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UNDER THE FORECLOSURE ABUSE PREVENTION ACT (FAPA), A DEFENDANT CAN RENEW A SUMMARY JUDGMENT MOTION AFTER A JUDGMENT OF FORECLOSURE AND AFTER THE TIME FOR APPEAL HAS EXPIRED AS LONG AS THE SALE HAS NOT YET BEEN CONDUCTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for renewal of its summary judgment motion in this foreclosure proceeding should have been granted. The motion was based upon the retroactive application of the Foreclosure Abuse Prevention Act (FAPA). Renewal should be granted after a judgment of foreclosure and after the time for appeal has expired if the sale has not yet been conducted:

Generally, “a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired” … . However, in Article 13 LLC v Ponce De Leon Fed Bank, the Court of Appeals clarified the application of the Foreclosure Abuse Prevention Act (FAPA), finding that it applies retroactively and to all foreclosure actions in which “a final foreclosure sale had not been enforced prior to its effective date, including actions pending at the time of its effective date” … .

A judgment of foreclosure and sale is deemed enforced when the sale is concluded … . Therefore, the only way to effectuate the retroactive application of FAPA after a judgment has been entered and the time to appeal has expired, is by filing a motion to renew before the sale is conducted … . Based on a change in the law with the enactment of the FAPA, [defendant’s] motion for leave to renew pursuant to CPLR 2221(e)(2), was timely … . 21st Mtge. Corp. v Jin Hua Lin, 2026 NY Slip Op 01116, First Dept 2-26-26

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) allows a defendant to renew a motion for summary judgment after a judgment of foreclosure and after the time for appeal has expired if the foreclosure sale has not yet been conducted.

 

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