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FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
__________________________________________________________________Ç
WILMINGTON SAVINGS FUND SOCIETY, FSB,
D/B/A CHRISTIANA TRUST AS TRUSTEE FOR
PNPMS TRUST II, Index No.: 55881/2023
Plaintiff, MEMORANDUM OF LAW
-against-
JOHN HENNEBERRY; DOREEN HENNEBERRY;
DOE" DOE''
"JOHN AND "JANE said names being
fictitious, it being the intention of Plaintiff to designate
any and all occupants of premises being foreclosed herein,
Defendants.
_________________________________________________________..________Ç
DEFENDANT DOREEN HENNEBERRY'S MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS COMPLAINT
CARL J. NELSON LAW PC
By: Carl J. Nelson, Esq.
800 Westchester Avenue
Suite 641N
Rye Brook, NY 10573
(877) 282-2882 (tel.)
(877) 282-8325 (fax)
Attorney for Defendant
Doreen Henneberry
Dated: October 2, 2023
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Table of Authorities
Cases
Brooks-Smith v. Wash. Mut. Bank, 2012 NY Slip Op 32621 (N.Y. Sup. Ct., 2012)...................... 4
EMC Mtge. Corp. v. Patella 279 A.D.2d 604, 720 N.Y.S.2d 161 (N.Y. App. Div., 2001)........... 6
Fontanetta v. John Doe, 73 A.D.3d 78, 85 (N.Y. App. Div. 2010)................................................ 5
Goshen v. Mut. Life Ins. Co., 98 NY2d 314 (N.Y. 2002)............................................................... 4
HSBC Bank USA v. Rahman, 2014 NY Slip Op 33116(U) (N.Y. Sup. Ct., 2014)......................... 4
PNMAC Mortg. Co. v. Friedman, 2012 NY Slip Op 30979 (N.Y. Sup. Ct., 2012)................ 8, 9
Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 943 (N.Y. App. Div., 2012)............................ 6
Statutes
CPLR 203.................................................................................................................................... 7, 8
CPLR 213............................................................................................................................... passim
CPLR 3211 .......................................................................................................................... 3, 4, 6, 9
CPLR 3217 ...................................................................................................................................... 8
RPAPL 1301.......................................................................................................................... passim
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PRELIMINARY STATEMENT
Defendant Doreen Henneberry ("Answering Defendant") submits this memorandum of
law in support of her motion seeking an order pursuant to New York Civil Practice Law and Rules
("CPLR") section 3211(a)(1) and (a)(5), CPLR 213(4) and New York's Real Property Actions and
Proceedings Law ("RPAPL") section 1301(3), dismissing the complaint herein (the "Complaint")
filed by Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust as Trustee for PNPMS
Trust II (the "Plaintiff"); and for an order cancelling the notice of pendency.
BACKGROUND
The Plaintiff brings this action seeking the foreclosure of the Defendant's residence upon
a promissory note dated February 23, 2007. The purported note's makers were John and Doreen
Henneberry and it was made payable to American General Home Equity, Inc. (Complaint ¶ 2), a
predecessor in interest to Springleaf Financial Services, Inc. See Complaint, Ex. C. The subject
promissory note, however, is also the subject of a previous action filed in 2011 (the "2011 Case")
brought before this Court (index number 55781/2011), and likewise brought upon a promissory
note dated February 23, 2007 by John and Doreen Henneberry payable to American General
Home Equity Inc., a predecessor in interest to Springleaf Home Equity, Inc.
This case must be dismissed because there is a prior case pending upon the same
instrument. In addition, the prior 2011 Case, seeking a monetary judgment for the outstanding
loan balance would have, as a matter of necessity, accelerated the note's total outstanding
balance upon its filing on September 20, 2011 (assuming it had not been accelerated prior
thereto). The Complaint makes no allegation that any past acceleration was revoked (and in fact
does not mention the 2011 Case at all). This action, therefore was filed more than 11 years past
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the loan's acceleration and well beyond the six-year statute of limitations applicable to mortgage
loans. See CPLR 213(4). The Complaint must therefore be dismissed.
ARGUMENT
Legal Standard
CPLR 3211 provides that a "party may move for judgment dismissing one or more causes
of action asserted against him on the ground that: a defense is founded upon documentary
evidence (subd. (a)(1))...; 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 (subd. (a)(4))...; [or] the cause of
action may not be maintained because of...[the] statute of limitations.
In a motion to dismiss pursuant to CPLR 3211, a "court must accept the facts as alleged
in the complaint, accord the plaintiff the benefit of every possible favorable inference, and
theory."
determine whether the facts alleged fit into any cognizable Brooks-Smith v. Wash. Mut.
Bank, 2012 NY Slip Op 32621 (N.Y. Sup. Ct., 2012) (quoting Nonnon v City of New York, 9
NY3d 825 [2007]). "However, bare legal conclusions, as well as factual claims flatly
consideration."
contradicted by the record, are not entitled to any such HSBC Bank USA v.
Rahman, 2014 NY Slip Op 33116(U) (N.Y. Sup. Ct., 2014) (quoting Garner v. China Natural
Gas, Inc., 71 A.D.3d 825, 898 N.Y.S.2d 49 (N.Y. App. Div., 2010)).
With regard to CPLR 3211(a)(1), a motion to dismiss on the basis of documentary
evidence may be granted where "the documentary evidence utterly refutes plaintiffs factual
law..."
allegations, conclusively establishing a defense as a matter of Goshen v. Mut. Life Ins.
Co., 98 NY2d 314 (N.Y. 2002). New York Courts have held that documentary evidence
includes judicial records as well as other documents such as mortgages and deeds, the contents of
which are essentially undeniable. Fontanetta v. John Doe, 73 A.D.3d 78, 85 (N.Y. App. Div.
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2010) (internal quotation omitted). Here, documentary evidence in the form of certified court
records utterly refute Plaintiff's claim that no other action has been brought upon the subject
note.
Prior Action Requires Dismissal
It is incontrovertible that a prior action was filed upon the same instrument upon which
Plaintiff brings this action. See Affm. in OppI, ¶¶ 2-5. The original creditor (American
General Home Equity, Inc.) and defendants (John and Doreen Henneberry) are identical, and the
loan date is identical (February 23, 2007). In this case, the 90-day notice filed by Plaintiff (see
Complaint Ex. D). shows that on April 5, 2021, the loan was 3,444 days in default. 3,444 days
before April 5, 2021 is October 31, 2011, which is the month following the date that the 2011
Case was filed (September 20, 2011). Additionally, the amount of the original note (see
Complaint Ex. A) was $64,635.00. The 2011 Case complaint states that the amount owed as of
August 9, 2011 was $64,145.80.
Pursuant to RPAPL 1301(3), while an action brought to recover any part of a mortgage
debt "is pending or after final judgment for the plaintiff therein, no other action shall be
commenced or maintained to recover any part of the mortgage debt, including an action to
brought."
foreclose the mortgage, without leave of the court in which the former action was
RPAPL 1301(3). Here, a prior action (the 2011 Case) was brought to recover the entire loan
balance and leave was not sought or obtained by the Plaintiff to bring the present action.
Further, "[t]he procurement of such leave shall be a condition precedent to the commencement of
action."
such other action and the failure to procure such leave shall be a defense to such other
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Additionally, CPLR 3211(a)(4) provides that a motion to dismiss may be made 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
requires..."
but may make such order as justice CPLR 321l(a)(4).
Because a prior action was brought and remains pending, the present action must be
dismissed for the failure to fulfill the condition precedent prescribed by the unambiguous
language of RPAPL 1301(3).
The Statute of Limitations Bars the Present Action
The subject mortgage loan was the subject of the 2011 Case, at which time the Plaintiff
or its predecessor-in-interest sought a judgment upon the entire loan balance. The 2011 Case
would have necessarily accelerated the entire loan balance (to the extent it had not already been
accelerated) at that time, because the 2011 Case sought judgment upon the note's entire balance.
This acceleration therefore occurred more than eleven years before the commencement of the
present action.
"[A]n action to foreclose a mortgage may be brought to recover unpaid sums which were
due within the six-year -period immediately preceding the commencement of the action (see
CPLR 213(4)). With respect to a mortgage payable in installments, separate causes of action
accrued for each installment that is not paid, and the statute of limitations begins to run, on the
due."
date each installment becomes Wells Fargo Bank N.A. v. Burke, 94 A.D.3d 980, 982 (N.Y.
App. Div., 2012) (citing Wells Fargo Bank N.A. v. Cohen, 80 A.D.3d 753, 754; Loiacono v.
Goldberg, 240 A.D.2d 476, 477; Pagano v. Smith, 201 A.D.2d 632, 633). However, "even if a
mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is
debt."
due and the Statute of Limitations begins to run on the entire EMC Mtge. Corp. v. Patella
279 A.D.2d 604, 720 N.Y.S.2d 161 (N.Y. App. Div., 2001). As the 2011 Case sought judgment
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upon the note's entire balance, it must either have been accelerated or have matured, in either
event, the statute of limitations would have run from that point in time-September 20, 2011-or
earlier.
The Foreclosure Abuse Prevention Act ("FAPA"), inter alia, modified New York's
statute of limitation applicable to foreclosure cases under CPLR 213(4). FAPA applies to
pending foreclosure actions and provides, with respect to the statute of limitations:
"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;
(a) In any action on an instrument described under this subdivision, if the statute of
limitations is raised as a defense, and if that defense is based on a claim that the
instrument at issue was accelerated prior to, or by way of commencement of a prior
action, 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
accelerated...."
validly CPLR 213(4).
Applying the provisions of CPLR 213(4) to this case, this is an action upon a note, the
payment of which is secured by a mortgage upon real property. The statute of limitations was
raised as a defense and the instrument at issue had been, as a matter of necessity, accelerated
prior to the commencement of this action by way of the commencement of a prior action. See
Affm. in Opp'n ¶¶ 2-5. The prior action was not dismissed, and the Plaintiff is therefore
estopped from asserting that the instrument was not validly accelerated in the prior case.
FAPA also added subdivision (h) to CPLR 203 to provide that "[o]nce a cause of action
upon an instrument described in [CPLR 213(4)] 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
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by law to commence an action and to interpose the claim, unless expressly prescribed by
statute."
CPLR 203(h).
Likewise, FAPA added subdivision (e) to CPLR 3217 to provide that "the voluntary
discontinuance [of a foreclosure 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, the 2011 Case, having accelerated the mortgage loan which is also the
subject of the present action (to the extent it had not been accelerated prior thereto), started
running the six-year period during which an action could be brought upon the same
instrument. Accordingly, this action is time-barred and must be dismissed.
CONCLUSION
The 2011 Case requires dismissal of the complaint in this matter for two reasons. First, it
rule"
runs afoul of the "one-action codified in RPAPL 1301. RPAPL 1301(3) requires that a
second action upon a mortgage note may not be brought while a prior action on the same debt is
pending or after file judgment of the prior case and no leave was sought or granted. Second, the
2011 Case was brought to reduce the entire alleged loan balance to a monetary judgment. As the
entire balance was alleged to be due upon the filing of the 2011 Case and Plaintiff makes no
allegation in the present that any prior acceleration was revoked, this action was brought more
than eleven years after the claim accrued and is time-barred.
The Defendant also requests that in addition to the dismissal of this case, any notice of
pendency in this matter be cancelled pursuant to the inherent power of the Court See PNMAC
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Mortg. Co. v. Friedman, 2012 NY Slip Op 30979, p.4 (N.Y. Sup. Ct., 2012) (cancelling the
notice of pendency upon dismissal of the case in the exercise of the inherent power of the court).
WHEREFORE, for the reasons set forth herein and in the accompanying affirmation in
support of the Answering Defendant's motion to dismiss the complaint and accompanying
exhibits, Answering Defendant respectfully requests: (1) an Order pursuant to CPLR 3211(a)(1)
and (a)(5) and RPAPL 1301(3) dismissing the complaint herein on the ground that: (a) the action
is barred by the statute of limitations pursuant to CPLR 213(4); (b) that the action is barred
pursuant to RPAPL 1301(3); (2) an Order cancelling any notice of pendency filed in this matter;
and (3) such other relief in her favor deemed appropriate.
Dated: Rye Brook, NY
October 2, 2023
C . Nelson L , P. .
By: r J. Nelson, Esq.
800 Westchester Avenue
Suite 641N
Rye Brook, NY 10573
(877) 282-2882 (tel.)
(877) 282-8325 (fax)
Attorney for Defendant
Doreen Henneberry
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Word-Count Certification Pursuant to 22 NYCRR § 202.8-b(c)
Pursuant to section 202.8-b (c) of the Uniform Civil Rules for the Supreme Court and the County
Court, the undersigned certifies that the word count in this Affirmation (excluding the caption, table of
contents, table of authorities, and signature block, if any), is 1,999 and complies with the word limits set
forth in Section 202.8-b(a). This certification relies on the word count feature of the word-processing
system used to prepare the subject document.
Carl J . Nelson, Esq.
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Preview
FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER __________________________________________________________________Ç WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST AS TRUSTEE FOR PNPMS TRUST II, Index No.: 55881/2023 Plaintiff, MEMORANDUM OF LAW -against- JOHN HENNEBERRY; DOREEN HENNEBERRY; DOE" DOE'' "JOHN AND "JANE said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants. _________________________________________________________..________Ç DEFENDANT DOREEN HENNEBERRY'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT CARL J. NELSON LAW PC By: Carl J. Nelson, Esq. 800 Westchester Avenue Suite 641N Rye Brook, NY 10573 (877) 282-2882 (tel.) (877) 282-8325 (fax) Attorney for Defendant Doreen Henneberry Dated: October 2, 2023 1 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 Table of Authorities Cases Brooks-Smith v. Wash. Mut. Bank, 2012 NY Slip Op 32621 (N.Y. Sup. Ct., 2012)...................... 4 EMC Mtge. Corp. v. Patella 279 A.D.2d 604, 720 N.Y.S.2d 161 (N.Y. App. Div., 2001)........... 6 Fontanetta v. John Doe, 73 A.D.3d 78, 85 (N.Y. App. Div. 2010)................................................ 5 Goshen v. Mut. Life Ins. Co., 98 NY2d 314 (N.Y. 2002)............................................................... 4 HSBC Bank USA v. Rahman, 2014 NY Slip Op 33116(U) (N.Y. Sup. Ct., 2014)......................... 4 PNMAC Mortg. Co. v. Friedman, 2012 NY Slip Op 30979 (N.Y. Sup. Ct., 2012)................ 8, 9 Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980, 943 (N.Y. App. Div., 2012)............................ 6 Statutes CPLR 203.................................................................................................................................... 7, 8 CPLR 213............................................................................................................................... passim CPLR 3211 .......................................................................................................................... 3, 4, 6, 9 CPLR 3217 ...................................................................................................................................... 8 RPAPL 1301.......................................................................................................................... passim 2 2 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 PRELIMINARY STATEMENT Defendant Doreen Henneberry ("Answering Defendant") submits this memorandum of law in support of her motion seeking an order pursuant to New York Civil Practice Law and Rules ("CPLR") section 3211(a)(1) and (a)(5), CPLR 213(4) and New York's Real Property Actions and Proceedings Law ("RPAPL") section 1301(3), dismissing the complaint herein (the "Complaint") filed by Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust as Trustee for PNPMS Trust II (the "Plaintiff"); and for an order cancelling the notice of pendency. BACKGROUND The Plaintiff brings this action seeking the foreclosure of the Defendant's residence upon a promissory note dated February 23, 2007. The purported note's makers were John and Doreen Henneberry and it was made payable to American General Home Equity, Inc. (Complaint ¶ 2), a predecessor in interest to Springleaf Financial Services, Inc. See Complaint, Ex. C. The subject promissory note, however, is also the subject of a previous action filed in 2011 (the "2011 Case") brought before this Court (index number 55781/2011), and likewise brought upon a promissory note dated February 23, 2007 by John and Doreen Henneberry payable to American General Home Equity Inc., a predecessor in interest to Springleaf Home Equity, Inc. This case must be dismissed because there is a prior case pending upon the same instrument. In addition, the prior 2011 Case, seeking a monetary judgment for the outstanding loan balance would have, as a matter of necessity, accelerated the note's total outstanding balance upon its filing on September 20, 2011 (assuming it had not been accelerated prior thereto). The Complaint makes no allegation that any past acceleration was revoked (and in fact does not mention the 2011 Case at all). This action, therefore was filed more than 11 years past 3 3 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 the loan's acceleration and well beyond the six-year statute of limitations applicable to mortgage loans. See CPLR 213(4). The Complaint must therefore be dismissed. ARGUMENT Legal Standard CPLR 3211 provides that a "party may move for judgment dismissing one or more causes of action asserted against him on the ground that: a defense is founded upon documentary evidence (subd. (a)(1))...; 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 (subd. (a)(4))...; [or] the cause of action may not be maintained because of...[the] statute of limitations. In a motion to dismiss pursuant to CPLR 3211, a "court must accept the facts as alleged in the complaint, accord the plaintiff the benefit of every possible favorable inference, and theory." determine whether the facts alleged fit into any cognizable Brooks-Smith v. Wash. Mut. Bank, 2012 NY Slip Op 32621 (N.Y. Sup. Ct., 2012) (quoting Nonnon v City of New York, 9 NY3d 825 [2007]). "However, bare legal conclusions, as well as factual claims flatly consideration." contradicted by the record, are not entitled to any such HSBC Bank USA v. Rahman, 2014 NY Slip Op 33116(U) (N.Y. Sup. Ct., 2014) (quoting Garner v. China Natural Gas, Inc., 71 A.D.3d 825, 898 N.Y.S.2d 49 (N.Y. App. Div., 2010)). With regard to CPLR 3211(a)(1), a motion to dismiss on the basis of documentary evidence may be granted where "the documentary evidence utterly refutes plaintiffs factual law..." allegations, conclusively establishing a defense as a matter of Goshen v. Mut. Life Ins. Co., 98 NY2d 314 (N.Y. 2002). New York Courts have held that documentary evidence includes judicial records as well as other documents such as mortgages and deeds, the contents of which are essentially undeniable. Fontanetta v. John Doe, 73 A.D.3d 78, 85 (N.Y. App. Div. 4 4 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 2010) (internal quotation omitted). Here, documentary evidence in the form of certified court records utterly refute Plaintiff's claim that no other action has been brought upon the subject note. Prior Action Requires Dismissal It is incontrovertible that a prior action was filed upon the same instrument upon which Plaintiff brings this action. See Affm. in OppI, ¶¶ 2-5. The original creditor (American General Home Equity, Inc.) and defendants (John and Doreen Henneberry) are identical, and the loan date is identical (February 23, 2007). In this case, the 90-day notice filed by Plaintiff (see Complaint Ex. D). shows that on April 5, 2021, the loan was 3,444 days in default. 3,444 days before April 5, 2021 is October 31, 2011, which is the month following the date that the 2011 Case was filed (September 20, 2011). Additionally, the amount of the original note (see Complaint Ex. A) was $64,635.00. The 2011 Case complaint states that the amount owed as of August 9, 2011 was $64,145.80. Pursuant to RPAPL 1301(3), while an action brought to recover any part of a mortgage debt "is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, including an action to brought." foreclose the mortgage, without leave of the court in which the former action was RPAPL 1301(3). Here, a prior action (the 2011 Case) was brought to recover the entire loan balance and leave was not sought or obtained by the Plaintiff to bring the present action. Further, "[t]he procurement of such leave shall be a condition precedent to the commencement of action." such other action and the failure to procure such leave shall be a defense to such other 5 5 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 Additionally, CPLR 3211(a)(4) provides that a motion to dismiss may be made 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 requires..." but may make such order as justice CPLR 321l(a)(4). Because a prior action was brought and remains pending, the present action must be dismissed for the failure to fulfill the condition precedent prescribed by the unambiguous language of RPAPL 1301(3). The Statute of Limitations Bars the Present Action The subject mortgage loan was the subject of the 2011 Case, at which time the Plaintiff or its predecessor-in-interest sought a judgment upon the entire loan balance. The 2011 Case would have necessarily accelerated the entire loan balance (to the extent it had not already been accelerated) at that time, because the 2011 Case sought judgment upon the note's entire balance. This acceleration therefore occurred more than eleven years before the commencement of the present action. "[A]n action to foreclose a mortgage may be brought to recover unpaid sums which were due within the six-year -period immediately preceding the commencement of the action (see CPLR 213(4)). With respect to a mortgage payable in installments, separate causes of action accrued for each installment that is not paid, and the statute of limitations begins to run, on the due." date each installment becomes Wells Fargo Bank N.A. v. Burke, 94 A.D.3d 980, 982 (N.Y. App. Div., 2012) (citing Wells Fargo Bank N.A. v. Cohen, 80 A.D.3d 753, 754; Loiacono v. Goldberg, 240 A.D.2d 476, 477; Pagano v. Smith, 201 A.D.2d 632, 633). However, "even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is debt." due and the Statute of Limitations begins to run on the entire EMC Mtge. Corp. v. Patella 279 A.D.2d 604, 720 N.Y.S.2d 161 (N.Y. App. Div., 2001). As the 2011 Case sought judgment 6 6 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 upon the note's entire balance, it must either have been accelerated or have matured, in either event, the statute of limitations would have run from that point in time-September 20, 2011-or earlier. The Foreclosure Abuse Prevention Act ("FAPA"), inter alia, modified New York's statute of limitation applicable to foreclosure cases under CPLR 213(4). FAPA applies to pending foreclosure actions and provides, with respect to the statute of limitations: "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; (a) In any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, 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 accelerated...." validly CPLR 213(4). Applying the provisions of CPLR 213(4) to this case, this is an action upon a note, the payment of which is secured by a mortgage upon real property. The statute of limitations was raised as a defense and the instrument at issue had been, as a matter of necessity, accelerated prior to the commencement of this action by way of the commencement of a prior action. See Affm. in Opp'n ¶¶ 2-5. The prior action was not dismissed, and the Plaintiff is therefore estopped from asserting that the instrument was not validly accelerated in the prior case. FAPA also added subdivision (h) to CPLR 203 to provide that "[o]nce a cause of action upon an instrument described in [CPLR 213(4)] 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 7 7 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 by law to commence an action and to interpose the claim, unless expressly prescribed by statute." CPLR 203(h). Likewise, FAPA added subdivision (e) to CPLR 3217 to provide that "the voluntary discontinuance [of a foreclosure 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, the 2011 Case, having accelerated the mortgage loan which is also the subject of the present action (to the extent it had not been accelerated prior thereto), started running the six-year period during which an action could be brought upon the same instrument. Accordingly, this action is time-barred and must be dismissed. CONCLUSION The 2011 Case requires dismissal of the complaint in this matter for two reasons. First, it rule" runs afoul of the "one-action codified in RPAPL 1301. RPAPL 1301(3) requires that a second action upon a mortgage note may not be brought while a prior action on the same debt is pending or after file judgment of the prior case and no leave was sought or granted. Second, the 2011 Case was brought to reduce the entire alleged loan balance to a monetary judgment. As the entire balance was alleged to be due upon the filing of the 2011 Case and Plaintiff makes no allegation in the present that any prior acceleration was revoked, this action was brought more than eleven years after the claim accrued and is time-barred. The Defendant also requests that in addition to the dismissal of this case, any notice of pendency in this matter be cancelled pursuant to the inherent power of the Court See PNMAC 8 8 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 Mortg. Co. v. Friedman, 2012 NY Slip Op 30979, p.4 (N.Y. Sup. Ct., 2012) (cancelling the notice of pendency upon dismissal of the case in the exercise of the inherent power of the court). WHEREFORE, for the reasons set forth herein and in the accompanying affirmation in support of the Answering Defendant's motion to dismiss the complaint and accompanying exhibits, Answering Defendant respectfully requests: (1) an Order pursuant to CPLR 3211(a)(1) and (a)(5) and RPAPL 1301(3) dismissing the complaint herein on the ground that: (a) the action is barred by the statute of limitations pursuant to CPLR 213(4); (b) that the action is barred pursuant to RPAPL 1301(3); (2) an Order cancelling any notice of pendency filed in this matter; and (3) such other relief in her favor deemed appropriate. Dated: Rye Brook, NY October 2, 2023 C . Nelson L , P. . By: r J. Nelson, Esq. 800 Westchester Avenue Suite 641N Rye Brook, NY 10573 (877) 282-2882 (tel.) (877) 282-8325 (fax) Attorney for Defendant Doreen Henneberry 9 9 of 10 FILED: WESTCHESTER COUNTY CLERK 10/17/2023 04:46 PM INDEX NO. 55881/2023 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 10/17/2023 Word-Count Certification Pursuant to 22 NYCRR § 202.8-b(c) Pursuant to section 202.8-b (c) of the Uniform Civil Rules for the Supreme Court and the County Court, the undersigned certifies that the word count in this Affirmation (excluding the caption, table of contents, table of authorities, and signature block, if any), is 1,999 and complies with the word limits set forth in Section 202.8-b(a). This certification relies on the word count feature of the word-processing system used to prepare the subject document. Carl J . Nelson, Esq. 10 of 10