good afternoon your honors may please the court john burgundy on behalf of the plaintiff appellant wilmington savings wellington savings is appealing the district court's aug twenty third two thousand and eighteen decision in order dismissing it foreclosure action as a lower court erred on two grounds first the extension in modification agreement here is an independent mortgage lien held against the property which may be foreclosed upon regardless of the status of the underlying notes in mortgages and second the satisfaction of mortgage did not discharge the borrowers obligations under the extension in modification agreement rather the satisfaction of mortgage discharge their obligation soley under the first no second no third note and the prior seem at issue here now the trial court's reasoning overlooks the content of the extension and modification agreement itself along with its consolidated note and consolidated mortgage which were attached as exhibits to it all of which explicitly provide that borrowers obligations were being consolidated into one agreement which have to sort of pull together circumstantial evidence here or is there something that says this yes i know of nothing that in here at least you're going to enlighten me about that because well let's start with the consolidated no itself which is page eighty right on the top of page eighty the borrowers and the bank agreed that this no amends and restates in their entirety and is given in substitution for the notes described in exhibit a of the consolidation extension  modification agreement now the consolidated mortgage is consistent in this respect in that it superseding all prior mortgages and if you go back turning back i'm sorry to go in reverse order here but the first page of the extension and modification agreement page seventy seven provides and paragraphs two i should say sections two sections three and section four that it's restating and superseding all prior obligations owed by the what this does once and i thought that was just to sort of get them on the same wavelength in terms of what the conditions are of the of the lower economy but what it actually does it provides new obligations to the borrowers for instance the unpaid princip balance was reduced the interest rate was reduced the monthly payment was reduced and the maturity date was extended approximately just under two years so what this does is it provides new obligations for the borrowers which they complied with for eleven years before defaulting on their payment obligation all of that was the new ones with the old ones now we do know there's no dispute that the borrowers made their payments in accordance with the terms of the extension a modification agreement from two thousand and two through two thousand and thirteen when they defaulted so that we do that for if the agreements are simply consolidated three notes into one and provided that  instead you don't have the right you have to make three separate payments you just pay to make one payment pursuant to this agreement but what it actually does is it gives them the benefit here like i said it reduces their unpaid principle balance it reduces the interest rate because if you look at the interest rates of these particular notes they were at reduced because they had paid it off no it's not they have not paid off those they had not paid off those prior notes in mortgages so at that point to be the reason then why they did that to reduc i don't know the specific reason it's part of the record but typically in these situations it's done because either the borrower is in default or is about to go into default and typically what happens in these situations is either the borrower of the banks approach the situation saying or we need to do here is trying to work something out to ensure that a default does not occur and that the borrowers can remain in the property and the bank has secured collateral and if you go in what i was going to state was that if you look at the interest rates on the original notes the first note had an interest rate of almost nine percent the second one of over ten percent the third one of seven point seven five percent and what this did was reduce those interest rates to five point seven five percent they did receive a benefit here when they when they entered into this extension in modification agreement there was consideration provided to them as as any other contract would write and where it's not on your in your no i think we would it would it would a a big point we need to make here is that what the district court got in correct was the concept of enforceability of the extension of modification agreement versus the priority of the extension in modification agreement so what the district court did was it determined that the sima is not the operative agreement because following the satisfaction of mortgage th recorded here there was nothing left to be foreclosed upon because the extension in modification agreement was not a stand alone independent loan obligation and in doing so it relied upon cases concerning the priority of mortgages it did not rely upon cases regarding the enforceability of mortgages and the cases that i cited in my brief and had provided to this court subsequent to the party submissions here demonstrate that the the obligation that a party a bank is to foreclose upon is the extension in modification and agreement or in those cases it was the seam at issue i know there's a slight difference between our extension and modification agreement and the seam is at issue there but what all of them do is the same thing as they consolidate all the prior mortgages put together payment terms and that is the final mortgage lien of record so what i would think he is a starting point here is the plot case decided by this court on march twentieth approximately two weeks ago which provides that the sima is the independent mortgage lien that must be enforced and foreclosed upon that case further provides that when there are no intervening liens the sima will remain as the first mortgage lien of record for priority purposes only now this was discussed a little further by judge judge lindsay in the elliott case which was another submission that i had made and i believe this case was decided in february of two thousand and nineteen and she took it to the next step or she said that where there are intervening liens each of the prior mortgages retain their independent foreclose upon in the state of new york but when determining priority the seam it is the first mortgage of record only when there are no other intervening liens if there are intervening liens each of the prior mortgages retains their independent significance in the district court plaintiff appellant argued that it should be permitted to expunge in a rony of satisfaction it itself filed fourteen years ago so that it could proceed to foreclose on a series of three mortgages and having lost that argument  because the statute limitations had long run plaintiff now takes a different tact there were men complaining no they didn't and i had thought about that as well during my preparations for all or oral argument just cares and given them well i should say they amended their complaint once in this is the amendment and judge cares gave them another opportunity to submit for the argument and for the reasons and they declined to do so so they did thousand plan to file the satisfaction of mortgage which discharged the nine hundred ninety one and two thousand mortgages in the two thousand seem so plaintiff now has basically given up the argument it would seem that it should be allowed to expunge the satisfaction so on the statute of limitations argument to expunge the satisfaction and as the statue of limitations had long expired that was the only argument so yes it is the first argument this court addressed this issue before this court has addressed it in new jersey versus ph h mortgage corp when it affirmed the lower court's holding the lower court said a consolidation agreement combining multiple outstanding mortgages into a single lane is not considered a new mortgage where noon where no new money is included in the consolidation the court also stated quote a new mortgage is deemed to be created if the consolidation creates a new lean upon property not originally covered by the prior instruments this court stated in its affirmation quote in any event the consolidated mortgage does not represent an incumbrance independent from the two prior and undisputed mortgages it consolidates  no i don't think it does your honor respectfully because new york has long held long long since held that a consolidation extension modification agreement is a tool not a new lien it doesn't create a new lien it simply consolidates for the convenience of the borrower and the lender primarily i think it's to avoid paying extra mortgage tax but that's my surmise but the court of the state of new york has long held that it is not an independent leanin this court has hel to i don't think that this court's ruling in pla churches wells fargo changes that i don't think there's any conflict i know the court is aware that implies an implied church bought a condominium unit in a condominium for closure on a common charge on common charge foreclosure we all know that new york real property law three three nine zero says that that foreclosure is going to foreclose everything except a first mortgage so the issue before this court was whether or not a consolidated mortgage constituted a first mortgage under that statute in this court said look absent any intervening liens of course it does but what this court did not say and i know no court that did say that says when the component parts of a sema or an ema have been satisfied that you can foreclose think about the ramifications for a moment of that proposition let's say i borrowed one hundred dollars in two thousand and one and one hundred dollars in two thousand and two and then in two thousand and two they were consolidated but in two thousand and three i paid the first mortgage of one hundred dollars in full it was satisfied the first mortgage was cancelled and discharged of record according to plaintiffs because the debts were consolidated it should be able to go after the full two hundred simply because they were consolidated notwithstanding that the first mortgage was cancelled in this charge of record it's it's like borrowing the same dollar twice once for the underlying mortgages and again for the sima let's go step further let's say paid off both mortgages two hundred dollars i paid off the first and the second and there was a satisfaction issued but the satisfaction didn't say it is actually satisfying the sema what plaintiff is asserting is that it would be foreclose on the sima because even though the underlying debts were cancelled and discharged the sima wasn't mentioned in the satisfaction and that's exactly what they're trying to seem if the ema extension modification agreement reached a new obligation then it and then it's like i said it's like borrowing the same dollar twice and what a feat indeed that would be for a bank to do recall a new york law says that the satisfaction is prime aphasia evidence of payment it's done there are cancelled and discharged we all know now that they can't expunge that cancellation and discharge as they stand now for the sake of this case those liens the first second third mortgage and the c m a stand cancelled and discharged what the pla asking pursuant to your honor's question is allow us to foreclose on the ema but it's like taking money out of an empty bank account i think now i might risk of repeating myself so unless there are any further questions i'll rely on my br briefly in rebuttal what i would like to touch upon is that this issue was raised before the district court in fact judge carer's in his decision at and at oral argument had discussed the issue as to whether using the examples  about lending to various different notes and discuss that and ultimately judge harris held that extension a modification agreement was not a stand alone independent lien or mortgage obligations or things trying to understand the case but  was all the context of the complaint that you filed right in the complaint that which did not allege what you were claiming that you're making now i would suggest that it does it would and it did so in paragraphs ten eleven twelve thirteen and seventeen all of which would be found on appendix pages twelve through fourteen now while it didn't explicitly state plaintiff is foreclosing upon the extension and modification agreement separate and apart from the first note second no third note in seem it did specifically provide that the borrowers defaulted on their payment obligations under the mortgage loans including the extension a modification agreement and that there remained a principal balance of just under one hundred seventy thousand dollars at recess briefly reconvene in a few minutes