Preview
FILED: WESTCHESTER COUNTY CLERK 02/13/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
___________________________________X Index No.
MARK BARASCH and ELLEN BARASCH
Plaintiffs,
SUMMONS
- against -
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS The basis of the Venue is:
TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, Location of The Subject Property
SERIES 2004-OPTl, ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-OPT1; BANCO POPULAR
NORTH AMERICA; MARC VERZANI; US INTERNAL
REVENUE SERVICE; NYS TAX COMMISSION
Defendants.
___________________________________X
To the above-named Defendants:
PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED to appear in this action by
serving a notice of appearance on the Plaintiff(s) at the address set forth below within 20 days after
the service of this Summons (not counting the day of service itself), or within 30 days after service
is complete if the summons is not delivered personally to you within the State of New York.
YOU ARE HEREBY NOTIFIED THAT should you fail to answer or appear, a judgment will be
entered against you by default for the relief herein sought.
D d: April 25, 20 & appaqua, NY
ark Barasch and Barasch
Pro Se Plaintiffs
39 Major Lockwood Lane
Pound Ridge, New York 10576
TO: Wells Fargo National Association c/o PHH Mortgage Services. Internal Revenue Service
c/o Corporation Service Company 86 Chambers Street
80 State Street NY, NY 10007
Albany, NY 12207-2543
Banco Popular New York Department of Taxation and Finance
85 Broad Street Building 9, W.A. Harriman Campus
NY, NY 10004 Albany, NY 12227
Marc Verzani
11 Elena Drive
Cortlandt Manor, NY
NOTICE: The nature of this action is: Quiet Title and remove any existing cloud(s) therefrom. Pursuant to 22 NYCRR 130-1.1, the
undersigned, one of the individual Pro Se Plaintiffs, certifies that, upon information and belief and reasonable inquiry, the
contentio con d in the annexed document are not frivolous.
By: Dated:
Mark Barasch, o Se Plaintiff
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
________________________X
MARK BARASCH and ELLEN BARASCH
Plaintiffs,
- - against -
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS
TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST,
SERIES 2004-OPTl, ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-OPT1; BANCO POPULAR
NORTH AMERICA; MARC VERZANI; US INTERNAL
REVENUE SERVICE; NYS TAX COMMISSION
Defendants.
___________________________________X
SUMMONS
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _X Index No.
MARK BARASCH and ELLEN BARASCH
Plaintiffs,
VERIFIED
- against - COMPLAINT
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS
TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST,
SERIES 2004-OPTl, ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2004-OPT1; BANCO POPULAR
NORTH AMERICA; MARC VERZANI; US INTERNAL
REVENUE SERVICE; NYS TAX COMMISSION
Defendants.
___________________________________X
Come now Plaintiffs Mark Barasch and Ellen Barasch, representing themselves Pro Se and filing
the Instant Verified Complaint to Quiet Title to the subject Property in question and against all of
the Defendants herein, and stating:
1) This is an action to quiet title to real property owned by Plaintiffs in fee simple and
located at 39 Major Lockwood Lane; Pound Ridge, New York 10576 (the “Property”),
and more fully described in the Deed attached hereto as
“that certain plot, piece or parcel of land… in the Town of Pound Ridge, County
of Westchester and State of New York known and designated as Section 21,
Block 9816, Lot No. 93” (“Deed to 39 Major Lockwood Lane” EXHIBIT 1).
2) This action is brought under New York Real Property Actions and Proceedings Law RPAPL §
1515 with reliance on CPLR 213.
3) At all times relevant to this action, Plaintiffs have owned the Property.
4) Plaintiffs obtained title to the Property as follows: the Property was purchased by
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Plaintiffs from Shirlee Stokes on or about November 6, 1998 and is owned in fee simple
(“Deed to Major Lockwood Lane with Conveyance Papers” EXHIBIT 1).
5) The Property is located within the County of Westchester, State of New York with an
address of 39 Major Lockwood Lane; Pound Ridge, NY 10576.
I. DEFENDANTS
6) Defendant Wells Fargo Bank NA (“Fargo”), upon information and belief is a
corporation with headquarters located at, 101 N. Phillips Avenue; Sioux Falls, SD 57104.
7) Fargo’s Servicer is PHH Mortgage Services, with headquarters located at 1 Mortgage
Way, Mount Laurel, NJ 08054.
8) Fargo’s claimed lien on the property is adverse to Plaintiffs.
9) Fargo’s claims are without any right whatsoever and defendant has no valid estate right,
title, lien or interest whatsoever in or to the property or to any part thereof.
10) Fargo’s claims are based on an unenforceable mortgage alleged to have been executed on
or about June 11, 2004 (The Fargo Mortgage, EXHIBIT 2) and later assigned to
defendant Fargo (The Fargo Assignment, EXHIBIT 3).
11) Such alleged mortgage is unenforceable based on the expiration of the Statute of
Limitations as per CPLR 213.
12) Fargo filed its First Foreclosure Action regarding The Fargo Mortgage on July 7, 2009
(“First Foreclosure Action Complaint”, Westchester County 15327-09, EXHIBIT 9).
13) The First Foreclosure Action accelerated the Fargo Mortgage and underlying Fargo Note,
and triggered the running of the six-year Statute of Limitations.
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14) The First Foreclosure Action was dismissed on September 26, 2013 by Order of Justice
William Giacomo (Order, Giacomo, J., September 26, 2013, the “First Foreclosure
Action Dismissal Order”, EXHIBIT 10).
15) The Statute of Limitations, was not tolled, extended by court order, or by the affirmative
action or assent of any party, and therefore expired on July 7, 2015.
16) However, as explained below in paragraphs 37-52, this chronological fact required
several more years to clarify and confirm.
17) Defendant Banco Popular North America (“Banco”), upon information and belief is a
corporation with offices located at 85 Broad Street; New York, New York 10004.
18) Banco’s claimed lien on the property is adverse to Plaintiffs.
19) Banco’s claims are without any right whatsoever and defendant has no valid estate right,
title, lien or interest whatsoever in or to the property or to any part thereof.
20) Banco’s claims are based on an unenforceable mortgage executed on or about June 22,
2004 (The Banco Mortgage, First Foreclosure Action 5).
21) The Banco Mortgage was established solely to cross-collateralize two underlying notes
entered into by Plaintiff Mark Barasch’s company, Barasch Sound Studios LLC, with
Mark Barasch as guarantor.
22) The six-year Statute of Limitations regarding these notes began to run at the moment of
the Chapter 11 Bankruptcy filing of Barasch Sound Studios LLC (the debtor) on May 27,
2009, based on the statutory automatic acceleration of all of Barasch Sound Studios
LLC’s debts (Bankruptcy Filing of Barasch Sound Studios with SDNY, EXHIBIT 6).
23) The Statute of Limitations regarding these notes or the Banco Mortgage was not tolled,
extended by court order, or by the affirmative action or assent of any party, and therefore
expired on May 27, 2015.
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24) Defendant Marc Verzani (“Verzani”) is an individual who resides at 11 Elena Drive,
Cortlandt Manor, NY 10567.
25) Plaintiffs and Defendant Verzani entered into a mortgage on or about October 20, 2017
(The Verzani Mortgage, EXHIBIT 8).
26) The Verzani Mortgage has been paid in full and satisfied, and Defendant Verzani claims
no lien on the property.
27) Defendant Verzani has no valid estate right, title, lien or interest whatsoever in or to the
property or to any part thereof.
28) Defendant US Internal Revenue Service (“IRS”) is an agency of the United States
Government, based in Washington, DC and with offices at 86 Chambers Street; NY, NY
10007.
29) IRS is listed herein only because at some time in the past 10 years IRS had a claim
against the Plaintiffs and the Property, based on a prior tax debt and associated lien.
30) However, this debt has been fully satisfied and IRS is no longer stating any claim or
maintaining any lien against the Property.
31) Defendant New York State Tax Commission (“NYS Tax”) is an agency of the State of
New York with offices at: Building 9, W.A. Harriman Campus; Albany, NY 12227
32) NYS Tax is listed herein only because at some time in the past 10 years NYS Tax had a
claim against Plaintiffs and may have had a lien against the Property based on a prior tax
debt.
33) However, this debt has been fully satisfied and NYS Tax is not stating any claim, nor
does it have any lien, against the Property.
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II. RELEVANT FACTS AND HISTORY
REGARDING DEFENDANT FARGO
34) On or about June 11, 2004, Plaintiffs entered into the alleged Fargo Mortgage and
executed an underlying Note thereto in favor of Defendant Fargo’s predecessor in
interest, American Home Mortgage.
35) Plaintiffs later entered into a Consolidated and or Modified Mortgage dated December
20, 2008, executed by Mark Barasch and Ellen Barasch, as Mortgagor(s) to American
Home Mortgage Servicing, Inc., as servicing agent for the Plaintiff, as Mortgagee, to
secure the sum of $728,41 1.33.
36) The foregoing instrument consolidated and/or modified the following mortgage(s):
i) The Mortgage given by Mark Barasch and Ellen Barasch to Option One Mortgage
Corporation to secure the sum of $520,000.00 dated January 31, 2003 and
recorded on May 27, 2003 in Control Number 431350249.
ii) Said Mortgage was then assigned to H&R Block Mortgage Corporation by virtue
of a GAP Assignment of Mortgage executed on June 30, 2009 to be
simultaneously recorded herewith.
iii) A Mortgage was then entered into by Mark Barasch and Ellen Barasch to H&R
Block Mortgage Corporation to secure the sum of $211,197.42 dated June 11,
2004 and recorded on October 20, 2004 in Control Number 442380380.
iv) Said Mortgages were consolidated by virtue of a Consolidation Extension and
Modification Agreement to form a single lien for the amount of $725,000.00
dated, June 11, 2004 and recorded on October 20, 2004 in Control Number
442380392.
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v) Said Mortgage was then assigned to Option One Mortgage Corporation, by virtue
of an Assignment of Mortgage executed on June 30, 2009 to be simultaneously
recorded herewith.
vi) The Note and Mortgage were then assigned by Option One Mortgage Corporation
to Wells Fargo Bank, N.A., as Trustee for Citigroup Mortgage Loan Trust, Series
2004—OPT1, Asset Backed Pass-Through Certificates, and said transfer was
memorialized by an Assignment of Mortgage executed on June 30, 2009 and
recorded October 14, 2009 in Control Number 492710366.
37) As stated above in paragraph 12, Fargo filed The First Foreclosure Action against the
Property and Plaintiffs on July 7, 2009,.
38) In its Complaint, Fargo stated that based on Plaintiffs’ default, the full balance of the
Note was due immediately, thereby accelerating the Mortgage and Note and triggering
the countdown of the six-year Statute of Limitations (First Foreclosure Action Complaint,
Westchester County 15327-09, EXHIBIT 9).
39) On September 25, 2013 the First Foreclosure Action was dismissed by Order of the Court
for Failure to Prosecute (Order, Giacomo, J., September 26, 2013, the “First Foreclosure
Action Dismissal Order with Notice of Entry and Official Transcript”, EXHIBIT 10).
40) Therefore, as stated above, the Statute of Limitations regarding the Fargo Mortgage and
Note was set to expire on July 7, 2015 as per CPLR 213 (4).
41) Not coincidentally however, also on July 7, 2015, (again, the date of the expiration of the
Statute of Limitations regarding the previously accelerated Mortgage and Note), Fargo
filed the Second Foreclosure Action against the Property and Plaintiffs (“The Second
Foreclosure Action Complaint”, Westchester County 61855-15, EXHIBIT 11).
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42) On April 4, 2017 the Second Foreclosure Action was dismissed by the Order of Justice
Lawrence Ecker for Failure to Establish Personal Jurisdiction over Plaintiffs (Order,
Ecker, J. 04/04/17, “The Second Foreclosure Action Dismissal Order with Notice of
Entry”, EXHIBIT 4).
43) This dismissal was affirmed by Justice Ecker on August 17, 2017 when he denied
Fargo’s Motion to Reargue or Renew with The Re-argument Dismissal Order (Order,
Ecker, J. 08/17/17, “The Re-argument Dismissal Order with Notice of Entry”, EXHIBIT
13).
44) This matter was then disposed from the Supreme Court’s calendar (NYSCEF Screenshot
showing Second Foreclosure Action as Disposed from the Court’s Calendar, EXHIBIT
12).
45) On May 10, 2017, Fargo appealed from The Second Foreclosure Action Dismissal Order
(Defendant Fargo’s Notice of Appeal Filing, EXHIBIT 14).
46) On November 12, 2020 Fargo’s appeal was denied by the Second Judicial Dept.,
upholding and affirming the lower court’s prior ruling in dismissing the Second
Foreclosure Action (Order, Second Judicial Dept. Appellate Term, “The Appeal
Dismissal Order with Notice of Entry” 11/12/2020, EXHIBIT 15)
47) Fargo’s claims to the Property had therefore indeed expired upon July 7, 2015, that date
being the sixth anniversary of the filing of the First Foreclosure Action, sixth anniversary
of the acceleration of the Note and Mortgage, and the expiration of the associated six-
year Statute of Limitations regarding the Mortgage.
48) It should be noted that again, as per paragraph 15 above, this Statute of Limitations was
not tolled, extended by court order, or by the affirmative action or assent of any party
within the limitations period.
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49) Fargo’s clear knowledge and understanding of this expiration of the Statute of
Limitations was exposed when Fargo’s own Attorney Matthew Blum admitted and
clarified this fact when questioned by Justice Lawrence Ecker during the Traverse
Hearing held on February 16, 2017:
MR. BLUM: There is a prior action, your Honor…
THE COURT: So the debt that is now in dispute runs from what date to
what date? What is the first date of default?...
MR. BLUM: March 1, 2009, your Honor.
THE COURT: March 1, 2009…
MR. BLUM: The original default date is March 2009…
THE COURT: Tell me how the statute of limitations applies…
MR. BLUM: The statute of limitations applies six years
from the commencement of the first action.
The first action was commenced in 2009… (emphasis added)
THE COURT: Let me pinpoint my question… assume
that the case is dismissed… Are you saying you
lost the opportunity to go back…
MR. BLUM: … that may likely be the case, that we
would be barred by the statute of limitations…
(Excerpted from pages 8-10 of Traverse Hearing Transcript of February 16, 2017
EXHIBIT 19)
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50) Also, at the time of this filing there is no active lawsuit or legal action of any kind
between Plaintiffs and defendant Fargo.
51) As a result of this expiration of the Statute of Limitations, any subsequent foreclosure
action is blocked, the Fargo Mortgage and its underlying Note are unenforceable, and
such Mortgage must therefore be expunged from the record.
REGARDING DEFENDANT BANCO
52) On or about June 22, 2004, Plaintiffs entered into the second-position Banco Mortgage as
cross-collateral for two underlying Notes in favor of Defendant Banco (The Banco
Mortgage, EXHIBIT 5).
53) These underlying Notes were funding vehicles for Plaintiff Mark Barasch’s business,
Barasch Sound Studios, LLC (“BSS”), and such LLC was the borrower.
54) On May 27, 2009, BSS filed for Chapter 11 Bankruptcy protection in the Southern
District of New York (SDNY 09-13407, Voluntary Petition, EXHIBIT 6).
55) This filing automatically accelerated all of BSS’s debts (including the two
aforementioned Notes) and triggered the countdown of the six-year Statute of Limitations
as of that date.
56) In addition, on May 10, 2010, Banco filed a Proof of Claim with the SDNY Bankruptcy
Court in which it stated that the full amount of all outstanding debt was due and owing
(Banco Proof of Claim, EXHIBIT 16).
57) This was a voluntary acceleration made by Banco of all the existing debt owed to Banco
by BSS regarding both of the relevant Notes.
58) The Statute of Limitations regarding any such debts (and specifically the two
aforementioned Notes) therefore expired on May 27, 2015, and if not, then at the very
latest on May 10, 2016.
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59) Banco’s claims to the Property had therefore terminated on or before May 10, 2016 with
the expiration of the Statute of Limitations.
60) It should be noted that again, as per paragraph 22 above, this Statute of Limitations was
not tolled, extended by court order, or by the affirmative action or assent of any party
within the limitations period.
61) It should also be noted that at the time of this filing there is no active lawsuit or legal
action of any kind between Plaintiffs and defendant Banco.
62) As a result of this expiration of the Statute of Limitations, any subsequent foreclosure
action is blocked, the Banco Mortgage is unenforceable, and such Mortgage must
therefore be expunged from the record.
63) In addition, Banco received payment from the United States Small Business
Administration (SBA) based on SBA’s guarantee of Banco’s creditor position, and the
SBA has subsequently entered into a separate unsecured payment plan (with no mortgage
involved for security) directly with Plaintiff Mark Barasch to repay these funds.
64) The debt that Banco’s underlying mortgage stood as security for has therefore been
absolved and liquidated.
65) Also, regardless of the status of the unenforceable Banco Mortgage, it should be also be
noted that Plaintiff Mark Barasch is currently making timely monthly payments directly
to SBA in order to satisfy his personal guarantee related to such alleged mortgage (SBA
Workout Agreements, EXHIBIT 7).
66) Allowing the unenforceable Banco Mortgage to continue to cloud the deed of the
Premises would therefore be a clear case of Double Jeopardy and again, for all the
reasons listed here the Banco Mortgage must therefore be expunged and removed from
the record.
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REGARDING DEFENDANT VERZANI
67) On or about October 20, 2017, Plaintiffs entered into the Verzani Mortgage in favor of
Defendant Verzani.
68) At this time the Verzani Mortage has been fully repaid, and Marc Verzani is not claiming
any interest in the Property.
69) This Mortgage is therefore now a nullity and Marc Verzani is stating no interest, lien or
claim against the Property whatsoever.
REGARDING DEFENDANT IRS
70) IRS had filed certain liens against the Property, but all these liens have been lifted and
released as the debts underlying them have all been satisfied (“IRS Liens and matching
Release filings”, EXHIBIT 17)
71) IRS is no longer stating any claim to the Property and has no lien(s) thereupon.
REGARDING DEFENDANT NYS TAX
72) NYS TAX may have had filed certain liens against the Property at one time, but if so, all
these liens have been lifted and vacated as the debts underlying them have all been
satisfied.
73) NYS TAX is not stating any claim to the Property and has no lien(s) thereupon.
III. FIRST CAUSE OF ACTION:
THE STATUTE OF LIMITATIONS HAS EXPIRED REGARDING BOTH FARGO AND BANCO
74) CPLR 213 (4) reads in relevant part:
The following actions must be commenced within six years:…
4. an action upon a bond or note, the payment of which is secured by a
mortgage upon real property, or upon a bond or note and mortgage so
secured, or upon a mortgage of real property, or any interest therein…
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75) Defendants Fargo and Banco each held an interest in, and lien against, the Property based
on alleged mortgages, however as explained herein, the Statute of Limitations has expired
regarding both of these alleged debts.
76) Any person with an estate or interest in real property may commence a statutory quiet
title action to cancel a mortgage on the grounds that the statute of limitations has expired,
and the absence of a pending foreclosure action will not preclude judicial review of that
action. [see JBR Construction Corp., v. Staples, 71 AD3d 952, 953 (2d Dept. 2010)
(although no foreclosure action was pending, the mortgage was canceled because any
foreclosure action would be time barred by the applicable six-year statute of limitations);
LePore v. Shaheen, 32 AD3d 1330, 1331 (4th Dept. 2006) (the mortgage was canceled
where plaintiff established that, if defendant attempted to commence a foreclosure action,
it would be time-barred by the statute of limitations).
77) Therefore, because Plaintiffs seek to cancel the subject Mortgages on Statute of
Limitations grounds, this statutory Quiet Title action is ripe for judicial review.
78) "The law is well settled that, 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 Mortgage Corp., v. Patella, 279 AD2d 604, 605
(2d Dept. 2001)]. See also Goldman Sachs Mortgage Co., v. Mares, 135 AD3d 1121,
1122 (2d Dept. 2016); Lavin v. Elmakiss, 302 AD2d 638, 639 (3d Dept. 2003)].
79) Stated differently, "once a mortgage debt is accelerated, the borrowers' right and
obligation to make monthly installment ceased and all sums become immediately
due and payable, and the six-year Statute of Limitations begins to run on the entire
mortgage debt." [Id. at 605 (citations omitted)].
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80) After that mortgage debt has been [*5] accelerated, the acceleration may only "be
revoked through an affirmative act occurring within the limitations period." [Lavin v.
Elmakiss, supra at 639; EMC Mortgage Corp., v. Patella, supra at 606].
81) Neither of defendants Fargo or Banco ever attempted to revoke the accelerations of their
respective alleged Mortgages or underlying Notes “through an affirmative act occurring
within the limitations period”.
82) “…the record is barren of any affirmative act of revocation occurring during the six-year
Statute of Limitations period subsequent to the initiation of the prior action (see, Federal
Natl. Mtge. Assn. v. Mebane, supra, at 894, 618 N.Y.S.2d 88). Consequently, this
foreclosure action is time- barred (see, CPLR 213[4]).” [EMC Mortgage Corp., v. Patella,
279 AD2d 604, 605 (2d Dept. 2001).]
83) For all the reasons stated herein, both the Fargo Mortgage and the Banco Mortgage, along
with their underlying Notes and any associated Notice(s) of Pendency must be cancelled
and expunged from the records of the Westchester County Clerk.
IV. SECOND CAUSE OF ACTION: QUIET TITLE
84) NY RPAPL Article 1501 states in relevant part:
1. Where a person claims an estate or interest in real property… such person…
may maintain an action against any other person, known or unknown… to
compel the determination of any claim adverse to that of the plaintiff which
the defendant makes, or which it appears from the public records, or from the
allegations of the complaint, the defendant might make…
2. …the court may have to determine… any statutory limitation of time, or
any other question of fact or law upon which an adjudication of the adverse
claims of the parties may depend... (emphasis added)
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4. Where the period allowed by the applicable statute of limitation for the
commencement of an action to foreclose a mortgage, or to enforce a vendor's
lien, has expired, any person having an estate or interest in the real property
subject to such encumbrance may maintain an action against any other
person or persons, known or unknown, including one under disability as
hereinafter specified, 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… In any action brought under this section
it shall be immaterial whether the debt upon which the mortgage or lien
was based has, or has not, been paid; and also whether the mortgage in
question was, or was not, given to secure a part of the purchase price.
(emphasis added)
85) Plaintiff's title to the above-described property is derived as follows: On or about
November 2, 1998 (the “Closing Date”) Plaintiffs purchased the Property from Shirlee
Stokes (Deed and Conveyance Papers EXHIBIT 1).
86) All Defendants named herein claim, or within the past ten years may have claimed, an
interest and estate in the property adverse to Plaintiffs.
87) The claims of all defendants are without any right whatsoever, and none of the listed
defendants have any right, estate, title, lien or interest in or to the Property, or any part of
such property.
88) Plaintiffs therefore state, upon information and belief, that none of the Defendants in this
case hold a perfected and secured claim in the Property; and that all Defendants are
estopped and precluded from asserting either a secured or an unsecured claim against
Plaintiffs’ estate.
89) Plaintiffs request that the Court permanently enjoin defendants, and each of them, and all
persons claiming under them, from asserting any adverse claim to Plaintiffs’ title to the
Property, and in so doing, that the Court Quiet the Title to the Property in favor of
Plaintiffs.
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V. THIRD CAUSE OF ACTION: LACK OF STANDING
90) No Defendant herein has Standing to Foreclose.
91) Plaintiff further clarifies that the above specified Defendants, and each of them, do not
have the right to foreclose on the Property because said Defendants, and each of them, do
not possess any valid debt instrument, claim or lien relating to the Property.
92) None of the herein named Defendants have standing to foreclose either now or at any
time in the future.
VI. FOURTH CAUSE OF ACTION: FARGO’s EXPIRED NOTICE OF PENDENCY
93) CPLR 6513 states:
6513. Duration of notice of pendency. A notice of pendency shall
be effective for a period of three years from the date of filing.
Before expiration of a period or extended period, the
court,…may grant an extension for a like additional period. An
extension order shall be filed, recorded and indexed before
expiration of the prior period. (emphasis added)
94) Defendant Fargo filed a Notice of Pendency against the Property on July 7, 2015.
95) Such Notice of Pendency therefore expired on July 7, 2018 (Expired Notice of Pendency,
EXHIBIT 18).
96) Defendant Fargo made no attempt or motion to extend this Notice of Pendency during the
prior period, and the time frame for such an extension has long since passed.
97) For this reason, the Notice of Pendency filed by Defendant Fargo on July 7, 2015 must be
extinguished and removed from the record.
WHEREFORE Plaintiffs respectfully pray for this Court to issue an Order:
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SUPREME COURT OF THE STATE OF NEW YORK
Preview
FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 1 RECEIVED NYSCEF: 02/13/2023 04/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ___________________________________X Index No. MARK BARASCH and ELLEN BARASCH Plaintiffs, SUMMONS - against - WELLS FARGO BANK, NATIONAL ASSOCIATION, AS The basis of the Venue is: TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, Location of The Subject Property SERIES 2004-OPTl, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-OPT1; BANCO POPULAR NORTH AMERICA; MARC VERZANI; US INTERNAL REVENUE SERVICE; NYS TAX COMMISSION Defendants. ___________________________________X To the above-named Defendants: PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED to appear in this action by serving a notice of appearance on the Plaintiff(s) at the address set forth below within 20 days after the service of this Summons (not counting the day of service itself), or within 30 days after service is complete if the summons is not delivered personally to you within the State of New York. YOU ARE HEREBY NOTIFIED THAT should you fail to answer or appear, a judgment will be entered against you by default for the relief herein sought. D d: April 25, 20 & appaqua, NY ark Barasch and Barasch Pro Se Plaintiffs 39 Major Lockwood Lane Pound Ridge, New York 10576 TO: Wells Fargo National Association c/o PHH Mortgage Services. Internal Revenue Service c/o Corporation Service Company 86 Chambers Street 80 State Street NY, NY 10007 Albany, NY 12207-2543 Banco Popular New York Department of Taxation and Finance 85 Broad Street Building 9, W.A. Harriman Campus NY, NY 10004 Albany, NY 12227 Marc Verzani 11 Elena Drive Cortlandt Manor, NY NOTICE: The nature of this action is: Quiet Title and remove any existing cloud(s) therefrom. Pursuant to 22 NYCRR 130-1.1, the undersigned, one of the individual Pro Se Plaintiffs, certifies that, upon information and belief and reasonable inquiry, the contentio con d in the annexed document are not frivolous. By: Dated: Mark Barasch, o Se Plaintiff 1 of 2 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 1 RECEIVED NYSCEF: 02/13/2023 04/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ________________________X MARK BARASCH and ELLEN BARASCH Plaintiffs, - - against - WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, SERIES 2004-OPTl, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-OPT1; BANCO POPULAR NORTH AMERICA; MARC VERZANI; US INTERNAL REVENUE SERVICE; NYS TAX COMMISSION Defendants. ___________________________________X SUMMONS 2 of 2 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _X Index No. MARK BARASCH and ELLEN BARASCH Plaintiffs, VERIFIED - against - COMPLAINT WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, SERIES 2004-OPTl, ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-OPT1; BANCO POPULAR NORTH AMERICA; MARC VERZANI; US INTERNAL REVENUE SERVICE; NYS TAX COMMISSION Defendants. ___________________________________X Come now Plaintiffs Mark Barasch and Ellen Barasch, representing themselves Pro Se and filing the Instant Verified Complaint to Quiet Title to the subject Property in question and against all of the Defendants herein, and stating: 1) This is an action to quiet title to real property owned by Plaintiffs in fee simple and located at 39 Major Lockwood Lane; Pound Ridge, New York 10576 (the “Property”), and more fully described in the Deed attached hereto as “that certain plot, piece or parcel of land… in the Town of Pound Ridge, County of Westchester and State of New York known and designated as Section 21, Block 9816, Lot No. 93” (“Deed to 39 Major Lockwood Lane” EXHIBIT 1). 2) This action is brought under New York Real Property Actions and Proceedings Law RPAPL § 1515 with reliance on CPLR 213. 3) At all times relevant to this action, Plaintiffs have owned the Property. 4) Plaintiffs obtained title to the Property as follows: the Property was purchased by 1 1 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 Plaintiffs from Shirlee Stokes on or about November 6, 1998 and is owned in fee simple (“Deed to Major Lockwood Lane with Conveyance Papers” EXHIBIT 1). 5) The Property is located within the County of Westchester, State of New York with an address of 39 Major Lockwood Lane; Pound Ridge, NY 10576. I. DEFENDANTS 6) Defendant Wells Fargo Bank NA (“Fargo”), upon information and belief is a corporation with headquarters located at, 101 N. Phillips Avenue; Sioux Falls, SD 57104. 7) Fargo’s Servicer is PHH Mortgage Services, with headquarters located at 1 Mortgage Way, Mount Laurel, NJ 08054. 8) Fargo’s claimed lien on the property is adverse to Plaintiffs. 9) Fargo’s claims are without any right whatsoever and defendant has no valid estate right, title, lien or interest whatsoever in or to the property or to any part thereof. 10) Fargo’s claims are based on an unenforceable mortgage alleged to have been executed on or about June 11, 2004 (The Fargo Mortgage, EXHIBIT 2) and later assigned to defendant Fargo (The Fargo Assignment, EXHIBIT 3). 11) Such alleged mortgage is unenforceable based on the expiration of the Statute of Limitations as per CPLR 213. 12) Fargo filed its First Foreclosure Action regarding The Fargo Mortgage on July 7, 2009 (“First Foreclosure Action Complaint”, Westchester County 15327-09, EXHIBIT 9). 13) The First Foreclosure Action accelerated the Fargo Mortgage and underlying Fargo Note, and triggered the running of the six-year Statute of Limitations. 2 2 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 14) The First Foreclosure Action was dismissed on September 26, 2013 by Order of Justice William Giacomo (Order, Giacomo, J., September 26, 2013, the “First Foreclosure Action Dismissal Order”, EXHIBIT 10). 15) The Statute of Limitations, was not tolled, extended by court order, or by the affirmative action or assent of any party, and therefore expired on July 7, 2015. 16) However, as explained below in paragraphs 37-52, this chronological fact required several more years to clarify and confirm. 17) Defendant Banco Popular North America (“Banco”), upon information and belief is a corporation with offices located at 85 Broad Street; New York, New York 10004. 18) Banco’s claimed lien on the property is adverse to Plaintiffs. 19) Banco’s claims are without any right whatsoever and defendant has no valid estate right, title, lien or interest whatsoever in or to the property or to any part thereof. 20) Banco’s claims are based on an unenforceable mortgage executed on or about June 22, 2004 (The Banco Mortgage, First Foreclosure Action 5). 21) The Banco Mortgage was established solely to cross-collateralize two underlying notes entered into by Plaintiff Mark Barasch’s company, Barasch Sound Studios LLC, with Mark Barasch as guarantor. 22) The six-year Statute of Limitations regarding these notes began to run at the moment of the Chapter 11 Bankruptcy filing of Barasch Sound Studios LLC (the debtor) on May 27, 2009, based on the statutory automatic acceleration of all of Barasch Sound Studios LLC’s debts (Bankruptcy Filing of Barasch Sound Studios with SDNY, EXHIBIT 6). 23) The Statute of Limitations regarding these notes or the Banco Mortgage was not tolled, extended by court order, or by the affirmative action or assent of any party, and therefore expired on May 27, 2015. 3 3 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 24) Defendant Marc Verzani (“Verzani”) is an individual who resides at 11 Elena Drive, Cortlandt Manor, NY 10567. 25) Plaintiffs and Defendant Verzani entered into a mortgage on or about October 20, 2017 (The Verzani Mortgage, EXHIBIT 8). 26) The Verzani Mortgage has been paid in full and satisfied, and Defendant Verzani claims no lien on the property. 27) Defendant Verzani has no valid estate right, title, lien or interest whatsoever in or to the property or to any part thereof. 28) Defendant US Internal Revenue Service (“IRS”) is an agency of the United States Government, based in Washington, DC and with offices at 86 Chambers Street; NY, NY 10007. 29) IRS is listed herein only because at some time in the past 10 years IRS had a claim against the Plaintiffs and the Property, based on a prior tax debt and associated lien. 30) However, this debt has been fully satisfied and IRS is no longer stating any claim or maintaining any lien against the Property. 31) Defendant New York State Tax Commission (“NYS Tax”) is an agency of the State of New York with offices at: Building 9, W.A. Harriman Campus; Albany, NY 12227 32) NYS Tax is listed herein only because at some time in the past 10 years NYS Tax had a claim against Plaintiffs and may have had a lien against the Property based on a prior tax debt. 33) However, this debt has been fully satisfied and NYS Tax is not stating any claim, nor does it have any lien, against the Property. 4 4 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 II. RELEVANT FACTS AND HISTORY REGARDING DEFENDANT FARGO 34) On or about June 11, 2004, Plaintiffs entered into the alleged Fargo Mortgage and executed an underlying Note thereto in favor of Defendant Fargo’s predecessor in interest, American Home Mortgage. 35) Plaintiffs later entered into a Consolidated and or Modified Mortgage dated December 20, 2008, executed by Mark Barasch and Ellen Barasch, as Mortgagor(s) to American Home Mortgage Servicing, Inc., as servicing agent for the Plaintiff, as Mortgagee, to secure the sum of $728,41 1.33. 36) The foregoing instrument consolidated and/or modified the following mortgage(s): i) The Mortgage given by Mark Barasch and Ellen Barasch to Option One Mortgage Corporation to secure the sum of $520,000.00 dated January 31, 2003 and recorded on May 27, 2003 in Control Number 431350249. ii) Said Mortgage was then assigned to H&R Block Mortgage Corporation by virtue of a GAP Assignment of Mortgage executed on June 30, 2009 to be simultaneously recorded herewith. iii) A Mortgage was then entered into by Mark Barasch and Ellen Barasch to H&R Block Mortgage Corporation to secure the sum of $211,197.42 dated June 11, 2004 and recorded on October 20, 2004 in Control Number 442380380. iv) Said Mortgages were consolidated by virtue of a Consolidation Extension and Modification Agreement to form a single lien for the amount of $725,000.00 dated, June 11, 2004 and recorded on October 20, 2004 in Control Number 442380392. 5 5 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 v) Said Mortgage was then assigned to Option One Mortgage Corporation, by virtue of an Assignment of Mortgage executed on June 30, 2009 to be simultaneously recorded herewith. vi) The Note and Mortgage were then assigned by Option One Mortgage Corporation to Wells Fargo Bank, N.A., as Trustee for Citigroup Mortgage Loan Trust, Series 2004—OPT1, Asset Backed Pass-Through Certificates, and said transfer was memorialized by an Assignment of Mortgage executed on June 30, 2009 and recorded October 14, 2009 in Control Number 492710366. 37) As stated above in paragraph 12, Fargo filed The First Foreclosure Action against the Property and Plaintiffs on July 7, 2009,. 38) In its Complaint, Fargo stated that based on Plaintiffs’ default, the full balance of the Note was due immediately, thereby accelerating the Mortgage and Note and triggering the countdown of the six-year Statute of Limitations (First Foreclosure Action Complaint, Westchester County 15327-09, EXHIBIT 9). 39) On September 25, 2013 the First Foreclosure Action was dismissed by Order of the Court for Failure to Prosecute (Order, Giacomo, J., September 26, 2013, the “First Foreclosure Action Dismissal Order with Notice of Entry and Official Transcript”, EXHIBIT 10). 40) Therefore, as stated above, the Statute of Limitations regarding the Fargo Mortgage and Note was set to expire on July 7, 2015 as per CPLR 213 (4). 41) Not coincidentally however, also on July 7, 2015, (again, the date of the expiration of the Statute of Limitations regarding the previously accelerated Mortgage and Note), Fargo filed the Second Foreclosure Action against the Property and Plaintiffs (“The Second Foreclosure Action Complaint”, Westchester County 61855-15, EXHIBIT 11). 6 6 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 42) On April 4, 2017 the Second Foreclosure Action was dismissed by the Order of Justice Lawrence Ecker for Failure to Establish Personal Jurisdiction over Plaintiffs (Order, Ecker, J. 04/04/17, “The Second Foreclosure Action Dismissal Order with Notice of Entry”, EXHIBIT 4). 43) This dismissal was affirmed by Justice Ecker on August 17, 2017 when he denied Fargo’s Motion to Reargue or Renew with The Re-argument Dismissal Order (Order, Ecker, J. 08/17/17, “The Re-argument Dismissal Order with Notice of Entry”, EXHIBIT 13). 44) This matter was then disposed from the Supreme Court’s calendar (NYSCEF Screenshot showing Second Foreclosure Action as Disposed from the Court’s Calendar, EXHIBIT 12). 45) On May 10, 2017, Fargo appealed from The Second Foreclosure Action Dismissal Order (Defendant Fargo’s Notice of Appeal Filing, EXHIBIT 14). 46) On November 12, 2020 Fargo’s appeal was denied by the Second Judicial Dept., upholding and affirming the lower court’s prior ruling in dismissing the Second Foreclosure Action (Order, Second Judicial Dept. Appellate Term, “The Appeal Dismissal Order with Notice of Entry” 11/12/2020, EXHIBIT 15) 47) Fargo’s claims to the Property had therefore indeed expired upon July 7, 2015, that date being the sixth anniversary of the filing of the First Foreclosure Action, sixth anniversary of the acceleration of the Note and Mortgage, and the expiration of the associated six- year Statute of Limitations regarding the Mortgage. 48) It should be noted that again, as per paragraph 15 above, this Statute of Limitations was not tolled, extended by court order, or by the affirmative action or assent of any party within the limitations period. 7 7 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 49) Fargo’s clear knowledge and understanding of this expiration of the Statute of Limitations was exposed when Fargo’s own Attorney Matthew Blum admitted and clarified this fact when questioned by Justice Lawrence Ecker during the Traverse Hearing held on February 16, 2017: MR. BLUM: There is a prior action, your Honor… THE COURT: So the debt that is now in dispute runs from what date to what date? What is the first date of default?... MR. BLUM: March 1, 2009, your Honor. THE COURT: March 1, 2009… MR. BLUM: The original default date is March 2009… THE COURT: Tell me how the statute of limitations applies… MR. BLUM: The statute of limitations applies six years from the commencement of the first action. The first action was commenced in 2009… (emphasis added) THE COURT: Let me pinpoint my question… assume that the case is dismissed… Are you saying you lost the opportunity to go back… MR. BLUM: … that may likely be the case, that we would be barred by the statute of limitations… (Excerpted from pages 8-10 of Traverse Hearing Transcript of February 16, 2017 EXHIBIT 19) 8 8 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 50) Also, at the time of this filing there is no active lawsuit or legal action of any kind between Plaintiffs and defendant Fargo. 51) As a result of this expiration of the Statute of Limitations, any subsequent foreclosure action is blocked, the Fargo Mortgage and its underlying Note are unenforceable, and such Mortgage must therefore be expunged from the record. REGARDING DEFENDANT BANCO 52) On or about June 22, 2004, Plaintiffs entered into the second-position Banco Mortgage as cross-collateral for two underlying Notes in favor of Defendant Banco (The Banco Mortgage, EXHIBIT 5). 53) These underlying Notes were funding vehicles for Plaintiff Mark Barasch’s business, Barasch Sound Studios, LLC (“BSS”), and such LLC was the borrower. 54) On May 27, 2009, BSS filed for Chapter 11 Bankruptcy protection in the Southern District of New York (SDNY 09-13407, Voluntary Petition, EXHIBIT 6). 55) This filing automatically accelerated all of BSS’s debts (including the two aforementioned Notes) and triggered the countdown of the six-year Statute of Limitations as of that date. 56) In addition, on May 10, 2010, Banco filed a Proof of Claim with the SDNY Bankruptcy Court in which it stated that the full amount of all outstanding debt was due and owing (Banco Proof of Claim, EXHIBIT 16). 57) This was a voluntary acceleration made by Banco of all the existing debt owed to Banco by BSS regarding both of the relevant Notes. 58) The Statute of Limitations regarding any such debts (and specifically the two aforementioned Notes) therefore expired on May 27, 2015, and if not, then at the very latest on May 10, 2016. 9 9 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 59) Banco’s claims to the Property had therefore terminated on or before May 10, 2016 with the expiration of the Statute of Limitations. 60) It should be noted that again, as per paragraph 22 above, this Statute of Limitations was not tolled, extended by court order, or by the affirmative action or assent of any party within the limitations period. 61) It should also be noted that at the time of this filing there is no active lawsuit or legal action of any kind between Plaintiffs and defendant Banco. 62) As a result of this expiration of the Statute of Limitations, any subsequent foreclosure action is blocked, the Banco Mortgage is unenforceable, and such Mortgage must therefore be expunged from the record. 63) In addition, Banco received payment from the United States Small Business Administration (SBA) based on SBA’s guarantee of Banco’s creditor position, and the SBA has subsequently entered into a separate unsecured payment plan (with no mortgage involved for security) directly with Plaintiff Mark Barasch to repay these funds. 64) The debt that Banco’s underlying mortgage stood as security for has therefore been absolved and liquidated. 65) Also, regardless of the status of the unenforceable Banco Mortgage, it should be also be noted that Plaintiff Mark Barasch is currently making timely monthly payments directly to SBA in order to satisfy his personal guarantee related to such alleged mortgage (SBA Workout Agreements, EXHIBIT 7). 66) Allowing the unenforceable Banco Mortgage to continue to cloud the deed of the Premises would therefore be a clear case of Double Jeopardy and again, for all the reasons listed here the Banco Mortgage must therefore be expunged and removed from the record. 10 10 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 REGARDING DEFENDANT VERZANI 67) On or about October 20, 2017, Plaintiffs entered into the Verzani Mortgage in favor of Defendant Verzani. 68) At this time the Verzani Mortage has been fully repaid, and Marc Verzani is not claiming any interest in the Property. 69) This Mortgage is therefore now a nullity and Marc Verzani is stating no interest, lien or claim against the Property whatsoever. REGARDING DEFENDANT IRS 70) IRS had filed certain liens against the Property, but all these liens have been lifted and released as the debts underlying them have all been satisfied (“IRS Liens and matching Release filings”, EXHIBIT 17) 71) IRS is no longer stating any claim to the Property and has no lien(s) thereupon. REGARDING DEFENDANT NYS TAX 72) NYS TAX may have had filed certain liens against the Property at one time, but if so, all these liens have been lifted and vacated as the debts underlying them have all been satisfied. 73) NYS TAX is not stating any claim to the Property and has no lien(s) thereupon. III. FIRST CAUSE OF ACTION: THE STATUTE OF LIMITATIONS HAS EXPIRED REGARDING BOTH FARGO AND BANCO 74) CPLR 213 (4) reads in relevant part: The following actions must be commenced within six years:… 4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein… 11 11 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 75) Defendants Fargo and Banco each held an interest in, and lien against, the Property based on alleged mortgages, however as explained herein, the Statute of Limitations has expired regarding both of these alleged debts. 76) Any person with an estate or interest in real property may commence a statutory quiet title action to cancel a mortgage on the grounds that the statute of limitations has expired, and the absence of a pending foreclosure action will not preclude judicial review of that action. [see JBR Construction Corp., v. Staples, 71 AD3d 952, 953 (2d Dept. 2010) (although no foreclosure action was pending, the mortgage was canceled because any foreclosure action would be time barred by the applicable six-year statute of limitations); LePore v. Shaheen, 32 AD3d 1330, 1331 (4th Dept. 2006) (the mortgage was canceled where plaintiff established that, if defendant attempted to commence a foreclosure action, it would be time-barred by the statute of limitations). 77) Therefore, because Plaintiffs seek to cancel the subject Mortgages on Statute of Limitations grounds, this statutory Quiet Title action is ripe for judicial review. 78) "The law is well settled that, 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 Mortgage Corp., v. Patella, 279 AD2d 604, 605 (2d Dept. 2001)]. See also Goldman Sachs Mortgage Co., v. Mares, 135 AD3d 1121, 1122 (2d Dept. 2016); Lavin v. Elmakiss, 302 AD2d 638, 639 (3d Dept. 2003)]. 79) Stated differently, "once a mortgage debt is accelerated, the borrowers' right and obligation to make monthly installment ceased and all sums become immediately due and payable, and the six-year Statute of Limitations begins to run on the entire mortgage debt." [Id. at 605 (citations omitted)]. 12 12 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 80) After that mortgage debt has been [*5] accelerated, the acceleration may only "be revoked through an affirmative act occurring within the limitations period." [Lavin v. Elmakiss, supra at 639; EMC Mortgage Corp., v. Patella, supra at 606]. 81) Neither of defendants Fargo or Banco ever attempted to revoke the accelerations of their respective alleged Mortgages or underlying Notes “through an affirmative act occurring within the limitations period”. 82) “…the record is barren of any affirmative act of revocation occurring during the six-year Statute of Limitations period subsequent to the initiation of the prior action (see, Federal Natl. Mtge. Assn. v. Mebane, supra, at 894, 618 N.Y.S.2d 88). Consequently, this foreclosure action is time- barred (see, CPLR 213[4]).” [EMC Mortgage Corp., v. Patella, 279 AD2d 604, 605 (2d Dept. 2001).] 83) For all the reasons stated herein, both the Fargo Mortgage and the Banco Mortgage, along with their underlying Notes and any associated Notice(s) of Pendency must be cancelled and expunged from the records of the Westchester County Clerk. IV. SECOND CAUSE OF ACTION: QUIET TITLE 84) NY RPAPL Article 1501 states in relevant part: 1. Where a person claims an estate or interest in real property… such person… may maintain an action against any other person, known or unknown… to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make… 2. …the court may have to determine… any statutory limitation of time, or any other question of fact or law upon which an adjudication of the adverse claims of the parties may depend... (emphasis added) 13 13 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 4. Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor's lien, has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, including one under disability as hereinafter specified, 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… In any action brought under this section it shall be immaterial whether the debt upon which the mortgage or lien was based has, or has not, been paid; and also whether the mortgage in question was, or was not, given to secure a part of the purchase price. (emphasis added) 85) Plaintiff's title to the above-described property is derived as follows: On or about November 2, 1998 (the “Closing Date”) Plaintiffs purchased the Property from Shirlee Stokes (Deed and Conveyance Papers EXHIBIT 1). 86) All Defendants named herein claim, or within the past ten years may have claimed, an interest and estate in the property adverse to Plaintiffs. 87) The claims of all defendants are without any right whatsoever, and none of the listed defendants have any right, estate, title, lien or interest in or to the Property, or any part of such property. 88) Plaintiffs therefore state, upon information and belief, that none of the Defendants in this case hold a perfected and secured claim in the Property; and that all Defendants are estopped and precluded from asserting either a secured or an unsecured claim against Plaintiffs’ estate. 89) Plaintiffs request that the Court permanently enjoin defendants, and each of them, and all persons claiming under them, from asserting any adverse claim to Plaintiffs’ title to the Property, and in so doing, that the Court Quiet the Title to the Property in favor of Plaintiffs. 14 14 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 V. THIRD CAUSE OF ACTION: LACK OF STANDING 90) No Defendant herein has Standing to Foreclose. 91) Plaintiff further clarifies that the above specified Defendants, and each of them, do not have the right to foreclose on the Property because said Defendants, and each of them, do not possess any valid debt instrument, claim or lien relating to the Property. 92) None of the herein named Defendants have standing to foreclose either now or at any time in the future. VI. FOURTH CAUSE OF ACTION: FARGO’s EXPIRED NOTICE OF PENDENCY 93) CPLR 6513 states: 6513. Duration of notice of pendency. A notice of pendency shall be effective for a period of three years from the date of filing. Before expiration of a period or extended period, the court,…may grant an extension for a like additional period. An extension order shall be filed, recorded and indexed before expiration of the prior period. (emphasis added) 94) Defendant Fargo filed a Notice of Pendency against the Property on July 7, 2015. 95) Such Notice of Pendency therefore expired on July 7, 2018 (Expired Notice of Pendency, EXHIBIT 18). 96) Defendant Fargo made no attempt or motion to extend this Notice of Pendency during the prior period, and the time frame for such an extension has long since passed. 97) For this reason, the Notice of Pendency filed by Defendant Fargo on July 7, 2015 must be extinguished and removed from the record. WHEREFORE Plaintiffs respectfully pray for this Court to issue an Order: 15 15 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 16 of 17 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 04/28/2021 01:56 03:28 PM INDEX NO. 58675/2021 55567/2021 NYSCEF DOC. NO. 55 2 RECEIVED NYSCEF: 02/13/2023 04/28/2021 SUPREME COURT OF THE STATE OF NEW YORK