect to Plaintiff’s 2011
acceleration of the subject Mortgage.
a. FAPA Is Retroactive.
FAPA explicitly states that it “takes effect immediately and shall apply to all actions
commenced on an instrument described under [CPLR § 213(4)] in which a final judgment of
foreclosure and sale has not been enforced.” The Genovese court held FAPA was retroactive.
Genovese, at 518 (“Ultimately, the Legislature's goal, expressed in the language of FAPA and its
legislative history, was to see FAPA applied retroactively.”) Because Genovese is the only holding
by an Appellate Department court on the retroactive effect of FAPA, it is binding on this Court.
Mtn. View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984]. See also, Deutsche Bank
Natl. Tr. Co. v Natal, 217 AD3d 835 [2d Dept 2023] (applying CPLR § 213[4] to estop plaintiff
from asserting that the mortgage was not accelerated in 2007), RCPE 1 LLC v. DeBrosse, 217
A.D.3d 999 (2d Dep’t 2023); U.S. Bank N.A. v. Outlaw, 191 N.Y.S.3d 436 (2d Dept 2023); SYCP,
LLC v. Evans, 191 N.Y.S.3d 433 (2d Dept 2023)(applying FAPA retroactively).2
2
Two federal courts applying FAPA reached the same conclusion. East Fork Funding LLC v. U.S. Bank
N.A., 20-cv-3404, 2023 WL 2660645 (E.D.N.Y. Mar. 23, 2023), Windward Bora, LLC v. Sotomayor, 21-cv-7161,
2023 WL 2575582 (S.D.N.Y. Mar. 20, 2023).
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III. The Instant Action was Brought While the Second Action Was Still Pending.
In their Answer, Defendants asserted: “A prior lawsuit is still pending for the foreclosure of
the same mortgage being enforced in this action or for collection of the same mortgage debt,
without leave of the court, in violation of CPLR § 3211(a)(4) and RPAPL §1301.”
CPLR §3211(a)(4) provides that a party may move for judgment dismissing one or more
causes of action asserted against him on the ground that: “there is another action pending between
the same parties for the same cause of action in a court of any state or the United States; the court
need not dismiss upon this ground but may make such order as justice requires.” RPAPL §1301(3)
restates the same prohibition. 3
Plaintiff filed the instant action on June 15, 2023, while its appeal of the Second Action
was still pending. Plaintiff’s motion to withdraw the appeal was not granted until June 28, 2023.
See, Ex. D to Bedell Affirm.
This provides another reason for dismissal.
VI. The Mortgage Must Be Cancelled.
Defendants have also met their burden for judgment on his counterclaim cancelling and
discharging the Mortgage, pursuant to RPAPL § 1501(4). That statute provides that “[w]here the
period allowed by the applicable statute of limitation for the commencement of an action to
foreclose a mortgage . . . has expired,” an action may be maintained by any person having an estate
or interest in the subject real property to “secure the cancellation and discharge of record of such
encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free
therefrom” regardless of whether the debt has been paid, provided the mortgagee or its successor
was not in possession of said property at the commencement of the action. (RPAPL § 1501[4].)
3
Plaintiff has also breached the requirement of RPAPL §1301(2) (“The complaint shall state whether any
other action has been brought to recover any part of the mortgage debt, and, if so, whether any part has been
collected.”) Plaintiff’s Complaint is devoid of any mention of either the First Action or the Second Action.
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Because the statute of limitations has expired, Defendants have an estate in the Property, and
brought a counterclaim pursuant to RPAPL § 1501(4), and the Plaintiff was not in possession of
the Property on the date this action commenced, Defendants are entitled to an order cancelling and
discharging the Mortgage of record. See, Bedell Affirmation in Support, ¶¶ 4-5.
The FAPA amendment to CPLR § 213 also forbids Plaintiff from claiming its 2011
acceleration was invalid in the mortgage discharge context:
(b) In any action seeking cancellation and discharge of record of an instrument described
under subdivision four of section fifteen hundred one of the real property actions and
proceedings law, a defendant shall be estopped from asserting that the period allowed by
the applicable statute of limitation for the commencement of an action upon the instrument
has not expired because the instrument was not validly accelerated prior to, or by way of
commencement of a prior action, unless the prior action was dismissed based on an
expressed judicial determination, made upon a timely interposed defense, that the
instrument was not validly accelerated.
CPLR §213(4)(b).
IV. An Award of Legal Fees is Appropriate.
Finally, Defendants are entitled to judgment on their second counterclaim awarding them
attorneys’ fees pursuant to RPL § 282 because, as detailed below, they should prevail on their
argument that the statute of limitations not only bars this action, but that the mortgage should be
discharged. This result qualifies as a “successful defense of any action or proceeding commenced
by the mortgagee against the mortgagor arising out of the [mortgage] contract” (RPL § 282[1]),
and entitles Defendants to reasonable attorneys’ fees and costs under that statute. .
In their Answer to the Complaint, Defendants asserted that they are entitled to attorneys’
fees in defending the action pursuant to RPL § 282(6.) Defendants have been represented by the
Legal Aid Society throughout this action (NYSCEF Doc. No. 15), as well as the First Action and
the Second Action. And it is long been the rule in New York State that awards of attorneys’ fees
are appropriate even if a party’s counsel “is a publicly funded legal service organization.” (Matter
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of Johnson v Blum, 58 NY2d 454 [1983]; Maplewood Mgt., Inc. v Best, 143 AD2d 978, 979 [2d
Dept 1988] [collecting cases].)
The Second Department has held repeatedly that defendants in mortgage foreclosure
actions are entitled to attorneys’ fees pursuant to RPL § 282 where defendants prevail on a statute
of limitations defense. (21st Mtge. Corp., etc. v Nweke, 165 AD3d 616, 619 [2d Dept 2018];
Deutsche Bank Natl. Tr. Co. v Gordon, 179 AD3d 770, 773-74 [2d Dept 2020] [holding that since
“the defendant has succeeded in her defense against the plaintiff's action to foreclose the mortgage,
she is entitled to attorneys' fees and expenses pursuant to Real Property Law § 282”].)
Attorney’s fees are especially appropriate in cases where the plaintiff has repeatedly filed
actions seeking the same relief. The fact that Plaintiff filed this third action after FAPA’s
enactment, which law is expressly designed to prevent such repeated depletion of the Defendants’
and the Court’s resources, makes attorney’s fees all the more appropriate. In total, there are so far
288 docket entries in the three foreclosure cases Plaintiff has brought against Defendants.
Accordingly, this Court should award attorneys’ fees to Defendant in an amount to be
determined by hearing, if necessary.
CONCLUSION
Statutes of limitation serve an essential public policy, as recognized by the Court of
Appeals nearly fifty years ago. “The statutes [of limitation] embody an important policy of giving
repose to human affairs. The primary consideration underlying such legislation is undoubtedly one
of fairness to the defendant. There comes a time when he ought to be secure in his reasonable
expectation that the slate has been wiped clean of ancient obligations.” (Flanagan v. Mt. Eden
Gen. Hosp., 24 NY2d 427, 429 [1969] [citations and internal quotations omitted].)
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Because of this, and for all the foregoing reasons in this memorandum of law, this Court
should enter an Order granting Defendants’ Motion for Summary Judgment dismissing the
complaint and granting Defendants’ judgment on their counterclaims cancelling and discharging
the subject mortgage as barred by the statute of limitations, and for attorneys’ fees along with such
other relief that this Court finds just, proper, and equitable.
Dated New City, New York
January 19, 2024
Respectfully submitted,
Legal Aid Society of Rockland County, Inc.
Benjamin B Bedell___________
BY: Benjamin B. Bedell
Legal Aid Society of Rockland County, Inc.
2 Congers Road
New City, NY 10956
(845) 634-3627
Attorneys for Defendants
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CERTIFICATION PURSUANT TO 22 NYCRR 202.8(b)(a)(i-ii)
I, Benjamin B. Bedell, an attorney duly licensed to practice law in the courts of the State of
New York, certifies, under penalty of perjury and pursuant to CPLR § 2106, that the foregoing
affirmation, exclusive of the caption and signature block, contains 4,123 words and is in
compliance with the word count limit set forth in 22 NYCRR 202.8(b)(a)(i-ii), and this Court’s
Part Rules.
Benjamin B. Bedell
Benjamin B, Bedell
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FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------- X U.S. Bank National Association, as trustee, on : Index No. 032706/2023 behalf of the holders of the Asset Backed Securities Corporation Home Equity Loan Trust, : Return date: Series MO 2006-HE6 Asset Backed Pass-Through February 12, 2024 Certificates, Series MO 2006-HE6, : MEMORANDUM OF LAW Plaintiff, : IN SUPPORT OF v. DEFENDANTS’ MOTION : FOR SUMMARY Helen Papanikolaw a/k/a Helen G. Papanikolaw, JUDGMENT DISMISSING James G. Papanikolaw a/k/a James Papanikolaw, : THE COMPLAINT AND Midland Funding LLC, Equable Ascent Financial GRANTING JUDGMENT LLC, Winthrop Capital LLC, Portfolio Recovery ON DEFENDANTS’ Associates LLC, Rockland Woods Inc., Midland COUNTERCLAIM Funding LLC a/s/i/i to Chase Account and “JOHN CANCELLING AND DOE #1” through “JOHN DOE #12,” the last DISCHARGING THE twelve names being fictitious and unknown to MORTGAGE AS BARRED Plaintiff, the person or parties intended being the BY THE STATUTE OF tenants, occupants, persons or corporations, if any, LIMITATIONS. AND FOR having or claiming an interest in or lien upon the LEGAL FEES premises being foreclosed herein, Defendants. Hon. Thomas P. Zugibe, J.S.C. ------------------------------------------------------------------- X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMPLAINT AND GRANTING JUDGMENT ON DEFENDANTS’ COUNTERCLAIM CANCELLING AND DISCHARGING THE MORTGAGE AS BARRED BY THE STATUTE OF LIMITATIONS. AND FOR LEGAL FEES Defendants Helen Papanikolaw and James Papanikolaw, (“Defendants”), by their counsel, the Legal Aid Society of Rockland County, Inc. (“Legal Aid Society”), hereby respectfully move for an order dismissing the complaint in this action and granting judgment on Defendants’ counterclaim cancelling and discharging the subject Mortgage as barred by the Statute of 1 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 Limitations pursuant to RPAPL § 1501(4), as set forth in Defendants’ Verified Answer (the “Answer”) NYSCEF Doc. No. 17, pp 1, 4. The Legal Aid Society is also entitled to summary judgment awarding it legal fees, as demanded in Defendants’ second counterclaim set forth in their Answer. Answer, p. 7. This Motion should be granted because the statute of limitations has expired by reason of the subject mortgage’s acceleration by Plaintiff on July 28, 2011. The acceleration was affected by the complaint in the action captioned U.S. Bank National Association v. Helen Papanikolaw. James G. Papanikolaw, et al., Index No. 031323/2011 (the “First Action”). Complaint, First Action, NYSCEF Doc. No. 1. The acceleration date was a date over six years prior to the commencement of this action on June 15, 2023. The last day on which this action could have been validly commenced was July 27, 2017. This action is therefore barred by CPLR § 213(4) which requires that any action on a bond or mortgage must be commenced within six years after acceleration, subject to any tolling periods and that the acceleration has not been expressly held by a court to have been invalid. The 2011 acceleration has never been judicially determined to be invalid and no tolls apply after the accrual of the claim. The acceleration was not revoked pursuant to CPLR § 203(h), which requires that, for an action upon a mortgage of real property, or any interest therein, which this action is, “no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute.” (CPLR § 203[h].) Nor was it revoked or tolled by any discontinuance of the two prior foreclosure actions by virtue of CPLR § 3217(e). That statute provides that, for an action upon a mortgage of real property, or any interest therein, which this action is, “the voluntary discontinuance of such -2- 2 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute...” (CPLR § 3217[e].) Accordingly, because more than six years elapsed, and there are no applicable tolls, since the acceleration of the mortgage, and the acceleration was never held to be invalid or revoked in a way conforming with statute, the statute of limitations, pursuant to CPLR § 213(4), has expired. Therefor this case must be dismissed, and, by operation of RPAPL § 1501(4), the subject mortgage should be cancelled and discharged of record. Legal fees must also be awarded. Because Plaintiff has not filed aa reply to Defendants’ statute of limitations defenses and mortgage discharge and legal fee counterclaims, and the time to file such a reply has expired, this motion can be granted on default. If the Court declines to do so, the facts and the law, as well as equity, require this now twelve-and-a-half-year war of attrition Plaintiff has waged against Defendants be brought to an end. FACTS This is Plaintiff’s third bite at the apple. FIRST ACTION The First Action was commenced on July 28, 2011. The Complaint in that action states: Plaintiff, the owner and holder of the aforementioned Note and Mortgage, or their agents have elected and hereby accelerate the mortgage and declare the entire mortgage indebtedness due and payable. Complaint, NYSCEF Doc. No. 1, at p.10. Accordingly, Plaintiff validly accelerated the subject mortgage. Defendants appeared and filed an answer in the First Action. After the case was released from settlement conferences, it lay dormant for over five years. It was dismissed on November 17, -3- 3 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 2016 when the court granted Defendants’ motion to dismiss for failure to prosecute pursuant to CPLR §3216. NYSCEF Doc. No. 57.1 Plaintiff filed a Notice of Appeal on December 29, 2016, NYSCEF Doc. No. 57, only to withdraw it a few months later. SECOND ACTION Rather than prosecute the appeal of the First Action, Plaintiff filed its second action on March 14, 2018, again seeking to foreclosure the subject mortgage, U.S. Bank N.A. v. Helen Papanikolaw and James Papanikolaw et.al., Index No. 031424/2018 (the “Second Action”). Defendants appeared and filed an answer asserting a statute of limitations defense and a discharge counterclaim. NYSCEF Doc. No. 28. Defendants filed a motion for summary judgment to dismiss and for discharge. NYSCEF Doc. No. 35. Plaintiffs responded with a cross-motion for summary judgment. NYSCEF Doc. No. 59. Plaintiff’s motion was predicated primarily on a purported “notice of de-acceleration” issued on April 10, 2017, 87 days before the statute of limitations triggered by the 2011 acceleration was due to expire. Pltfs’ Affirm. in Opposition to Defs’ Motion for Summary Judgment, Second Action, NYSCEF Doc. 60, at ¶¶30-32; Pltf’s Memo of Law, NYSCEF Docs. No. 84, at pp. 10-11. Plaintiff’s motion was denied and Defendants was granted by Decision and Order on January. 2, 2019. NYSCEF No. 90. Plaintiff moved to renew and reargue. NYSCEF Doc. No. 97. The motion was denied on July 8, 2019. NYSCEF Doc. No. 133. 1 While the First Action was pending, Plaintiff filed yet another proceeding, seeking a declaration as to the validity of the Mortgage and to compel Defendants to execute a new deed in order to correct alleged defects in the original deed. U.S. Bank N.A. v. Papanikolaw, Index No. 34456/2015. After Plaintiff’s motion for summary judgment was denied, except as to confirming the identity of Helen Papanikolaw, Plaintiff abandoned the action. -4- 4 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 Plaintiff appealed those orders to the Appellate Division, which ruled in its favor, holding that the de-acceleration notice was valid, and reversing the dismissal of the Second Action. U.S. Bank N.A. v Papanikolaw, 197 AD3d 767 [2d Dept 2021]. Before a foreclosure sale was affected, however, the Second Department decided Bank of Am., N.A. v Kessler, 202 AD3d 10 [2d Dept 2021], rev’d, 39 NY3d 317 [2023]. Prior to Kessler being overruled by the Court of Appeals, Defendants filed an opposition to Plaintiff’s motion for a Judgment of Foreclosure and Sale. NYSCEF Doc. No. 200. Supreme Court again dismissed the Second Action, this time for Plaintiff’s failure to adhere to the “separate envelope rule” set forth in Kessler. NYSCEF Doc. No. 204. Plaintiff again filed a Notice of Appeal, NYSCEF Doc. No. 207, which it subsequently moved to withdraw. The Appellate Division, Second Department, granted the motion to withdraw the appeal on June 29, 2023. Prior to the Second Department’s grant of the motion to withdraw the Second Action, Plaintiff commenced this action on June 15, 2023. Two Judges of the Rockland County Supreme Court have issued three rulings against Plaintiff in the two prior foreclosure actions over the past decade, citing its dilatory and duplicitous conduct: 1. “This matter has been substantively neglected since in or about May 2012 when the last court conference was held. Plaintiff's excuse . . . fails to address the otherwise 'foot- dragging' on Plaintiff's part and its failure to move the case forward.” Order granting Respondent’s Motion to Dismiss. First Action, NYSCEF Doc. No. 56, at 2. (Alfieri, J.S.C.,) 3. “[T]his Court [cannot] ignore plaintiff’s unexplained and inexplicable pattern of delay and apparent gaming of both defendants and the Court. This Court reiterates what the Court of Appeals held 50 years ago: ‘there comes a time when [a defendant] ought to be secure in his [or her] reasonable expectation that the slate has been wiped clean of ancient obligations.’ Seven and a -5- 5 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 half years and three actions later, now is that time for defendants.” Dismissal Order, Second Action, NYSCEF Doc. No. 90, at 16-17. (P. Marx, J.S.C) 4. Plaintiff’s claim it validly de-accelerated the loan is “farcical”, “chicanery” and “[t]here is nothing inequitable about a Court, such as this one, demanding that parties prosecute actions diligently and honestly. In this case, plaintiff has done neither. Equity, therefore, required that the Court bring an end to plaintiff's duplicitous and misguided efforts at foreclosure.” Order Denying Appellants Motion to Renew and Reargue, Second Action, NYSCEF Doc. No, 128, at 9. (P. Marx, J.S.C.) ARGUMENT I. The Six-year Statute of Limitations Has Run. Summary judgment in favor of Defendants is appropriate here because Defendants have met their prima facie burden of showing that the statute of limitations has run. An action to foreclose a mortgage may be brought to recover only those unpaid sums which were due within the six-year period immediately preceding the commencement of the action. (CPLR § 213[4]; Wells Fargo Bank, N.A. v. Burke, 94 AD3d 980, 982 [2d Dept 2012].) “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.” (Burke, 94 AD3d at 982.) “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.” (Id.) Upon the mortgage debt being accelerated, “the borrowers’ right and obligation to make monthly installments cease[s] and all sums become immediately due and payable.” (Fed Nat’l Mtge Ass’n v. Mebane, 208 AD2d 892, 894 [2d Dept 1994].) As set forth above, Plaintiff accelerated the loan in 2011 upon the filing of the First Action. Significantly, the Complaint in the instant action, nor any of the other of Plaintiff’s pleadings does not contain a statement that the subject loan is being accelerated. That is because the loan had already been accelerated in 2011 upon the filing of the First Action. -6- 6 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 In order to successfully oppose this Motion for Summary Judgment, Plaintiff must produce evidentiary proof in admissible form establishing that a triable issue of material fact exists that the Mortgage was never accelerated or, if it was, the applicable statute of limitations was tolled, revoked, or is otherwise inapplicable, as opposed to mere conclusions, hope, unsubstantiated allegations, or assertions. (Williams v. New York City Health and Hospitals Corp., 84 AD 3d 1358, 1359 [2d Dept. 2011]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). II. Plaintiff Is Estopped by FAPA From Claiming the Prior Cases Tolled the Limitations Period, or That Plaintiff’s ‘De-Acceleration’ of the Loan Allows It to Restart the Six-Year Period with This Action, or That the 2011 Acceleration was Invalid. The Foreclosure Abuse Prevention Act, (L 2022, ch 821), which took effect December 30, 2022 (hereinafter, “FAPA”), prevents a tolling of the statute of limitations on account of prior cases that were dismissed due to a plaintiff’s dilatory conduct or voluntary withdrawal of a prior case, and prohibits a “de-acceleration” from allowing a plaintiff to restart the limitations period. As explained by the First Department’s recent holding in Genovese v Nationstar Mtge. LLC, 199 NYS3d 513 [1st Dept 2023] (“Genovese”): FAPA represents the Legislature's response to litigation strategies and certain legal principles that distorted the operation of the statute of limitations in foreclosure actions (Assembly Mem in Support of 2022 Assembly Bill A7737B, L2022, ch 821 at 1; Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D at 1). “The legislature [found] that there is an ongoing problem with abuses of the judicial foreclosure process and lenders' attempts to manipulate statutes of limitations; that the problem has been exacerbated by recent court decisions which, contrary to the intent of the legislature, have given mortgage lenders and loan servicers opportunities to avoid strict compliance with remedial statutes and manipulate statutes of limitations to their advantage; and that the purpose of [FAPA] is to clarify the meaning of existing statutes, and to rectify these erroneous judicial interpretations thereof” (Assembly Mem in Support of 2022 Assembly Bill A7737B, L2022, ch 821 at 1). FAPA's aim: “to thwart and eliminate abusive and unlawful litigation tactics that have been adopted and pursued in mortgage foreclosure actions to manipulate the law and judiciary to yield to expediency and the convenience of mortgage banking and servicing institutions at the expense of -7- 7 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 the finality and repose that statutes of limitations are meant to ensure” (id.; see also Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D at 1). Genovese, at 514. Plaintiff filed this case five and a half months after FAPA’s enactment. a. Plaintiff Is Estopped from Arguing That Either the Dismissal of the First Action or the Discontinuance of the Second Action Tolled the Statute of Limitations. Defendants moved to dismiss the First Action for failure to prosecute under CPLR § 2316. NYSCEF No. 26. The motion was granted by Decision and Order dated November 17, 2016. As noted above, the court expressly found that “[t]his matter has been substantively neglected since in or about May 2012 when the last court conference was held.” First Action, NYSCEF Doc. No. 56. At 2. FAPA amended CPLR §205-a, the “six-month savings provision,” to preclude its use by a plaintiff where there was a “dismissal of the complaint for any form of neglect.” Since the First Action was dismissed due to neglect, Plaintiff could not avail itself of the six-month savings clause. Instead, it waited until March 14, 2018, fully one year and four months later, to file the Second Action. The record is devoid of the Second Action being either voluntarily discontinued or dismissed. Plaintiff merely abandoned its appeal. b. Plaintiff is Estopped From Claiming That Its Purported ‘De-Acceleration’ of the Mortgage Loan Reset the Statute of Limitations. Plaintiff, in prior attempts to circumvent the statute of limitations, has argued that it “de- accelerated” the loan on April 10, 2017 by sending a “Notice of De-Acceleration” to Defendants, and therefore a new six-year period commenced with the filing of this case. Pltfs’ Affirm, in -8- 8 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 Opposition to Defs’ Motion for Summary Judgment, Second Action, NYSCEF Doc. 60, at ¶¶30- 32. FAPA expressly forbids the “de-acceleration” ploy that had become a popular means of evading the six-year limit prior to its enactment. FAPA amended CPLR §203, which addresses methods of computing the accrual of a claim for determining the statute of limitations, by adding a new section: Once a cause of action upon an instrument described in subdivision four of section two hundred thirteen of this article [i.e. a mortgage loan] has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute. CPLR §203(h) Plaintiff’s “de-acceleration” notice was a transparent attempt to “unilaterally … reset the accrual” of its foreclosure claim by purporting to nullify the 2011 acceleration with its “de- acceleration.” FAPA’s legislative intent, as evidenced by its Senate sponsor’s Memorandum in Support, was to prohibit a plaintiff from unilaterally de-accelerating a loan as a means of evading the six- year limit: In the context of actions commenced against real property owners, mortgagors, and borrowers, including foreclosure actions . . . a lender’s unilateral “de-acceleration” of a mortgage loan, even if permitted under the express terms of the mortgage, loan document, cannot effectuate “de-accrual” of the cause of action or otherwise unwind the appliable limitations period under the guise of having been accomplished by operation of law. Thus [CPLR §203(h)] is added to clarify that a lender’s unilateral written revocation of its demand for immediate payment in full – otherwise known as a “de-acceleration” notice or letter [citations omitted] has no effect in the running of the statute of lionitations nor the expiration thereof. Senate Introducer's Mem in Support of 2022 NY Senate Bill S5473D at 7 (emphasis supplied). -9- 9 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 c. The 2011 Acceleration Was Not Invalid. Nor can Plaintiff now retroactively claim that its 2011 acceleration was invalid. The FAPA amendment to CPLR §213(4)(a) states, in relevant part: “[A] plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.” No such “judicial determination” has ever been made with respect to Plaintiff’s 2011 acceleration of the subject Mortgage. a. FAPA Is Retroactive. FAPA explicitly states that it “takes effect immediately and shall apply to all actions commenced on an instrument described under [CPLR § 213(4)] in which a final judgment of foreclosure and sale has not been enforced.” The Genovese court held FAPA was retroactive. Genovese, at 518 (“Ultimately, the Legislature's goal, expressed in the language of FAPA and its legislative history, was to see FAPA applied retroactively.”) Because Genovese is the only holding by an Appellate Department court on the retroactive effect of FAPA, it is binding on this Court. Mtn. View Coach Lines, Inc. v Storms, 102 AD2d 663 [2d Dept 1984]. See also, Deutsche Bank Natl. Tr. Co. v Natal, 217 AD3d 835 [2d Dept 2023] (applying CPLR § 213[4] to estop plaintiff from asserting that the mortgage was not accelerated in 2007), RCPE 1 LLC v. DeBrosse, 217 A.D.3d 999 (2d Dep’t 2023); U.S. Bank N.A. v. Outlaw, 191 N.Y.S.3d 436 (2d Dept 2023); SYCP, LLC v. Evans, 191 N.Y.S.3d 433 (2d Dept 2023)(applying FAPA retroactively).2 2 Two federal courts applying FAPA reached the same conclusion. East Fork Funding LLC v. U.S. Bank N.A., 20-cv-3404, 2023 WL 2660645 (E.D.N.Y. Mar. 23, 2023), Windward Bora, LLC v. Sotomayor, 21-cv-7161, 2023 WL 2575582 (S.D.N.Y. Mar. 20, 2023). - 10 - 10 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 III. The Instant Action was Brought While the Second Action Was Still Pending. In their Answer, Defendants asserted: “A prior lawsuit is still pending for the foreclosure of the same mortgage being enforced in this action or for collection of the same mortgage debt, without leave of the court, in violation of CPLR § 3211(a)(4) and RPAPL §1301.” CPLR §3211(a)(4) provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that: “there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires.” RPAPL §1301(3) restates the same prohibition. 3 Plaintiff filed the instant action on June 15, 2023, while its appeal of the Second Action was still pending. Plaintiff’s motion to withdraw the appeal was not granted until June 28, 2023. See, Ex. D to Bedell Affirm. This provides another reason for dismissal. VI. The Mortgage Must Be Cancelled. Defendants have also met their burden for judgment on his counterclaim cancelling and discharging the Mortgage, pursuant to RPAPL § 1501(4). That statute provides that “[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired,” an action may be maintained by any person having an estate or interest in the subject real property to “secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom” regardless of whether the debt has been paid, provided the mortgagee or its successor was not in possession of said property at the commencement of the action. (RPAPL § 1501[4].) 3 Plaintiff has also breached the requirement of RPAPL §1301(2) (“The complaint shall state whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part has been collected.”) Plaintiff’s Complaint is devoid of any mention of either the First Action or the Second Action. - 11 - 11 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 Because the statute of limitations has expired, Defendants have an estate in the Property, and brought a counterclaim pursuant to RPAPL § 1501(4), and the Plaintiff was not in possession of the Property on the date this action commenced, Defendants are entitled to an order cancelling and discharging the Mortgage of record. See, Bedell Affirmation in Support, ¶¶ 4-5. The FAPA amendment to CPLR § 213 also forbids Plaintiff from claiming its 2011 acceleration was invalid in the mortgage discharge context: (b) In any action seeking cancellation and discharge of record of an instrument described under subdivision four of section fifteen hundred one of the real property actions and proceedings law, a defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated. CPLR §213(4)(b). IV. An Award of Legal Fees is Appropriate. Finally, Defendants are entitled to judgment on their second counterclaim awarding them attorneys’ fees pursuant to RPL § 282 because, as detailed below, they should prevail on their argument that the statute of limitations not only bars this action, but that the mortgage should be discharged. This result qualifies as a “successful defense of any action or proceeding commenced by the mortgagee against the mortgagor arising out of the [mortgage] contract” (RPL § 282[1]), and entitles Defendants to reasonable attorneys’ fees and costs under that statute. . In their Answer to the Complaint, Defendants asserted that they are entitled to attorneys’ fees in defending the action pursuant to RPL § 282(6.) Defendants have been represented by the Legal Aid Society throughout this action (NYSCEF Doc. No. 15), as well as the First Action and the Second Action. And it is long been the rule in New York State that awards of attorneys’ fees are appropriate even if a party’s counsel “is a publicly funded legal service organization.” (Matter - 12 - 12 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 of Johnson v Blum, 58 NY2d 454 [1983]; Maplewood Mgt., Inc. v Best, 143 AD2d 978, 979 [2d Dept 1988] [collecting cases].) The Second Department has held repeatedly that defendants in mortgage foreclosure actions are entitled to attorneys’ fees pursuant to RPL § 282 where defendants prevail on a statute of limitations defense. (21st Mtge. Corp., etc. v Nweke, 165 AD3d 616, 619 [2d Dept 2018]; Deutsche Bank Natl. Tr. Co. v Gordon, 179 AD3d 770, 773-74 [2d Dept 2020] [holding that since “the defendant has succeeded in her defense against the plaintiff's action to foreclose the mortgage, she is entitled to attorneys' fees and expenses pursuant to Real Property Law § 282”].) Attorney’s fees are especially appropriate in cases where the plaintiff has repeatedly filed actions seeking the same relief. The fact that Plaintiff filed this third action after FAPA’s enactment, which law is expressly designed to prevent such repeated depletion of the Defendants’ and the Court’s resources, makes attorney’s fees all the more appropriate. In total, there are so far 288 docket entries in the three foreclosure cases Plaintiff has brought against Defendants. Accordingly, this Court should award attorneys’ fees to Defendant in an amount to be determined by hearing, if necessary. CONCLUSION Statutes of limitation serve an essential public policy, as recognized by the Court of Appeals nearly fifty years ago. “The statutes [of limitation] embody an important policy of giving repose to human affairs. The primary consideration underlying such legislation is undoubtedly one of fairness to the defendant. There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations.” (Flanagan v. Mt. Eden Gen. Hosp., 24 NY2d 427, 429 [1969] [citations and internal quotations omitted].) - 13 - 13 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 Because of this, and for all the foregoing reasons in this memorandum of law, this Court should enter an Order granting Defendants’ Motion for Summary Judgment dismissing the complaint and granting Defendants’ judgment on their counterclaims cancelling and discharging the subject mortgage as barred by the statute of limitations, and for attorneys’ fees along with such other relief that this Court finds just, proper, and equitable. Dated New City, New York January 19, 2024 Respectfully submitted, Legal Aid Society of Rockland County, Inc. Benjamin B Bedell___________ BY: Benjamin B. Bedell Legal Aid Society of Rockland County, Inc. 2 Congers Road New City, NY 10956 (845) 634-3627 Attorneys for Defendants - 14 - 14 of 15 FILED: ROCKLAND COUNTY CLERK 01/19/2024 02:26 PM INDEX NO. 032706/2023 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 01/19/2024 CERTIFICATION PURSUANT TO 22 NYCRR 202.8(b)(a)(i-ii) I, Benjamin B. Bedell, an attorney duly licensed to practice law in the courts of the State of New York, certifies, under penalty of perjury and pursuant to CPLR § 2106, that the foregoing affirmation, exclusive of the caption and signature block, contains 4,123 words and is in compliance with the word count limit set forth in 22 NYCRR 202.8(b)(a)(i-ii), and this Court’s Part Rules. Benjamin B. Bedell Benjamin B, Bedell - 15 - 15 of 15