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THE PURPOSE AND REACH OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) EXPLAINED IN SOME DETAIL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined that the Foreclosure Abuse Prevention Act (FAPA) applied and required the dismissal of the complaint on statute of limitations grounds:

… FAPA’s enactment amended numerous CPLR provisions as well as other statutes, including: CPLR 213 (4) (a), stating that “[i]n any action [upon a note or mortgage], if the statute of limitations is raised as a defense, and if that defense is based on a claim that the [note] 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”; CPLR 203 (h), stating that “[o]nce a cause of action upon a [note or mortgage] has accrued, no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim”; CPLR 3217 (e), stating that “[i]n any action on [a note or mortgage], the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim”; and CPLR 205-a (a), prohibiting the six-month period savings provision within which a plaintiff may recommence an action if the original action was terminated due to any form of neglect.

Having determined that FAPA applies to this foreclosure action and turning to the merits underlying defendant’s motion for summary judgment based upon the statute of limitations, plaintiff is estopped from asserting that the mortgage debt was not validly accelerated pursuant to CPLR 213 (4), since the 2015 action was dismissed for plaintiff’s failure to prosecute and was not dismissed based upon an expressed judicial determination that the debt was not validly accelerated … . HSBC Bank USA, N.A. v Vesely, 2025 NY Slip Op 04279, Third Dept 7-24-25

Practice Point: Consult this opinion for an in-depth discussion of the purpose and reach of the Foreclosure Abuse Prevention Act (FAPA).

 

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