congregation this case involves the foreclosure of a mortgage find a mortgage buyer on their synagogue the underlying mortgage is a twenty five year five hundred twenty five thousand dollars mortgage which b so let me take the more i think important issue st which is the statue of limitations the law in new york is clear and it's been firm for the last eight years that the commencement of a mortgage foreclosure not something that happened here so one of the things that we think happened in one of the confusions is there's a difference between a note and a mortgage a note can exist independently of a mortgage you'll see that in the note there is no requirement for any notice to accelerate the no it just accelerates on the election of the lender which is the typical language you find in many of these cases but in the mortgage and this is where i think this is central to this case paragraph twenty five dollars has a provision that says that the whole of the principal some interest a q or shall become do with the option the mortgag default of any payment of installment or interest within thirty days of the date that the same comes to following notice to cure such the th so that's the notice that in the earlier action was not provided is under the mortgage not under the no so one of the things in preparing for this in looking at the case was there's a actually case for the nd part obviously most of the stuff comes out of state court because the state court foreclosure action is commenced on in november of two thousand and fourteen and the nd department hold that that nd action is time are because the statue of limitations started to run when the so obviously one of the issues that was a concern of the district court was whether or not there was an inconsistency in to your original startle from the prior action so i think it's important for the court to look notice and it went to trial and the trial only involved plaintiffs trying to prove up their case so they take went to trial after this point and purchased the mortgage which they thought purchase it and they went to trial without any proof that them that the notice was ever sent or when it was sent and if you read justice ways decision she points out that plaintiff consumed they cannot state what date the receptionist mailed the notice of default or cure prior to the commencement of the action so one of the things that i think the district court got wrong and plaintiff gets wrong is there was never a finding or even an argument  in in a prior action that the note was not accelerate the argument was that a condition proceeding to commencing a foreclosure was not meant and if you read again if you read carefully the note versus the mortgage you will see that there is no precondition to accelerating the note but there is a precondition to the mortgage and that's because obviously new york was and is is very protective of  than six years let me talk quickly about the lack of notice if you are assuming that the alternative argument and is that the notice they're arguing that there's a june nd two thousand and seventeen letter which is a proper notice to cure it is interesting although although the defendant is accused of an inconsistency it's actually the plaintiff that's inconsistent because when you look at their own notice they actually presume when they send that in two thousand and seventeen that the whole of decency ever being given an opportunity to cure this flaw which is the bargain d for right under the mortgage thank you consist of i i think that consist of the principal accelerate it to the end of the mortgage all of it that's part of our our point which is that they're not just arguing for they're not just saying you've got to pay us for the missed installments they're asking for the principle that would not be due for at that point of two thousand i think it's everything i mean it's basically treating the mortgage as though what we know is going to already been accelerated so it's basically not seeking that's our point it's not seeking missed installments it's not an error about the instalments it's treating the mortgage or the note as if it were already accelerated because there's a saying in order to cure you have to pay all of the principal do under the note so what they're asking for in the note is all the principal all of the interest and interesting way they're asking for the fall of the interest back to two thousand and eleven which is an interesting indication because two thousand and eleven would be six years before the  sent so it's recognising that there's a limitation limitation issue but clearly in this the only way to read this two thousand and seventeen letter is to treat it as though it already been accelerated sufficient to accelerate the entire payment such that it takes it out of the special limitations but it wasn't sufficient to constitute a notice to tour under the contract it seems kind of like you're trying to have it both ways and i'm just having a hard time reconciling with you i so i think i think what you need to understand is that the note could be accelerated while the mortgage might not be what what we're saying is is this a prior foreclosure auctions a factual rated an acceleration of the no but it didn't excel or rate of acceleration of the mortgage so what we're saying is that in two thousand and seventeen and this notice that constitutes does that constitute an acceleration of the mortgage and what we're saying is it does not because it actually exist independently of one another they could if they had sued on the note for example then they were now this problem they have a separate requirement for the mortgage so there's all kinds of additional covenants and requirements in the mortgage and this is something that was bargained for in the mortgage as a condition for foreclosure it would not have been a condition to sue on the no so they are separate and i think that goes to the essence of of of the way following is a quote from their closing argument where mortgage contains a provision require that the mortgagee provide the mortgage or with notice prior to accelerating the loan compliance with that requirement as a condition preceding to commencement of fore closure action he continues that that alone on the day that on that alone the defendant rests record pace one hundred and forty four congregation's post trial brief plaintiff has failed to show that there was compliance with the condition proceeding contained in the mortgage even more and this is absolutely critical in the record paid one hundred and ninety three again the congregation's own words it was determined by the presiding judge we're talking about a state court judge that the entire principle was never the fault that's crystal clear from their their declaration to be look at the record pages one hundred and ninety three dollars when ninety four dollars it challenges the amount of the principal and interest only the amount of the attorney's fees not the type of the fault but even if that number is inaccurate the case law is clear that that number doesn't have to be perfect and it's not determinative of whether or not the notice to cure is effective or not and judge it was are we refer this matter to a will have an opportunity to contest the default and so i don't think that's fatal even if it is an accurate and lastly with respect to their briefing on this point each and every one of their cases cited to a residence alone not a commercial loan and lastly with respect to the separation between no and the mortgage the council was referring to earlier neither commonwealth nor any of the cases they cite stand for the proposition that the filing of a summons and complaint earlier necessary to serve a d s l aeration notice regarding the note because that was never excel a that's not what those cases say commonwealth held up a note in the mortgage or separate instruments to avoid the inevitable result that would follow if the planet was unable to still want to decelerated to stop the statue of limitations from running and that's actually illustrated if you look at the rd street l l c case that the congregation cites which by the way too is a residential loan it states to stop the statue of limitations the mortgagee maybe both its decision to accelerate the critical language here is the mortgage he they're not talking about them all no quarter they're talking about the mortgage so the argument that the no separate and apart from the and that decision to not be disturbed kind of a thing cannot be allowed to continue to avoid its contractual obligations after eleven years of this litigation happy to answer any questions you can help me with this your friend cited the case from a few weeks ago which i think you just mentioned but i was wondering if you could explain that a little bit more why that's different from the situation here because in those cases the mortgage was declared invalid and it would be an equitable to allow to allow a borrower to simply skate free and in those cases they did again they did not hold that note is accelerated by the commencement same because they're executed the same time into both regarding the saying that in the same property so the fact that you know doesn't expressly contain an acceleration clause doesn't mean it's celebrated alongside the mortgage and here we have a judicial determination that the mortgage was not excel rated in two thousand and ten in fact the congregation agrees by their own language and so i don't think you can separate the two ok so if that's right the statute of limitations actually nick celebration so that's why i think the case actually proves my point the quotes that are being made d to my predecessor counsel were all but the mortgage was not accelerating i read that record and i think it's worth reading the record very carefully because neither the judge nor counsel says you know you can use the word loan a few places which is defined in their papers as the mortgage and the loan so there's never an argument made that they know is not accelerating and that's not what justice wade help justice wade held that a precondition to to foreclosure going to make them up or we're going to stick to foreclose this no this doesn't do it there's no earlier no it doesn't do it's an obviously if you're asking a religious group to pass around a and save their synagogues they wouldn't they have a reasonable right to know that if they pay this money they're going to save the synagogue and that's the right that was never given to them by either this mortgage this purchaser of the mortgage or the previous mortgage or purchase or they just pursued it never to give them the bargain for