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HERE THE FORECLOSURE ABUSE PREVENTION ACT (CPLR 213(4)) ESTOPPED PLAINTIFF FROM ARGUING THE DEBT HAD NOT BEEN ACCELERATED ON A GROUND NOT RAISED AND ADJUDICATED PRIOR TO THE EXPIRATION OF THE STATUTE OF LIMITATIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Foreclosure Abuse Prevention Act (FAPA) (CPLR 213(4)) prohibited plaintiff mortgage company from asserting a defense to dismissal of the foreclosure action on statute-of-limitations grounds which had not been timely raised and adjudicated. Plaintiff tried to argue the debt was not validly accelerated because of a prior dismissal based on reference to the wrong property address:

Contrary to the plaintiff’s contention, it failed to raise such a triable issue of fact on the asserted basis that the prior action did not constitute a valid acceleration of the debt in light of BOA’s [Bank of America’s] use of the improper property address and the resulting dismissal of the action. “[T]he recently enacted Foreclosure Abuse Prevention Act … amended CPLR 213(4) by adding paragraph (a), which provides that “‘[i]n 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'” … .

Here, the prior action was not dismissed “on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” … . Thus, under FAPA, the plaintiff is estopped from asserting that the debt was not validly accelerated by the commencement of the prior action … . Reverse Mtge. Solutions, Inc. v Gipson, 2024 NY Slip Op 04335, Second Dept 8-28-24

Practice Point: This decision illustrates the effect of the Foreclosure Abuse Prevention Act which prohibits attacking a statute-of-limitations defense to a foreclosure action on a ground not timely raised and adjudicated prior to the expiration of the statute of limitations.

 

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