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RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) WHERE FINAL JUDGMENT HAS NOT BEEN RENDERED DOES NOT VIOLATE PLAINTIFF’S DUE PROCESS RIGHTS; HERE THE DEBT WAS ACCELERATED IN 2008 AND THE CURRENT FORECLOSURE PROCEEDING IS THEREFORE UNTIMELY PURSUANT TO THE FAPA (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Clark, determined the Foreclosure Abuse Prevention Act (FAPA) applied retroactively to render the foreclosure action untimely because the debt had been accelerated by a prior foreclosure proceeding in 2008. The Third Department determined the retroactive application of the FAPA to foreclosure actions where final judgment has not been rendered did not violate plaintiff’s due process rights:

In drafting FAPA, the Senate and Assembly sponsors both expressed an urgent need to correct judicial interpretation with unintended consequences which allowed noteholders to unilaterally “manipulate statutes of limitations to their advantage” and to the detriment of homeowners … . … [W]e find that FAPA should be applied retroactively to effect its beneficial purpose … . * * *

… [W]e find that retroactive application of FAPA to foreclosure actions where a final judgment has not been enforced does not violate plaintiff’s due process rights … . U.S. Bank N.A. v Lynch, 2024 NY Slip Op 05261, Third Dept 10-24-24

Practice Point: Where there has been no final judgment, retroactive application of the Foreclosure Abuse Prevention Act (FAPA) to render a foreclosure action untimely does not violate a plaintiff’s due process rights.

 

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