IN ANSWERING TWO CERTIFIED QUESTIONS FROM THE SECOND CIRCUIT, THE COURT OF APPEALS HELD THAT THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) APPLIED RETROACTIVELY AND DID NOT VIOLATE SUBSTANTIVE OR PROCEDURAL DUE PROCESS UNDER THE NEW YORK CONSTITUTION (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Wilson, answering two certified questions from the Second Circuit, determined (1) the Foreclosure Abuse Prevention Act (FAPA) took effect immediately upon enactment and applied to all foreclosure actions in which a final judgment of foreclosure has not been enforced, and (2), retroactive application of the statute does not violate substantive or procedural due process rights under the New York Constitution:

… FAPA Section 7 applies to “foreclosure actions commenced before the statute’s enactment.” FAPA achieved its clear purpose with straightforward statutory text. The portion of Section 7 of FAPA at issue in this case is codified at CPLR 213 (4) (b):

“[A] defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, 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.”

FAPA Section 10 then provides that “[t]his act shall take effect immediately and shall apply to all actions commenced on[, as relevant here, a residential mortgage loan agreement,] in which a final judgment of foreclosure and sale has not been enforced.” Article 13 LLC v Ponce De Leon Fed. Bank, 2025 NY Slip Op 06536, CtApp 11-25-25