Spring 2024 Scholarship Essay Contest – Essay Topic and Application

THE STATUE OF LIMITATIONS (SOL) FOR NEW YORK STATE (NYS) FORECLOSURE ACTIONS - A COMPARISON TO DIFFERENT SOL’S

A) The Statue of Limitations (“SOL”) for Foreclosure Actions in New York State (“NYS”) - A Comparison to the SOL’s for Non-Foreclosure Actions in NYS:

Explain how the law of Statute of Limitations (“SOL”) works for Foreclosures Actions in New York State (“NYS”)? Compare the SOL for Foreclosures Actions in NYS to the SOL’s for other types of law suits in NYS? Give your opinion, whether the SOL for Foreclosure Actions in NYS should be more similar - in terms of its length, starting and ending point and/or other aspects - to other SOL’s for Non-Foreclosure Actions in NYS?

B) The SOL for Foreclosure Actions in NYS - A Comparison to the SOL’s for Foreclosure Actions in States Other than NYS and/or to the SOL’s for Foreclosure Actions in Countries Other than the United States (U.S.):

Compare the SOL for Foreclosure Actions in NYS to the SOL’s for Foreclosure Actions in other judicial foreclosure states in the United States (U.S). Also, compare, the SOL for Foreclosure Actions in NYS to the SOL’s, or any similar limitations, if any, in non-judicial foreclosure states in the U.S., and/or to the SOL’s for Foreclosure Actions in Countries Other than the United States (U.S.). Give your opinion, whether the SOL for Foreclosure Actions in NYS should be more similar - in terms of its length, starting and ending point and/or other aspects - to the SOL’s for Foreclosure Actions in other U.S. states and/or to the SOL’s for Foreclosure Actions in Countries Other than the United States (U.S.).

THE STATUE OF LIMITATIONS (“SOL”) FOR NEW YORK STATE (“NYS”) FORECLOSURE ACTIONS - THE MEANING, IMPORTANCE AND CHANGES IN THE TERMS “ACCELERATION” AND “DE-ACCELERATION”
A) “Acceleration” or the Start of the SOL for Foreclosures Actions in New York State (“NYS”):

What is the importance of “acceleration” as to the SOL for Foreclosure Actions in NYS? What in NYS constitutes “acceleration” of the mortgage for the purposes of the SOL for Foreclosure Actions? In your opinion does “acceleration”, as defined by NYS courts do justice as a practical, fair and sound basis for measuring the start of the SOL in NYS for Foreclosure Actions? Are there other possible measures or events that may be better measures - in terms of practicality and fairness - of the start of the SOL for NYS Foreclosure Actions?

B) De-Acceleration” or the End of the SOL for Foreclosure Actions in New York State (“NYS”):

Is there still relevance to the concept of “de-acceleration” as to the ending of the SOL for Foreclosure Actions in NYS? What in NYS, post-FAPA, currently constitutes a legitimate ending of the SOL for the purposes of Foreclosure Actions in NYS? If, after FAPA, “de-acceleration”, as formerly defined by NYS courts, has no remaining basis for measuring the end of the Foreclosure SOL in NYS, what is and/or should be a practical, fair and sound basis for measuring the end of the SOL for NYS Foreclosure Actions? In your opinion are any of the following a good measure - in terms of practicality and fairness - of the end of the SOL for NYS Foreclosure Actions: i) an mutually agreed upon dismissal, allowing settlement of the Foreclosure Action?; ii) a mutually agreed upon dismissal, without a settlement of the Foreclosure Action?; iii) a unilateral dismissal by the lender with forgiveness of part of the arrears which caused the Foreclosure Action?; iv) a Court’s granting of the borrower-defendant’s motion to dismiss?; And/Or v) a Court’s sua sponte dismissal of the Foreclosure Action? Would the lender’s unilateral and voluntary dismissal or motion to dismiss, always constitute a “de-acceleration”, which post-FAPA, would never constitute a legitimate ending of the SOL for the Foreclosure Action?

STATUE OF LIMITATIONS (“SOL”) FOR NEW YORK STATE (“NYS”) FORECLOSURE ACTIONS - THE CHANGES BROUGHT BY THE FORECLOSURE ABUSE PREVENTION ACT (“FAPA”) AND BY THE REJECTION OF ENGELS
A) How has the law on Statute of Limitations (“SOL”) in New York State (“NYS”)been affected by the Foreclose Abuse Prevention Act (“FAPA”)? What was the intent and purpose of FAPA? Explain, FAPA’s specific changes:

What did the NYS Legislature, in passing FAPA, mean by the term “abuse” that is central to the Act’s purpose and name? What kind of abuse were they referencing? And abuse by whom, was FAPA intended to end, as it was passed by the legislature of NYS? Was there only one narrow, purpose to FAPA, in ending “voluntary dismissal”, by the Lender-Plaintiff, as constituting “de-acceleration”, per the reversed holding of Engels? Or was the purpose of FAPA much more broad, and was it intended to end manipulation of the SOL by lenders and/or misplaced priorities by the judiciary, that have caused a disregarding and diminishment of the six (6) year SOL for Foreclosure Actions? Was FAPA a law that was intended by the NYS Legislature to cause a mild or radical change of approach by the NYS Courts, as to the SOL for Foreclosure Actions?

B) Is any part of the law before FAPA, under the precedent of Engels, still relevant? Did FAPA reject Engels completely?:

The Engels decision, was a decision by the New York State Court of Appeals, or the highest Court in NYS, that sought to comprehensively define the SOL for Foreclosures in NY. Engels sought to do so, in two parts; first by defining the SOL starting point as “acceleration”; and second by defining the SOL ending point as “de-acceleration”. FAPA, which was passed with the intent of reversing Engels, was a comprehensive statute, passed without much division, by the NYS Senate and Assembly. Yet FAPA focused almost entirely on the second part of Engels, dealing with “de-acceleration”, or the SOL’s debated end point. Does the FAPA agree, disagree or take no position on Engel’s, first part, dealing with “acceleration”, or the SOL’s starting point?

THE AFTER EFFECTS OF THE IMPLEMENTATiON OF THE FORECLOSURE ABUSE PREVENTION ACT (“FAPA”) AND BY THE REJECTION OF ENGELS
A) The After-Effects of FAPA - Give an Update on NYS Post-FAPA Judicial Cases Relating to the Statute of Limitations (“SOL”) as to Foreclosure Actions:

Assess the impact of FAPA and how it has been interpreted and implemented by the NYS Courts. Has FAPA radically altered the interpretation and proof for violations of SOL? Has FAPA practically lessened the burden of proof for the protection of the rights for consumers in the foreclosure area?

B) Explain the controversy over the retroactive effect of FAPA? How was FAPA intended, by the NYS Legislature, to have a retroactive effect and to apply retroactively?:

Do most laws having a prospective or retroactive effect? Why did the NYS Legislature believe that FAPA is so critical that it needs to apply retroactively? Why is this retroactive effect challenged as by some Lenders as “unconstitutional”? Give your opinion as to the applicability, necessity, fairness, practicability and constitutionality of the retroactive effect of foreclose in NYS.

FAPA AND THE BALANCE OF POWER
A) FAPA - The Balance of Power Between the Legislature and the Judiciary?

How does FAPA reflect on the balance of power between the NYS legislature and the NYS Judiciary? Is the Legislature the ultimate arbiter because it can pass laws that the courts need to follow? Or does the judiciary have the last say in interpreting the law and in deciding whether it is constitutional?

B) FAPA - The Balance of Power Between Mortgage Lending Banks and Consumer Borrowers?

How does FAPA reflect on the balance of power between banks, engaged in mortgage lending, and consumer borrowers, many of whom have residential mortgage loans? Do banks have overwhelming power in dictating the terms of mortgage loans and in giving themselves contractual and legal lopsided advantages in the relationship with borrowers? Or do consumer borrowers, as the majority of voters, in a political democracy, have the last say, in having the NYS and U.S. legislatures pass laws that are sensitive to protecting their rights as consumer borrowers, especially in the arena of family home ownership.