The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CTJ INVESTMENTS LP and JN FINANCIAL
SERVICES, LLC,
MEMORANDUM & ORDER
Plaintiffs, 20-CV-4983 (MKB)
v.
CHARMAINE BROOKS, THE CADLE
COMPANY, CAPITAL ONE BANK, and NEW
YORK CITY ENVIRONMENTAL CONTROL
BOARD,
Defendants.
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MARGO K. BRODIE, United States District Judge:
Plaintiffs CTJ Investments LP (“CTJ Investments”) and JN Financial Services, LLC (“JN
Financial Services”) commenced the above-captioned action on October 16, 2020 against
Defendants Charmaine Brooks, The Cadle Company, Capital One Bank, and New York City
Environmental Control Board. (Compl., Docket Entry No. 1.) Plaintiffs initiated this action,
pursuant to New York Real Property Actions and Proceedings Law (“RPAPL”) § 1301 et seq., to
foreclose on a mortgage encumbering property located at 167-11 145th Avenue, Jamaica, NY
11434 (the “Property”). (Id. ¶ 1.)
On August 14, 2023, Brooks moved to dismiss the Complaint for failure to state a claim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,1 and Plaintiffs opposed the
1 On May 12, 2022, Plaintiffs moved for summary judgment, pursuant to Rule 56 of the
Federal Rules of Civil Procedure, (Pls.’ Mot. for Summ. J., Docket Entry No. 34), and Brooks
cross-moved for summary judgment, (Brooks’ Cross-Mot. for Summ. J., Docket Entry No. 35).
On March 20, 2023, the Court sua sponte deferred its decision on the parties’ motions for
summary judgment in light of Brooks’ anticipated motion to dismiss Plaintiffs’ claims as time-
motion.2 On February 6, 2024 and subsequently on October 23, 2025, the Court sua sponte
deferred its decision on the pending motions because the constitutionality and retroactivity of the
statute at issue — the 2022 New York Foreclosure Abuse Prevention Act (“FAPA”), 2022 N.Y.
Laws 2180–82 (codified in scattered sections of N.Y. C.P.L.R. and N.Y. Gen. Oblig. L.) — was
being considered by the Second Circuit and the New York Court of Appeals. (Order dated Feb.
6, 2024; Min. Entry & Order dated Oct. 23, 2025.) For the reasons explained below, the Court
grants Brooks’ motion to dismiss, dismissing the Complaint with prejudice and denying the
parties’ cross-motions for summary judgment as moot.
I. Background
Plaintiff CTJ Investments is a Delaware limited partnership.3 (Compl. ¶ 2.) Its general
partner is CTJ Management Inc., a Delaware corporation, with its principal place of business in
barred pursuant to recent amendments of New York Civil Practice Law and Rules (“N.Y.
C.P.L.R.”) § 213(4). (Order dated Mar. 20, 2023.) The Court determined that it would address
Brooks’ anticipated motion to dismiss first and directed, following resolution of that motion, that
“either party may file a letter with the Court requesting that the summary judgment motions be
restored to the calendar.” (Id.)
2 (Def.’s Notice of Mot. to Dismiss (“Def.’s Mot.”), Docket Entry No. 54; Decl. of
Solomon Rosengarten, Esq. in Supp. of Def.’s Mot. (“Rosengarten Decl.”), appended to Def.’s
Mot., Docket Entry No. 54-1; Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), Docket
Entry No. 55; Pls.’ Mem. in Opp’n to Def.’s Mot. (“Pls.’ Opp’n”), Docket Entry No. 50; Def.’s
Reply in Supp. of Def.’s Mot. (“Def.’s Reply”), Docket Entry No. 57; Reply Decl. of Solomon
Rosengarten, Esq. in Supp. of Def.’s Reply (“Rosengarten Reply Decl.”), Docket Entry No. 56;
Def.’s Suppl. Mot. to Dismiss (“Def.’s Suppl. Mem.”), Docket Entry No. 64; Pls.’ Suppl. Opp’n
to Def.’s Mot. (“Pls.’ Suppl. Opp’n”), Docket Entry No. 65; Def.’s Suppl. Reply in Supp. of
Def.’s Mot. (“Def.’s Suppl. Reply”), Docket Entry No. 66.) As Brooks’ memorandum of law,
(Def.’s Mem.), supplemental memorandum of law, (Def.’s Suppl. Mem.), and supplemental
reply, (Def.’s Suppl. Reply), are not internally paginated, the Court refers to the respective
portable document format (“PDF”) page numbers.
3 In deciding a Rule 12(b)(6) motion, “the district court is normally required to look only
to the allegations on the face of the complaint,” but “may consider documents that ‘are attached
to the complaint,’ ‘incorporated in it by reference,’ ‘integral’ to the complaint, or the proper
subject of judicial notice.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quoting Roth
Canada. (Id.) CTJ Investments has six limited partners who are individuals, each of whom is a
citizen and resident of Canada. (Id.) Plaintiff JN Financial Services is a California limited
liability company with its principal place of business in California. (Id. ¶ 3.) Its members are
citizens of the United States and residents of California. (Id.) Defendant Brooks is a citizen and
resident of New York and at the time of the filing of the Complaint, lived at the Property. (Id.
¶ 4.) Defendant the Cadle Company is an Ohio corporation with its principal place of business in
Ohio and is a judgment creditor against the Property, subordinate to CTJ Investments’ loan. (Id.
¶ 5.) Defendant Capital One Bank is, “upon information and belief,” a banking institution with
an address in Richmond, Virginia and is a judgment creditor against the Property, subordinate to
CTJ Investments’ loan. (Id. ¶ 6.) The New York City Environmental Control Board, established
under § 1404 of the New York City Charter and operating as an “administrative tribunal of the
v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)); see United States ex. rel. Henig v. Amazon.com,
Inc., 177 F.4th 156, 163 (2d Cir. 2026) (same); Pearson v. Gesner, 125 F.4th 400, 406 (2d Cir.
2025) (same); Lynch v. Dep’t of Ed. of N.Y., 822 F. Supp. 3d 258, 275 (E.D.N.Y. 2026) (“On a
motion to dismiss, courts are constrained in their review to the four corners of the complaint, the
documents attached thereto, those that are integral to the complaint or incorporated by reference,
and those facts or documents of which the court can take judicial notice.” (internal quotation
marks omitted)). In addition, “[i]t is well established that a district court may rely on matters of
public record in deciding a motion to dismiss under Rule 12(b)(6), including case law and
statutes.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998); see Hudson
Shore Assocs. Ltd. P’ship v. New York, 139 F.4th 99, 104 n.1 (2d Cir. 2025) (citations omitted);
Goe v. Zucker, 43 F.4th 19, 29 (2d Cir. 2022) (first citing Territory of Alaska v. Am. Can Co.,
358 U.S. 224, 226–27 (1959); and then citing Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d
Cir. 2003)); see also Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020)
(district courts “may consider public records that may be judicially noticed in ruling on motions”
(quoting Pani, 152 F.3d at 75)); Perkins v. Solomon, 821 F. Supp. 3d 395, 406 (E.D.N.Y. 2026)
(noting the court may take judicial notice of public records in deciding a motion to dismiss,
although the “documents subject to judicial notice cannot be used at the motion to dismiss stage
for the truth of the matters asserted therein,” “only . . . to establish the fact that they, or the
proceedings they reflect, exist” (internal quotation marks omitted)); McConkey v. Churchill Sch.
& Ctr., No. 24-CV-6091, 2025 WL 2062195, at *4 n.1 (S.D.N.Y. July 23, 2025) (“Though the
[c]ourt may take judicial notice of ‘documents in the public record at the [m]otion [t]o [d]ismiss
stage, it considers them only to establish their existence and legal effect, or to determine what
statements they contained not for the truth of the matters asserted.’” (quoting 2002 Lawrence R.
Buchalter Alaska Tr. v. Phila. Fin. Life Assur. Co., 96 F. Supp. 3d 182, 206 (S.D.N.Y. 2015))).
City of New York,” has issued multiple judgments against Brooks and/or the Property, which are
subordinate to CTJ Investments’ mortgage.4 (Id. ¶ 7.)
a. The mortgage and note
On March 3, 2006, Brooks executed a note to WMC Mortgage Corp. (“WMC”),
promising to repay the principal amount of $500,000, plus interest (the “Note”). (Compl. ¶ 12;
Note 1, 4, annexed to Compl. as Ex. C and appended to Compl. in Exs. A - F 29–34, Docket
Entry No. 1-1.) On the same day, Brooks executed a mortgage to Mortgage Electronic
Registration Systems, Inc. (“MERS”), as nominee for WMC (the “Mortgage”). (Compl. ¶ 11;
Mortgage 1, annexed to Compl. as Ex. B and appended to Compl. in Exs. A - F 3–28, Docket
Entry No. 1-1.) The Mortgage encumbers the Property and was recorded on March 18, 2006.
(Mortgage 1, 4–5; Compl. ¶ 11.) The Mortgage was assigned multiple times, including to FV-1
LLC (“FV-1”), until it was ultimately assigned to Plaintiffs. (Compl. ¶¶ 13, 15; see also
Assignments of Mortgage, annexed to Compl. as Ex. D and appended to Compl. in Exs. A - F
35–50, Docket Entry No. 1-1.) The Note was also transferred “by the affixation of an
endorsement to the Note and subsequent assignments.” (Compl. ¶ 13.)
Pursuant to the terms of the Note, Brooks was required to make payments of principal
4 Defendants The Cadle Company and Capital One Bank have failed to appear in the
action and Defendant New York City Environmental Control Board, despite the appearance of an
attorney on its behalf, has also failed to file an answer or otherwise appear. (See Min. Entry
dated Mar. 17, 2021 (noting Defendants The Cadle Company, Capital One Bank and New York
City Environmental Control board did not appear); Min. Order dated Aug. 4, 2021 (same); Min.
Entry dated Oct. 23, 2025 (same); see generally Docket.) On December 23, 2020, Plaintiffs filed
affidavits of service for each of these Defendants. (Aff. of Service for New York City
Environmental Control Board, Docket Entry No. 10; Aff. of Service for Capital One Bank,
Docket Entry No. 11; Aff. of Service for The Cadle Company, Docket Entry No. 12.)
and accrued interest on the first day of each month, beginning on June 1, 2007,5 until the Note
matured on March 1, 2036. (Note 1; Compl. ¶ 16.) The Note made clear that failure to pay any
monthly installment would constitute default. (Note 3; Compl. ¶ 17.) Brooks breached her
obligations under the Note by failing to pay the first monthly payment due, resulting in a default
and which continued to the date of the filing of the Complaint on October 16, 2020. (Compl.
¶ 16.)
b. The 2007 state court foreclosure action
In August of 2007, FV-1, Plaintiffs’ predecessor-in-interest, brought a foreclosure action
in New York Supreme Court, Queens County (the “2007 State Foreclosure Action”). (2007
State Foreclosure Action Compl., annexed to Rosengarten Decl. as Ex. A, Docket Entry No. 54-
2.) The court dismissed the 2007 State Foreclosure Action in September of 2014 for failure to
properly serve Brooks. (2007 State Foreclosure Action Order 2, annexed to Rosengarten Decl.
as Ex. B, Docket Entry No. 54-3.)
c. The 2015 federal court foreclosure action
In January of 2015, Plaintiffs brought a foreclosure action in the Eastern District of New
York (the “2015 Federal Foreclosure Action”). (2015 Federal Foreclosure Action Compl.,
annexed to Rosengarten Decl. as Ex. C, Docket Entry No. 54-4.) Brooks filed an answer,
asserting affirmative defenses, and one counterclaim. (2015 Federal Foreclosure Action Answer
3–6, annexed to Rosengarten Decl. as Ex. D, Docket Entry No. 54-5.) In her counterclaim,
Brooks sought to dismiss the action and cancel and discharge the Mortgage pursuant to RPAPL
§ 1501(4), arguing that the statute of limitations had expired due to the 2007 State Foreclosure
5 The Note required Brooks to begin making payments on April 1, 2006. (Note 1.)
However, Plaintiffs allege that Brooks’ first monthly payment was due June 1, 2007. (Compl.
¶ 16.) This discrepancy does not impact the Court’s analysis and decision.
Action being commenced more than six years prior. (Id. at 3–6.) In May of 2016, the parties
jointly stipulated to voluntarily dismiss the 2015 Federal Foreclosure Action without prejudice,
and Brooks withdrew her affirmative defenses but continued to litigate her statute of limitations
counterclaim. (Stipulation ¶¶ 1–3, annexed to Rosengarten Decl. as Ex. F, Docket Entry No. 54-
7.) Brooks moved for summary judgment on her counterclaim and the parties fully briefed the
issue. (Id. ¶¶ 4–6.) Brooks argued that the debt was accelerated by FV-1’s commencement of
the 2007 State Foreclosure Action. Def.’s Mem. in Supp. of Summ. J. 4–8, CTJ Invs. LP v.
Brooks, No. 15-CV-475 (E.D.N.Y. filed Aug. 12, 2016), appended to Def.’s Not. of Mot. for
Summ. J., Docket Entry No. 43-13. Plaintiffs argued that, because FV-1 did not have standing to
commence the 2007 State Foreclosure Action, the debt was never accelerated and the statute of
limitations never began to run. See Pls.’ Opp’n 3–7, Brooks, No. 15-CV-475 (filed Aug. 12,
2016), appended to Pls.’ 56.1 Stmt., Docket Entry No. 45-3. The court denied Brooks’ motion
for summary judgment because “whether FV-1 had standing to sue to foreclose is material to the
RPAPL counterclaim” and “the issue cannot be resolved on the available record.”6 See Summ. J.
Mem. & Order 4, Brooks, No. 15-CV-475 (filed Mar. 24, 2017), Docket Entry No. 50.
The parties agreed that “whether FV-1 had standing depend[ed] on whether it was [a]
valid assignee of the Note before it commenced the [2007 State] Action.” CTJ Invs. LP v.
6 Judge Raymond J. Dearie explained that:
Although . . . it is undisputed that MERS assigned the Mortgage to
FV-1 five days before FV-1 commenced the state court action, the
record does not disclose with the requisite certainty whether, as New
York law requires, there was also a lawful and timely assignment of
the Note. The uncertainty, unfortunately, is in large part the result
of the parties’ own curious litigation tactics, which failed to provide
the presumably available documentary proof of this simple
transactional fact.
Summ. J. Mem. & Order 4–5, CTJ Invs. LP v. Brooks, No. 15-CV-475 (E.D.N.Y. filed Mar. 24,
2017), Docket Entry No. 50.
Brooks, No. 15-CV-475, 2019 WL 2571151, at *1 n.1 (E.D.N.Y. June 20, 2019). Accordingly,
on April 2, 2019, Judge Raymond J. Dearie held a bench trial on the sole issue of “whether a
lawful assignment of the Note had been made to FV-1 before it commenced the [2007 State
Foreclosure] Action.” Id. at *1. Judge Dearie found, as a matter of law, that (1) “FV-1 lacked
standing to bring the [2007 State Foreclosure] Action because there [was] no proof that it was an
assignee of the Note at the relevant time,” and (2) “Brooks therefore [had] not established that
the commencement of the [2007 State Foreclosure] Action was a valid acceleration of the
Mortgage that started the running of the six-year limitations clock.” Id. at *3. Judge Dearie
therefore dismissed Brooks’ counterclaim. Id. at *4.
d. Procedural background
On October 16, 2020, Plaintiffs filed the Complaint against Defendants bringing a cause
of action under RPAPL to foreclose on the Mortgage encumbering the Property. (Compl.) On
January 20, 2021, Brooks filed an Answer to the Complaint. (Answer, Docket Entry No. 15.)
On May 12, 2022, Plaintiffs moved for summary judgment and on May 13, 2022, Brooks
cross-moved for summary judgment. (Pls.’ Mot. for Summ. J.; Brooks’ Cross-Mot. for Summ.
J.) On March 20, 2023, the Court deferred its decision on the parties’ motions for summary
judgment in light of Brooks’ anticipated motion to dismiss. (Order dated Mar. 20, 2023.)
On August 14, 2023, Brooks moved to dismiss the Complaint for failure to state a claim
and Plaintiffs opposed the motion. (Def.’s Mot.; Def.’s Mem.; Pls.’ Opp’n; Def.’s Reply.) On
February 6, 2024, the Court deferred its decision on the pending motion to dismiss, as well as the
cross-motions for summary judgment, because the Second Circuit was considering the
constitutionality and retroactivity of FAPA. (Order dated Feb. 6, 2024.) See E. Fork Funding
LLC v. U.S. Bank, N.A., No. 23-659 (2d Cir. Apr. 21, 2023). The Court directed “the parties to
file letters explaining the impact of the Second Circuit’s decision in East Fork on the pending
motion [to dismiss] . . . within fourteen days after East Fork [was] decided.” (Order dated Feb.
6, 2024.) On October 1, 2024, Plaintiffs filed a status letter informing the Court that the Second
Circuit issued an order certifying the following question to the New York Court of Appeals:
“Whether Sections 4 and/or 8 of the Foreclosure Abuse Prevention Act, codified at N.Y.
C.P.L.R. 203(h) and 3217(e), respectively, apply to a unilateral voluntary discontinuance taken
prior to the Act’s enactment.” (Status Ltr. dated Oct. 1, 2024, Docket Entry No. 58.) On
October 6, 2025, Plaintiffs filed another status letter informing the Court that on October 24,
2024, the New York Court of Appeals declined to accept the Second Circuit’s certified questions
and requesting that the Court proceed with the pending motions. (Status Ltr. dated October 6,
2025, Docket Entry No. 59.) See E. Fork Funding LLC v. U.S. Bank, Nat’l Ass’n as Tr. for
Greenpoint Mortg. Funding Tr. Mortg. Pass-Through Certificates, Series 2006-AR6, 118 F.4th
488, 492 (2d Cir. 2024), certified questions denied, 42 N.Y.3d 981 (2024). The Court scheduled
a status conference for October 23, 2025. (Scheduling Order dated Oct. 17, 2025.)
At the conference, the Court questioned Plaintiffs’ representation that given the New
York Court of Appeals’ declination to accept East Fork’s certified questions “there [was] no
binding state-court or appellate authority resolving the issue of FAPA’s retroactivity,” (Status
Ltr. dated October 6, 2025), and “discussed the impact of Article 13 LLC v. Ponce De Leon Fed.
Bank [(Article 13 LLC I)], 132 F.4th 586 (2d Cir. 2025), certified questions accepted, 43 N.Y.3d
982 (2025), on the pending motion to dismiss and cross-motions for summary judgment,” (Min.
Entry dated Oct. 23, 2025.) Given the New York Court of Appeals’ acceptance of the Second
Circuit’s certified questions in Article 13 LLC, which were the same questions previously denied
consideration in East Fork, the Court deferred ruling on the parties’ motions until the New York
Court of Appeals decided Article 13 LLC; the New York Court of Appeals heard oral arguments
on October 16, 2025. (Id.)
On November 26, 2025, Brooks filed a status letter informing the Court that the New
York Court of Appeals decided Article 13 LLC, holding that FAPA was retroactive and
constitutional. (Brooks’ Status Ltr. dated Nov. 26, 2025, Docket Entry No. 61.) See Article 13
LLC v. Ponce De Leon Fed. Bank (Article 13 LLC II), 45 N.Y.3d 441 (2025). On December 2,
2025, Plaintiffs also filed a letter informing the Court of the New York Court of Appeals’
decision, responding to Brooks’ November 26, 2025 letter, and requesting that the Court grant
supplemental briefing given the recent decisions. (Pls.’ Status Ltr. dated Dec. 2, 2025, Docket
Entry No. 62.) The Court granted the parties’ request and ordered them to submit supplemental
briefing on Brooks’ motion to dismiss. (Order dated Dec. 8, 2025.) Brooks filed a supplemental
memorandum of law on January 9, 2026, Plaintiffs filed a supplemental memorandum of law in
opposition on February 9, 2026, and Brooks filed a supplemental reply memorandum of law on
February 23, 2026. (Def.’s Suppl. Mem.; Pls.’ Suppl. Opp’n; Def.’s Supp.l Reply.)
II. Discussion
Brooks argues that the Court must dismiss the action because the statute of limitations
has expired. (Def.’s Mem. 4; Def.’s Reply 2–3; Def.’s Suppl. Mem. 2–3.) In support, Brooks
contends that the filing of the summons and complaint in the 2007 State Foreclosure Action
seeking the entire unpaid balance of principal constituted an acceleration of the debt. (Def.’s
Mem. 4–5.) Therefore, since there was no judicial determination in the prior foreclosure action
that the loan was not properly accelerated, pursuant to N.Y. C.P.L.R. § 213(4)(a), Plaintiffs’
claims are time-barred falling outside of the six-year statute of limitations period. (Id.; Def.’s
Suppl. Mem. 2–3.) Moreover, Brooks argues that FAPA applies retroactively and bars Plaintiffs
from raising a defense that the acceleration was invalid, both by making new arguments and
raising Judge Dearie’s decision from the 2015 Federal Foreclosure Action. (Def.’s Mem. 5–6;
Def.’s Suppl. Mem. 2–3; Def.’s Reply 2–3.) Specifically addressing Plaintiffs’ argument that the
Court should apply the principles of res judicata to this case given Judge Dearie’s decision from
the 2015 Federal Foreclosure Action, Brooks contends that Plaintiffs’ argument is without merit
because their briefing addresses changes in decisional law while FAPA constitutes a change in
statutory law. (Def.’s Reply 1–2.) Brooks also argues that even if the Court considered
Plaintiffs’ otherwise-barred arguments, New York courts “squarely rejected” the conclusion that
failure to effectuate personal service does not validly accelerate a loan. (Def.’s Suppl. Reply 3.)
Plaintiffs oppose Brooks’ motion to dismiss arguing that FAPA is inapplicable to this
action, which was timely filed. (Pls.’ Opp’n 6–7.) First, Plaintiffs contend that the 2007 State
Court Foreclosure Action was judicially determined, by Judge Dearie’s decision in the 2015
Federal Court Foreclosure Action, to have not validly accelerated the debt because there was no
evidence presented than the Note was assigned. (Id.) Plaintiffs argue the “conclusive effect of
[Judge Dearie’s] final disposition is not to be disturbed by a subsequent change in decisional
law.” (Id. at 7 (emphasis added).) Therefore, Plaintiffs argue that this action is timely because it
was filed within the six-year statute of limitations period following the commencement of the
2015 Federal Court Foreclosure Action. (Id.) Second, in their supplemental briefing, Plaintiffs
argue that this case “presents a narrow threshold question that neither Article 13 [LLC II] nor
Van Dyke [v. U.S. Bank, National Association, 45 N.Y.3d 461 (2025)] addressed: whether a
foreclosure action dismissed for lack of personal jurisdiction, i.e., an action that was void from
its inception and never validly before the court, can ever effect a legally operative acceleration of
mortgage debt under [FAPA].” (Pls.’ Suppl. Opp’n 1.) Plaintiffs argue that as a result, neither
case applies because “both decisions presuppose a prior action that was validly commenced and
jurisdictionally sound.” (Id. at 3.) Third, following this line of reasoning, Plaintiffs contend that
the 2007 State Foreclosure Action was “void for personal jurisdiction and brought by an entity
that lacked authority to accelerate the debt” and therefore, “there was no legally effective
acceleration to which FAPA’s estoppel provision could attach.” (Id. at 1, 4–5.) Plaintiffs argue
that N.Y. C.P.L.R. § 213(4) “was enacted to prevent lenders from re-litigating standing-based
acceleration arguments after prior valid actions were dismissed” and “does not bar challenges
based on lack of personal jurisdiction, lack of authority to accelerate, or the legal nonexistence of
the prior action.” (Id. at 5.) Lastly, Plaintiffs explain that “Judge Dearie’s findings confirm the
absence of any valid acceleration.”7 (Id. at 6–7.)
a. Standards of review
i. 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court “must ‘construe [the complaint] liberally, accepting all factual allegations
therein as true and drawing all reasonable inferences in the plaintiff[‘s] favor.’” Singh v. Deloitte
LLP, 123 F.4th 88, 93 (2d Cir. 2024) (quoting Sacerdote v. N.Y. Univ., 9 F.4th 95, 106–07 (2d
Cir. 2021)); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)
(“[The Second Circuit] review[s] de novo a district court’s dismissal of a complaint pursuant to
Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” (quoting
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002))). A complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007); Yerkyn v. Yakovlevich, 164 F.4th 224, 231 (2d Cir. 2026) (quoting
id.); see also Miller v. McDonald, 180 F.4th 420, 426 (2d Cir. 2026) (quoting Ashcroft v. Iqbal,
7 Plaintiffs do not dispute that FAPA applies to the Mortgage and Loan because “a final
judgment of foreclosure and sale has not been enforced.” E. Fork Funding LLC v. U.S. Bank,
Nat’l Ass’n as Tr. for Greenpoint Mortg. Funding Tr. Mortg. Pass-Through Certificates, Series
2006-AR6, 118 F.4th 488, 493 (2d Cir. 2024) (quoting FAPA § 10, 2022 N.Y. Laws 2182),
certified questions denied, 42 N.Y.3d 981 (2024).
556 U.S. 662, 678 (2009)). A claim is plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011)
(quoting Iqbal, 556 U.S. at 678); see Knapp v. Barclays PLC, 171 F.4th 166, 170 (2d Cir. 2026)
(quoting same); Carruthers v. Colton, 153 F.4th 169, 179 (2d Cir. 2025) (quoting same); Roe v.
St. John’s Univ., 91 F.4th 643, 651 (2d Cir. 2024) (quoting Matson, 631 F.3d at 63); see also
Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 544 (2d Cir. 2024) (“[T]he plaintiff’s
allegations must enable the court to reasonably infer that the defendant is liable for the alleged
misconduct.” (citing Iqbal, 556 U.S. at 678)), cert. denied, 146 S. Ct. 880 (2025); Emilee
Carpenter, LLC v. James, 107 F.4th 92, 99 (2d Cir. 2024) (“[S]urviv[ing] a motion to dismiss . . .
requires ‘factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” (quoting Iqbal, 556 U.S. at 678)). Although all allegations
contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678; see Roe, 91 F.4th at 651 (“Although all factual allegations
contained in the complaint are assumed to be true, this rule does not extend ‘to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” (quoting id.)).
ii. FAPA and subsequent case law
The statute of limitations for a mortgage foreclosure action is six years. N.Y. C.P.L.R. §
213(4); E. Fork Funding LLC, 118 F.4th at 492 (quoting id.); 53rd St., LLC v. U.S. Bank Nat’l
Ass’n, 8 F.4th 74, 78 (2d Cir. 2021) (quoting same). The “six-year statute of limitations on an
action to foreclose on a mortgage begins to run when a foreclosure action is commenced, and the
mortgage debt is accelerated, or the entire mortgage amount made immediately due.” Article 13
LLC I, 132 F.4th at 589; see E. Fork Funding LLC, 118 F.4th at 492 (“[O]nce a mortgage debt is
accelerated — such as by commencement of a foreclosure action — ‘the entire amount is due
and the Statute of Limitations begins to run on the entire debt.’” (quoting Ditmid Holdings, LLC
v. JPMorgan Chase Bank, N.A., 120 N.Y.S.3d 393, 394 (App. Div. 2020))); Article 13 LLC II,
45 N.Y.3d at 449 (“[I]f a lender elects to accelerate the loan, the cause of action for the entire
outstanding debt and interest accrues on that date, thus commencing the six-year statute of
limitations.”); Van Dyke, 45 N.Y.3d at 470 (“[W]hen a noteholder accelerates a defaulted loan,
the six-year limitations period starts running as to the entire amount due under the loan as of the
date of acceleration.”).
In response to a body of New York case law involving the de-acceleration of loans and
the impact on the statute of limitations period, culminating in the New York Court of Appeals’
decision in Freedom Mortgage Corp. v. Engel, 37 N.Y.3d 1 (2021), the New York legislature
enacted FAPA to address “ongoing . . . abuses of the judicial foreclosure process and lenders’
attempts to manipulate statute of limitations . . . exacerbated by recent court decisions.” Article
13 LLC II, 45 N.Y.3d at 449–51 & n.1 (alterations in original) (citing 2022 N.Y. Laws 2180)
(collecting cases); see also Article 13 LLC I, 132 F.4th at 593 (explaining that the “legislative
history of FAPA suggests that the statute was passed to overrule [Engel,8] a Court of Appeals
decision”). FAPA applies “to all actions commenced on [a mortgage] in which a final judgment
of foreclosure and sale has not been enforced.” E. Fork Funding LLC, 118 F.4th at 493
(alteration in original) (quoting FAPA § 10). Under Sections 4 and 8 of FAPA, “[o]nce a cause
of action . . . has accrued, . . . no party may, in form or effect, unilaterally waive, postpone,
8 Freedom Mortgage Corp. v. Engel, 37 N.Y.3d 1 (2021) involved a question of whether
a party de-accelerated, or revoked a prior acceleration of, a loan due to a “sufficiently affirmative
act,” which served as a manipulation of the statute of limitations period. Article 13 LLC v. Ponce
De Leon Fed. Bank (Article 13 LLC II), 45 N.Y.3d 441, 449–51 (2025); see also Engel, 37
N.Y.3d 1.
cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral
extension of the limitations period prescribed by law . . . , unless expressly prescribed by statute”
— including a voluntary discontinuance of such action. FAPA § 4 (codified as amended at N.Y.
C.P.L.R. § 203(h)); FAPA § 8 (codified as amended at N.Y. C.P.L.R. § 3217(e)); see Van Dyke,
45 N.Y.3d at 470 (first quoting N.Y. C.P.L.R. § 203(h); and then quoting N.Y. C.P.L.R. §
3217(e)); see also Assets Recovery 23, LLC v. Gasper, No. 19-CV-2628, 2026 WL 865837, at *5
(E.D.N.Y. Mar. 30, 2026) (“[O]nce the loan has been accelerated, ‘no party may, in form or
effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual [of the cause of
action], or otherwise purport to effect a unilateral extension of the limitations period’ —
including through a ‘voluntary discontinuance.’” (quoting Van Dyke, 45 N.Y.3d at 470)), appeal
docketed, No. 26-1141 (2d Cir. Apr. 29, 2026). Moreover, Section 7 of FAPA provides:
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 validly accelerated.
FAPA § 7 (codified as amended at N.Y. C.P.L.R. § 213(4)(a)); see Article 13 LLC I, 132
F.4th at 591 (quoting id.); see also Article 13 LLC v. Ponce De Leon Fed. Bank (Article
13 LLC III), 175 F.4th 397, 403 (2d Cir. 2026) (explaining that FAPA “bars the defense
of the invalidity of prior accelerations of mortgages in quiet title actions”); Van Dyke, 45
N.Y.3d at 471 (explaining that “section 7 of FAPA estops a noteholder in a successive
foreclosure action from challenging the validity of a loan acceleration made ‘prior to, or
by way of commencement of’ a prior foreclosure action, unless the court in the prior
action expressly determined, based on a timely raised defense, that the acceleration was
invalid” (quoting FAPA § 7)). Lastly, Section 10 of FAPA provides that the law “shall
apply to all actions commenced on [a mortgage] in which a final judgment of foreclosure
and sale has not been enforced.” Article 13 LLC I, 132 F.4th at 591 (alteration in
original) (quoting FAPA § 10).
In 2025, the New York Court of Appeals accepted two certified questions from
the Second Circuit: (1) “[w]hether, or to what extent does, Section 7 of [FAPA] apply to
foreclosure actions commenced before the statute’s enactment”; and (2) “[w]hether
FAPA’s retroactive application violates the right to substantive and procedural due
process under the New York Constitution.” Article 13 LLC II, 45 N.Y.3d at 447 (quoting
Article 13 LLC I, 132 F. 4th 586). As to the first question, the New York Court of
Appeals answered in the affirmative and held that “even if a prior foreclosure action was
commenced by another party not in possession of the underlying note, and that action
was discontinued without an express determination by the court that the instrument was
not validly accelerated, the six-year statute of limitations accrued on the date that action
was commenced and continued to run from that date.” Article 13 LLC III, 175 F.4th at
405 (quoting Article 13 LLC II, 45 N.Y.3d at 453). As to the second question, the New
York Court of Appeals “concluded that FAPA’s retroactive application did not violate . .
. due process rights under the New York Constitution.” Id. (citing Article 13 LLC II, 45
N.Y.3d at 457–59). That same day, the New York Court of Appeals also ruled that
“FAPA’s retroactive application did not violate the Contracts Clause of the U.S.
Constitution.” Id. (citing Van Dyke, 45 N.Y.3d at 478–79). Subsequently, in accordance
with the New York Court of Appeals’ rulings, the Second Circuit held that retroactive
application of Section 7 of FAPA does not violate the substantive and procedural Due
Process Clauses, the Contracts Clause, and the Takings Clause under the U.S.
Constitution.9 Id. at 406–12.
b. The action is time-barred and the Court is foreclosed from considering
Plaintiffs’ arguments
Plaintiffs’ predecessor-in-interest commenced the 2007 State Foreclosure Action in
August of 2007 by seeking the entire unpaid balance of the Mortgage and Loan.10 (2007 State
Foreclosure Action Compl.) This constitutes an acceleration of the debt and started the six-year
9 Given the recent New York Court of Appeals and Second Circuit decisions, see supra
section II.a.ii, binding case law holds that Plaintiffs’ arguments in their initial briefing that
“FAPA cannot be applied retroactively and if applied, [ ] violates Plaintiffs’ constitutional
rights” under the U.S. Constitution’s Contracts and Due Process Clauses and the N.Y.
Constitution’s Due Process Clause are without merit. (Pls.’ Opp’n 1, 7–13.) See Article 13 LLC
II, 45 N.Y.3d at 453, 459 (holding that FAPA retroactively applies and retroactive application
did not violate due process rights under the New York Constitution); Van Dyke v. U.S. Bank
Nat’l Ass’n, 45 N.Y.3d 461 (2025) (holding that FAPA’s retroactive application did not violate
the Contracts Clause of the U.S. Constitution); see also Article 13 LLC v. Ponce De Leon Fed.
Bank (Article 13 LLC III), 175 F.4th 397 (2d Cir. 2026) (holding that FAPA’s retroactive
application did not violate substantive and procedural due process under the U.S. Constitution).
Therefore, the Court rejects Plaintiffs’ arguments and does not consider them further. See, e.g.,
Assets Recovery 23, LLC v. Gasper, No. 19-CV-2628, 2026 WL 865837, at *8 n.11 (E.D.N.Y.
Mar. 30, 2026) (rejecting the plaintiff’s arguments that FAPA did not apply retroactively, and
any retroactive application was not constitutional given the recent opinions), appeal docketed,
No. 26-1141 (2d Cir. Apr. 29, 2026); U.S. Bank Nat’l Ass’n v. Singh, 253 N.Y.S.3d 664, 667
(App. Div. 2026) (same); HSBC Bank USA, N.A. v. St. Hillaire, 251 N.Y.S.3d 198, 205 (App.
Div. 2026) (same).
10 Neither party disputes that Plaintiffs can be bound by Plaintiffs’ predecessor-in-
interest, FV-1, commencing the 2007 State Foreclosure Action. Case law explicitly holds that a
plaintiff will be bound to the statute of limitations from a prior action that was commenced by
that plaintiff’s predecessor-in-interest. See Article 13 LLC II, 45 N.Y.3d 453 (holding that “even
if a prior foreclosure action was commenced by another party not in possession of the
underlying note, and that action was discontinued without an express determination by the court
that the instrument was not validly accelerated, the six-year statute of limitations accrued on the
date that action was commenced and continued to run from that date” (emphasis added)); see
also Assets Recovery 23, LLC, 2026 WL 865837, at *5 (denying the plaintiff’s argument that the
“court should disregard the 2009 acceleration because the 2009 [a]ction was filed by [its
predecessor] — not the current [p]laintiff” and finding that it did not impact the accrual date of
the statute of limitations pursuant to Section 8 of FAPA).
statute of limitations, which expired in 2013.11 See Assets Recovery 23, LLC, 2026 WL 865837,
at *6 (holding that the mortgage debt was accelerated and the six year statute of limitations
began to run when the plaintiff’s predecessor-in-interest commenced the prior action more than
six years prior); HSBC Bank USA N.A. v. Corrales, 206 N.Y.S.3d 330, 332 (App. Div. 2024)
(same); MTGLQ Invs., L.P. v. Singh, 190 N.Y.S.3d 415, 417 (App. Div. 2023) (same); see also
U.S. Bank Nat’l Ass’n v. Singh, 253 N.Y.S.3d 664, 666–67 (App. Div. 2026) (holding the debt
was validly accelerated when the plaintiff commenced the previous action and elected to call due
the entire outstanding amount); HSBC Bank USA, N.A. v. St. Hillaire, 251 N.Y.S.3d 198, 204–05
(App. Div. 2026) (same).
FAPA, which applies retroactively, bars Plaintiffs from raising a defense arguing that the
acceleration triggered by the 2007 State Foreclosure Action was invalid. See Assets Recovery
23, LLC, 2026 WL 865837, at *9 (holding that the plaintiff was “estopped from challenging the
validity of [the plaintiff’s predecessor-in-interest]’s 2009 acceleration under Section 7 of FAPA”
where the plaintiff argued that its predecessor-in-interest lacked standing at the time of the
commencement of the prior action (internal quotation marks omitted)); HSBC Bank USA v.
Mathew, No. 2023-12110, --- N.Y.S.3d ---, ---, 2026 WL 2035975, at *2 (App. Div. July 15,
2026) (holding that “the plaintiff [was] estopped from asserting that the debt was not validly
accelerated by the commencement of the 2007 action based on lack of standing” because “the
2007 action was not dismissed based on an expressed judicial determination that the mortgage
11 Plaintiffs do not dispute that the statute of limitations would have started to run when
the 2007 State Foreclosure Action was commenced. (See generally Pls.’ Opp’n; Pls.’ Suppl.
Opp’n.) Instead, they argue that because the 2007 State Foreclosure Action was “void for lack of
personal jurisdiction and brought by an entity that lacked authority to accelerate the debt,” the
acceleration was “no[t] legally effective.” (Pls.’ Suppl. Opp’n 1.) Plaintiffs contend that as a
result, the statute of limitations did not start to run with the commencement of the 2007 State
Foreclosure Action but instead with the commencement of the 2015 Federal Foreclosure Action.
(Id. at 1–2.)
debt was not validly accelerated”); see also Article 13 LLC II, 45 N.Y.3d at 453 (holding that
Section 7 of FAPA applies retroactively and “even if a prior foreclosure action was commenced
by another party not in possession of the underlying note, and that action was discontinued
without an express determination by the court that the instrument was not validly accelerated, the
six-year statute of limitations accrued on the date that action was commenced and continued to
run from that date, tollable only as provided for under FAPA”); Van Dyke, 45 N.Y.3d at 474
(holding that FAPA apples retroactively and to any action where “a final judgment of foreclosure
and sale has not been enforced”).
The exception found within Section 7 of FAPA, which applies estoppel “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,” is not applicable because the
dismissal of the 2007 State Foreclosure Action did not address the acceleration or Plaintiffs’
predecessor-in-interest’s standing — instead, it was dismissed for Plaintiff’s failure to effect
service. (2007 State Foreclosure Action Order 2.) See, e.g., Assets Recovery 23, LLC, 2026 WL
865837, at *9 (finding the exception within Section 7 of FAPA was inapplicable because the
previous action was discontinued without the court making a finding that the plaintiff’s
predecessor-in-interest lacked standing to bring the action and the debt was not validly
accelerated); Bank of N.Y. Mellon v. DeMatteis, 199 N.Y.S.3d 79, 87 (App. Div. 2023) (finding
the exception within Section 7 of FAPA was inapplicable where the previous action was
dismissed for the plaintiff’s failure to effectuate personal service upon the defendant and failure
to prosecute against the other defendant); cf. 7208 Ct. Holdings LLC v. U.S. Bank Nat’l Ass’n as
Tr. for Terwin Mortg. Tr. 2005-18Alt Asset-Backed Certificates, Series 2005-18Alt, 258
N.Y.S.3d 893 (Sup. Ct. 2006) (considering a statute of limitations defense and finding that the
statute of limitations had not expired where the previous action was “dismissed for lack of
standing by an express judicial determination . . . [finding] the loan was never accelerated”).
Therefore, because the statute of limitations expired seven years prior to the
commencement of this lawsuit, the action is time-barred and the Court is foreclosed from
considering any arguments made by Plaintiffs that the 2007 State Foreclosure Action was not
validly accelerated.
c. Plaintiffs’ arguments
Even if Plaintiffs were not estopped from raising the alleged invalidity of the 2007 State
Foreclosure Action as a defense to the expiration of the statute of limitations, the Court finds
Plaintiffs’ arguments unavailing.
First, Plaintiffs argue that Judge Dearie’s decision in the 2015 Federal Foreclosure Action
(a) constitutes a judicial determination that the 2007 State Foreclosure Action was an invalid
acceleration, therefore making FAPA inapplicable, and (b) should not be disturbed despite a
subsequent change in law. (Pls.’ Opp’n 6–7.) At the outset, the Court notes that given the
enactment of FAPA and recent decision that FAPA applies retroactively, Judge Dearie, today,
would have been foreclosed from considering and deciding Plaintiffs’ invalid acceleration
argument based on their predecessor-in-interest’s lack of standing. See, e.g., Assets Recovery 23,
LLC, 2026 WL 865837, at *9 (finding that the court could not consider the plaintiff’s invalid
acceleration argument because “even if a prior foreclosure action was commenced by another
party not in possession of the underlying note, and that action was discontinued without an
express determination by the court that the instrument was not validly accelerated’ — as the
plaintiff who elected to accelerate the loan in the complaint lacked standing to foreclose on the
mortgage at the time it filed the complaint — ‘the six-year statute of limitations accrued on the
date that action was commenced and continued to run from that date’” (quoting Article 13 LLC
II, 45 N.Y.3d at 453)); see also supra section II.b for further case law. The Court will not
enforce a ruling that, given FAPA’s retroactive application, would not be legally permissible
today. See Peña Garcia v. Dir., Off. Of Workers’ Comp. Programs, 169 F.4th 111, 118 (2d Cir.
2026) (“This [c]ourt is obliged to apply the law as it currently stands.”); Walsche v. First Inv’rs
Corp., 981 F.2d 649, 653 (2d Cir. 1992) (“[T]he general rule [is] that a court must apply the law
as it exists at the time it renders its decision.”); Matter of Meegan S. v. Donald T., 64 N.Y.2d
751, 752 (1984) (“The earlier decision may be a conclusive adjudication of the [plaintiff’s]
rights, existing then; it cannot be an adjudication of rights thereafter conferred by law.”).12
Moreover, when the legislature enacts a statute that applies retroactively, prior judicial
interpretations of the superseded statutory language no longer control. See Deborah A.
Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of
Congressional Overrides, 84 Notre Dame L. Rev. 511, 514 (2009) (“[O]verrides do, in fact,
override: that is, that by enacting an override Congress effectively supersedes statutory
interpretations by the courts.”); Tismer v. N.Y. Edison Co., 228 N.Y. 156, 163 (1920) (holding
12 In addition, Brooks argues that the Court should not accept Plaintiffs’ argument that
the Court must not disturb Judge Dearie’s decision from the 2015 Federal Foreclosure Action
because Second Circuit case law is clear that a dismissal for lack of standing is not considered
dismissal “on the merits” for res judicata to give the decision preclusive effect. (Def.’s Suppl.
Reply 4–5.) While Brooks is correct that “[d]ismissal for lack of statutory standing is not ‘on the
merits’ and therefore lacks res judicata effect,” Fed. Treasury Enter. Sojuzplodoimport v. Spirits
Int’l B.V., 809 F.3d 737, 745 (2d Cir. 2016); Diaz v. Judge Advoc. Gen. of the Navy, 413 F.
App’x 342, 343–44 (2d Cir. 2011) (“A dismissal without prejudice for lack of subject matter
jurisdiction is not a dismissal ‘on the merits’ for claim preclusion purposes.”), the 2015 Federal
Foreclosure Action was adjudicated on the merits, culminating in Judge Dearie’s post-trial
decision. CTJ Invs. LP v. Brooks, No. 15-CV-475, 2019 WL 2571151, at *4 (E.D.N.Y. June 20,
2019). Brooks’ argument misunderstands the holding of the 2015 Federal Court Foreclosure
Action which found that the plaintiff in the 2007 State Foreclosure Action lacked standing, a
decision on the merits. See id. Brooks conflates this holding with a finding of lack of standing
in the 2015 Federal Foreclosure Action such that Judge Dearie’s decision should not be given
preclusive effect. Therefore, the Court would not be foreclosed from applying res judicata and
giving Judge Dearie’s decision preclusive effect but, for the reasons discussed, the Court
declines to do so.
that a “decision has become obsolete through an amendment of the statute”); Chamberlain v. W.
Transp. Co., 44 N.Y. 305, 309 (1871) (“The prior law, whether it be statute or common law, is to
prevail, unless the subsequent statute, by a fair and proper construction repeals or modifies it . . .
. [Where a statute is] a remedial statute . . . [,] enacted to remedy the rigor of the common law,
which it was deemed unwise, on grounds of public policy, to continue . . . [i]t should, therefore,
be construed . . . to carry out the policy which it was enacted to promote.”); Sayre v. Wisner, 8
Wend. 661, 664 (N.Y. Sup. Ct. 1832) (“It cannot be denied that the statute in question creates a
new rule, and the essence of a new rule is, that it forms a rule for future cases.”); see also
Deborah A. Widiss, How Courts Do-and Don’t-Respond to Statutory Overrides, 104 Judicature
50, 56 (2020) (“Overrides are not self-implementing. They are only effective if other legal
actors properly apply the new statutory standard, rather than the prior judicial precedent.”).
Therefore, the Court is not constrained by Judge Dearie’s decision in the 2015 Federal
Foreclosure Action.
Second, Plaintiffs argue that Article 13 LLC II and Van Dyke are inapplicable because
“both decisions presuppose a prior action that was validly commenced and jurisdictionally
sound.” (Pls.’ Suppl. Opp’n 1, 3.) Instead, they argue that the 2007 State Foreclosure Action
was not properly commenced. (Id.) Nowhere in either opinion does the New York Court of
Appeals discuss or mention that a condition precedent to their decisions was that the prior action
was “validly commenced and jurisdictionally sound.” See Article 13 LLC II, 45 N.Y.3d 441;
Van Dyke, 45 N.Y.3d 461. The Court will not read into the New York Court of Appeals’
decision a requirement not specifically addressed in the court’s opinion which would
significantly limit the opinion’s broad applicability. See John v. Kingsbrook Jewish Med.
Ctr./Rutland Nursing Home, No. 11-CV-3624, 2014 WL 1236804, at *8 (E.D.N.Y. Mar. 25,
2014) (declining to adopt a party’s “narrow interpretation of the caselaw”), aff’’d sub nom. John
v. Kingsbrook Jewish Med. Ctr., 598 F. App’x 789 (2d Cir. 2015); Madison Square Garden, L.C.
v. Nat’l Hockey League, No. 07-CV-8455, 2007 WL 3254421, at *6 (S.D.N.Y. Nov. 2, 2008)
(rejecting a party’s “unduly narrow reading of the case law”), aff’d, 270 F. App’x 56 (2d Cir.
2008); Commc’ns Workers of Am., AFL-CIO v. W. Elec. Co., 430 F. Supp. 969, 977 (S.D.N.Y.
1977) (“declin[ing] to extend the holding of [a precedent] beyond the precise question presented,
at least until [the court is] directed by higher authority to do so”). Moreover, Plaintiffs base their
argument on an alleged distinction of Article 13 LLC II and Van Dyke because the opinions do
not involve “foreclosure action[s] dismissed for lack of personal jurisdiction.” (Pls.’ Suppl.
Opp’n 1.) However, both Article 13 LLC II and Van Dyke involved situations where the plaintiff
in the previous action allegedly lacked standing to bring the prior foreclosure action — and both
held that FAPA could be applied retroactively to preclude the plaintiffs from raising that
argument. See Article 13 LLC II, 45 N.Y.3d at 455–56 (explaining that “allegedly invalid
foreclosure actions are almost always started in one of two ways: . . . [such as where] a party that
has purchased a note and mortgage cannot prove that it had actual possession of the note at the
time it commenced the foreclosure action” and holding that Section 7 of FAPA “does not deprive
the noteholder of the ability to protect its property interest”); Van Dyke, 45 N.Y.3d 461 (finding
FAPA’s retroactive application constitutional where the noteholder lacked standing to foreclose
under the loan agreement). Plaintiffs’ attempt to limit the application of Article 13 LLC II and
Van Dyke fails — dismissal of a lawsuit for lack of standing is similarly a determination that a
prior action was not “validly commenced and jurisdictionally sound.” (Pls.’ Suppl. Opp’n 1, 3.)
See Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 130 (2011) (holding that because
the “respondents lacked standing to commence th[e] action, [ ] their suit must be dismissed for
want of jurisdiction”); Fund Liquidation Holdings LLC v. Bank of Am. Corp., 991 F.3d 370, 386
(2d Cir. 2021) (“[A] case initiated in the name of a plaintiff that lacks standing is an incurable
nullity.”). Accordingly, subsequent case law has applied Article 13 LLC II and Van Dyke even
where there was a question of whether a prior action was, as Plaintiffs style it, “validly
commenced and jurisdictionally sound.” See Assets Recovery 13, LLC, 2026 WL 865837, at *9
(applying Article 13 LLC II and holding the plaintiff was foreclosed from raising a statute of
limitations defense where there was a question about whether the plaintiff’s predecessor-in-
interest had standing to commence the prior action and therefore, could not have validly
accelerated the statute of limitations); HSBC Bank USA, 2026 WL 2035975, at *2 (applying
Article 13 LLC II and Van Dyke and holding the court was barred from considering the plaintiff’s
defense where the plaintiff challenged the acceleration of the prior action due to their
predecessor-in-interest’s alleged lack of standing); see also Article 13 III LLC, 175 F.4th 397
(not disturbing its previous opinion holding that the plaintiff was estopped from arguing that the
prior foreclosure action was invalid to accelerate the mortgage because it previously did not have
standing in the prior action after Article 13 LLC II’s decision holding FAPA applied
retroactively). Plaintiffs’ second argument therefore fails.
Third, Plaintiffs argue that the 2007 State Foreclosure Action was “void for lack of
personal jurisdiction” and a “legal nullity” and therefore “was no[t] [a] legally effective
acceleration to which FAPA’s estoppel provision could attach.” (Pls.’ Suppl. Opp’n 1, 4–5.) In
addition, although N.Y. C.P.L.R. § 213(4) “addresses the effect of prior actions in which a court
exercised adjudicatory authority,” Plaintiffs contend “[t]hat analysis has no application where, as
here, the Queens [County] court never acquired adjudicatory authority over the borrower in the
first place.” (Id. at 4.) Plaintiffs rely on legislative intent, to argue that FAPA “was enacted to
prevent lenders from re-litigating standing-based acceleration arguments after prior valid actions
were dismissed” and “does not bar challenges based on lack of personal jurisdiction, lack of
authority to accelerate, or the legal nonexistence of the prior action.” (Id. at 5 (emphasis added).)
Contrary to Plaintiffs’ arguments, FAPA does not include a carveout for prior actions allegedly
not “validly commenced,” such as due to a lack of personal jurisdiction over the defendant given
the failure to effectuate service — FAPA only excludes prior actions where there was a judicial
determination in that prior action that the outstanding debt was invalidly accelerated upon the
commencement of the prior action and that the statute of limitations did not start running. FAPA
§ 7. The Court will not read into FAPA a requirement that otherwise does not exist as this is a
job specifically designated to the legislature. See Van Dyke, 45 N.Y.3d at 478 (“[a]ffording the
requisite ‘defer[ence] to legislative judgment’ in this arena regarding ‘the necessity and
reasonableness of’ FAPA’s relevant provisions” given “the provisions operate in the ‘highly
regulated’ landscape of mortgage foreclosure litigation — an area long wrought with competing
interests and complex policy judgments and in which ‘the allocation of economic benefits and
burdens has always been subject to adjustment’” (second alteration in original) (first quoting
Energy Rsrvs. Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 413 (1983); and then quoting
Am. Economy Ins. Co. v. New York, 30 N.Y.3d 136, 152 (2017))); see also Olivieri v. Stifel,
Nicolaus & Co., 112 F.4th 74, 89 (2d Cir. 2024) (“[W]e do not lightly assume that [the
legislature] has omitted from its adopted text requirements that it nonetheless intends to apply.”
(internal quotation marks omitted)); United States v. Forney, 813 F. Supp. 3d 357, 364
(E.D.N.Y. 2025) (“To read such a requirement into the statute violates the well-established
principle that courts do not read in a requirement that [the legislature] omitted.”).
In addition, Plaintiffs fail to cite to case law in support of their argument for this carve
out. (See generally Pls.’ Suppl. Opp’n 5–6.) Plaintiffs point only to one case, Nichols v. U.S.
Bank, 227 N.Y.S.3d 371 (App. Div. 2025), which they argue stands for the proposition that
“[N.Y.] C.P.L.R. § 213(4) does not estop a lender from asserting that a loan was never validly
accelerated where a prior foreclosure action was dismissed based on an express judicial
determination that the purported acceleration was ineffective.” (Id. at 5 (quoting Nichols, 227
N.Y.S.3d 371).) However, Nichols is distinguishable for two reasons: (1) the court in the action
prior to Nichols determined that the plaintiff “failed to establish . . . proper mailing of the notice
of default, a contractual condition precedent to acceleration of the debt”; and (2) given the prior
action’s express determination that the debt acceleration was a “nullity,” the Nichols court
determined that Section 7’s exception was applicable and therefore, it was allowed to consider
the statute of limitations defense. Nichols, 227 N.Y.S.3d at372–73. In the current case, the 2007
State Foreclosure Action did not make a judicial determination about whether the debt was
properly accelerated and therefore, the Court is precluded from considering Plaintiffs’ argument.
Further differentiating Nichols from the current case, Plaintiffs have failed to show that, pursuant
to the Mortgage, “proper mailing of the notice [of the summons and complaint was] a
contractual condition precedent to acceleration of the debt” such that the 2007 State Foreclosure
Action could not have commenced the statute of limitations without proper service. Id. at 373
(emphasis added). Without indication to the contrary, the commencement of the 2007 State
Foreclosure Action initiates the running of the six-year statute of limitations. See N.Y. C.P.L.R.
§ 213(4). The Court does not find Nichols persuasive to its analysis. Contrary to Plaintiffs’
assertion, case law holds that the commencement of a prior action, despite a failure to properly
serve the summons and complaint upon the defendant, still accelerates the maturity of the debt
and starts the running of the statute of limitations. See Bank of N.Y. Mellon, 199 N.Y.S.3d at 87
(“[T]he fact that the complaint in the 2014 foreclosure action was dismissed insofar as asserted
against [the defendant] for failure to effectuate personal service upon it does not invalidate the
election of [the plaintiff] to exercise its right to accelerate the maturity of the underlying debt.”);
Fed. Nat’l Mortg. Ass’n v. Woolstone, 147 N.Y.S.3d 458, 459 (App. Div. 2021) (“Contrary to the
plaintiff’s contention, the fact that the . . . prior action was dismissed as against the defendant for
failure to effectuate personal service upon him does not invalidate the plaintiff’s election to
exercise its right to accelerate the maturity of underlying debt.”); Beneficial Homeowner Serv.
Corp. v. Tovar, 55 N.Y.S.3d 59, 60 (App. Div. 2017) (same).
The Court’s decision aligns with the New York Legislature’s intent in enacting FAPA to
address “ongoing . . . abuses of the judicial foreclosure process and lenders’ attempts to
manipulate statute of limitations . . . exacerbated by recent court decisions.” Article 13 LLC II,
45 N.Y.3d at 450–51 (alterations in original). Before commencing any action accelerating
repayment of an entire outstanding amount for the loan and mortgage, the plaintiffs should be
certain to do their due diligence and ensure they properly can bring such an action. See id. at
455–56 (upholding Section 7 of FAPA and rejecting the argument that retroactive application
would be unconstitutional because it would deprive the noteholder of a “right to excuse the
foreclosure plaintiff’s own lack of diligence in ensuring and demonstrating that it had obtained or
possessed the note when its action was filed”). Failure to do so will not be rewarded by allowing
subsequent plaintiffs to manipulate the statute of limitations to their advantage. See Van Dyke,
45 N.Y.3d at 478 (reading FAPA’s provisions as “sensibly tailored to the specific litigation
practices that the legislature saw fit to curb via FAPA’s enactment: they narrowly bar successive,
collateral challenges to certain prior loan accelerations and curtail noteholders’ ability to
unilaterally reset the limitations period to foreclose” which also “advance the strong public
policy favoring finality, predictability, fairness and repose” (internal quotation marks omitted)).
III. Conclusion
For the foregoing reasons, the Court grants Brooks’ motion to dismiss and dismisses the
action with prejudice. The Court therefore denies the parties’ summary judgment motions as
moot.
Dated: August 20, 2026
Brooklyn, New York
SO ORDERED:
/s/MKB
MARGO K. BRODIE
United States District Judge