Background and History of the FAPA: The NYS Legislature’s Strengthening of the Foreclosure Statute of Limitations

The Foreclosure Abuse Prevention Act (the “FAPA”) is a recent New York State Law dealing with foreclosure procedural rules where the New York State Legislature (the NYS Senate and Assembly) passed bills that were just signed into law by the NYS Governor, which are designed to be a legislative correction to NYS judicial decisions, affecting the statute of limitations in foreclosure actions, including the NYS Court of Appeals decision in Engel and associated cases. The FAPA (Senate Bill S5473, passed May 3, 2022, and the companion Assembly Bill A7737) was signed into law on December 30, 2022 by New York State Governor Kathy Hochul. The new statutory law, like the judicial case law which it is intended to overturn, in Court of Appeals decisions like Freedom Mortgage Corp. V. Engel, 37 NY3d 1 (2021)(“Engel”), is a dramatic and fundamental change as to New York State foreclosure law in general, and the law for statute of limitations for foreclosures in particular. See, https://www.nysenate.gov/legislation/bills/2021/S5473  

Because foreclosure law envelopes many policy decisions that affect relevant economic and social considerations in post-pandemic New York State, this new law, like many laws which have large impact but also significant ambiguities, will continue to raise issues in the NYS court system over it’s proper technical interpretation in specific situations. However, while the new law may require interpretation over its mechanical provisions, the intent of the new law is clear and bold which is to preserve the six (6) year statute of limitations for foreclosures as a strict time limit on foreclosure actions. The FAPA sends a message to our state’s courts that foreclosure plaintiffs need to be treated like other plaintiffs, who need to strictly abide by a statute of limitations set by the legislature that they should not be able to manipulate and unilaterally change. 

The mortgage industry and their supporters have seen the new law as an overreach into their rights to voluntarily discontinue a foreclosure action and end the running of the statute of limitations by voluntarily dismissing their own actions. They have argued that these changes would limit their ability to help borrowers in default on their mortgage. The position of the NYS legislature has been that the rights to end or pause a foreclosure were not being assailed in the FAPA, rather what was being challenged and changed was the use by lenders of these concepts in order to manipulate and expand the statute of limitations in a manner no other plaintiff in our judicial system was allowed. While lenders and their allies may feel that the new law singles them out, the legislature’s position was that it needed to single out this area because under Engel and related decisions and case law, foreclosure plaintiffs were being given by the courts undue advantages over homeowners in distress that no other group of plaintiffs were accorded. In a section called “Justification” in the beginning of the bill, the legislature explained: “There is an urgent need to pass this bill to overrule the Court of Appeals recent decision in Freedom Mtge. Corp. v Engel (37 NY3d. 2021). Engel effectively put the ability to unilaterally manipulate, arrest, stop, and restart the limitations period prescribed CPLR 213 (4), at will, directly in the hands of mortgage foreclosure plaintiffs and their servicers, to the clear detriment of New York homeowners. No other civil plaintiff in this state is extended such unilateral and unfettered powers.” 

Legislative Intent in the FAPA: A Clear and Strong Correction to Engel and Related Decisions

The FAPA Senate bill made very clear in another initial section of the bill called “Purpose and Intent of Bill” that their intent was to correct what were defined as “abuses of the judicial foreclosure process” where foreclosure plaintiffs and the courts through misinterpretation have engaged in judicial overreach leading to an easily manipulated and controlled foreclosure statute of limitations. The bill starts out stating: “The Legislature finds that there is an ongoing problem with abuses of the judicial foreclosure process; that the problem has been exacerbated by court decisions which, contrary to the intent of the Legislature, have given mortgage lenders and loan services opportunities to avoid strict compliance with remedial statutes and manipulate statutes of limitation to their advantage.”

The legislature was frustrated that foreclosure plaintiffs could unilaterally give themselves advantages that did not exist for plaintiffs in other areas, by controlling and manipulating the statute of limitations for foreclosures. The goal of the FAPA was to even the playing field for foreclosures; the legislature did not want lenders to be empowered by courts to effectively extend and control a statute of limitations set by the legislature at six (6) years. The law is strong in its intention to engage in an overhaul to the statutes dealing with the foreclosure statute of limitations to close loopholes, correct wrong jurisprudence and bring the law back to its original intent where the six (6) year statute of limitations was a real deadline for foreclosure actions as it is elsewhere. The Purpose and Intent Section explains: “The remedial aim of the bill is to thwart and eliminate abusive and unlawful litigation tactics that have been employed by foreclosure plaintiffs to the prejudice of homeowners throughout New York. That some of these tactics have been sanctioned by the judiciary has resulted in perversion of longstanding law and created an unfair playing field that favors the mortgage banking and servicing industry at the expense of everyday New Yorkers.”

3 FAPA’S Changed Provisions Greatly Limit Lenders, Borrowers and the Courts From Altering the Statute of Limitations for Foreclosures. 

The FAPA is not a completely new set of laws, but adds subsections to and revises specific parts of New York State’s existing laws dealing with foreclosures — the Real Property Actions and Proceedings Law (the “RPAPL”), the Civil Practice Law and Rules (the “CPLR”) and the General Obligations Law (the “GOL”). While the FAPA is intended to be a statutory clarification to the existing laws that deal with foreclosures, as with the existing law, there are sections that are potentially imprecise and ambiguous. Nonetheless, because the intent of the new law is so clearly to strictly enforce the foreclosure statute of limitations, any lack of clarity in the added and revised statutory sections should cause a court trying to interpret the new law to resort to the intent of the law, which is to prevent foreclosure plaintiffs from having advantages that the law does not give to other types of plaintiffs in the state’s judicial system. 

There are six (6) new subsections that resulted from the FAPA that add to existing NYS law dealing with the foreclosure statute of limitations. The new subsections are: CPLR 203(h); CPLR 3217(e); RPAPL 1301 (3)-(4); CPLR 213(4)(a)-(b); GOL 17-105(4)-(5); and CPLR 205(a). These new subsections of the FAPA are intended to prevent and/or severely limit the ability of lenders, borrowers and the courts to unilaterally alter, expand and/or manipulate the 6 year statute of limitations for foreclosure actions as will be shown in the sections below.

A. LENDERS CANNOT UNILATERALLY CHANGE THE STATUTE OF LIMITATIONS – 

The main intent of the FAPA is to prevent lender manipulation of the statute of limitations for foreclosures. Most of the FAPA (4 out of the 6 new subsections) is devoted to enacting new and revised laws that address and try to curb what used to be 

lender actions, tactics and approaches that allowed lenders to control and influence the running of the foreclosure statute of limitation. The FAPA’s newly added CPLR 203(h), newly added CPLR 3217(e), revised 

RPAPL 1301(3), newly added RPAPL 1301(4), and newly added CPLR 213 (4)(a)-(b) try to end what the legislature viewed as lender abuse.
Under new CPLR 203(h), which was added by the FAPA to CPLR 203. CPLR deals with the Method of computing periods of limitation generally. New 203(h) was added so that the accrual or the beginning point of a cause of action relating to a mortgage note can not be manipulated.  “Once a cause of action upon an [mortgage note] instrument ….

 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…” Essentially, in CPLR 203(h) the legislature tried to prevent what Engel allowed, which was a change in the start of the statute of limitations  after the loan was already accelerated, through the concept of “de-acceleration”. Engels held that “de-acceleration” of the statute of limitations for a foreclosure action was the result if the lender chose to voluntarily dismiss a foreclosure action. The FAPA was a repudiation of not just the Court of Appeals decision in Engel, and related decisions, but alsothe concept that voluntary dismissal resulted in “de-acceleration” which affected the statute of limitations. 

The legislative history for CPLR 203(h) states:

“Stated simply, the same way personal injury plaintiffs cannot unilaterally reset or otherwise extend the applicable statute of limitations to interpose their claim by “un-injuring” and then “re-injuring” themselves, this new subdivision makes clear that once a cause of action has accrued – meaning once an injury has been sustained, economic or otherwise – parties have no unilateral right or ability to declare themselves “un-harmed” and then “re-harmed” which, by design or happenstance,effectuates an unlawful extension of the time limited by law for interposition of the claim, unless expressly prescribed by statute.. . . . .

De-acceleration” is merely the lender’s election to revoke its demand for full payment; it does not “de-accrue” the claim for statute of limitations purposes. “Under the statute of limitations, the time within which a plaintiff must commence an action ‘shall be computed from the time the cause of action accrued to the time the claim is interposed. . . . .

While a “de-acceleration” notice or letter (or other unilateral writing or act of a lender) purporting to revoke a prior demand for immediate payment in full may not expressly reference the statute of limitations,
its effect, as erroneously permitted under existing decisional law, is to reset the statute of limitations on an already-accrued cause of action.”

Just as CPLR 203(h) dealt with the starting point of the six (6) year statute of limitations for foreclosure actions, CPLR 3217 dealt with the end point of the such period of time. CPLR 3217 gives guidelines as to when and how a plaintiff can dismiss its own action. The FAPA has added to CPLR 3217 subsection CPLR 3217(e), which states that although the plaintiff can dismiss their own foreclosure action, contrary to Engel, there is nothing the plaintiff can do to change the statute of limitations. CPLR 3217(e) states: “The voluntary discontinuance of such action [to enforce a mortgage note], whether on motion, order, stipulation or by notice, shall not in form or effect, waive, postpose, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim….” Therefore, under CPLR 3217(e), contrary to Engel, voluntary dismissal doesn’t alter the statute of limitations. 

The lender is further limited under RPAPL 1301(3)(which is revised by the FAPA) and RPAPL 1301(4)(which is added by the FAPA) in not being able to start a second foreclosure action, or for a money judgment on the note, while the first foreclosure action is pending . RPAPL 1301(3)-(4) only allows a second foreclosure action if the lender first had obtained court permission. As the the post-FAPA version of RPAPL 1301(3) states “The procurement of such leave shall be a condition precedent to the commencement of such other action and the failure to procure such leave shall be a defense to such other action. For purposes of this subdivision, in the event such other action is commenced without leave of the court, the former action shall be deemed discontinued upon the commencement of the other action….. “ RPAPL 1301(3)-(4) also also does not allow alternative non-foreclosure remedies for the same facts and events after the statute of limitations expires for the foreclosure action. 

Finally under CPLR 213(4), which deals with actions that have a six(6) year statute of limitations, the FAPA has added CPLR 213 (4)(a)-(b), which states that the lender cannot assert that the past acceleration of the loan was invalid “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.”

These changes under the FAPA in particular were aimed at what the legislature considered to be the manipulation of the statute of limitation by lenders when they initiate foreclosure actions and become foreclosure plaintiffs. Many actions, tactics and strategies lenders formerly depended on by lenders to avoid the running of statute of limitations may no longer work post-FAPA and would now need to reviewed and reconfigured by lenders. 

B. ALSO BORROWERS CANNOT UNILATERALLY CHANGE THE STATUTE OF LIMITATIONS – 

The FAPA also protects borrowers against themselves, so that they would not unintentionally, by mistake, though enticement or the manipulation of lenders, engage in actions that alter the statute of limitations where it would have otherwise lapsed. GOL 17-105 deals with “Promises and Waivers Affecting the Time Limited for Action to Foreclose a Mortgage”. Under revised GOL 17-105(4)-(5), which revises pre-existing GOL 17-105(4) and (5), there are many new limitations put on borrowers with regard to either accidentally or purposely waiving, agreeing or stipulating as to extending or stoping the running of the statute of limitations. 

Revised GOL 17-105(4) states in part: “An acknowledgment, waiver, promise or agreement, express or implied in fact or in law, shall not, in form or effect, postpone, cancel, reset, toll, revive or otherwise extend the time limited for commencement of an action to foreclose a mortgage for any greater time….”  

Revised GOL17-105(5) states in part: “This section does not change the requirement or the effect with respect to the accrual of a cause of action, nor the time limited for the commencement of and action based upon either: a) a payment or a part payment…b) a stipulation made in an action or proceeding.”

These revised provisions are meant to protect borrowers from unintentionally affecting the statute of limitations under a stipulation withdrawing a foreclosure action, or by making payments under a trial mortgage modification. Under pre-FAPA caselaw, these actions — even when the borrower was unaware that the statute of limitations has run, or was on the verge of expiring, and even where the borrower was not specifically informed that the stipulation will affect the statute of limitations and/or even when the borrower was enticed, misled and manipulated by the borrower — would often result in the statute of limitations defense being lost to the defendant. Now, it is apparent that these actions that in the past could take away the statute of limitations defense, going forward under the FAPA could no longer do so. 

Lenders may need to change their approach and make sure that any stipulation with a borrower lays out all relevant facts and gives all disclosures about the effect of the stipulation on the foreclosure statute of limitations. Going forward, stipulations by lenders to dismiss a foreclosure may need to change their wording and exactly what words stipulations to dismiss a case will have and exactly how they are presented to foreclosure defendants and how they are regarded by the courts remains to be seen. Also, a borrower’s payments under a trial mortgage modification will no longer affect the statute of limitations. What is clear is that the FAPA has greatly limited the ability of not only lenders, but also of borrowers to affect the statute of limitations.

C.  EVEN THE COURTS NO LONGER HAVE THE SAME LEVEL OF DISCRETION TO AFFECT THE STATUTE OF LIMITATIONS –

The legislature in enacting the FAPA was clear in that they were not just trying to limit lender abuse and manipulation of the statute of limitations, but also judicial misinterpretation that has resulted in decisions that are not in accord with the intent of the foreclosure statute of limitation laws. Therefore, the legislature in the FAPA has given the courts better direction in the form of clear legislative intent and new and revised statutes that attempt to prevent the previous issues. In addition, as will be seen below, the new approach in the FAPA is to have the new and revised statute subsections be more detailed and mechanical in addressing this topic and less dependent on judicial discretion. 

Under new CPLR 205(a), the “savings provision” — which allows plaintiffs a 6 month extension from the termination of the action, for the purposes of the statute of limitations — is greatly narrowed. Under the pre-FAPA version of CPLR 205(a), the four (x4) exceptions to the “savings provision”, where no 6 month extension was given, were: (1) Voluntary Dismissal (which although was never entitled to a “savings provision” extension under CPLR 205(a), was otherwise not an issue for lenders due to Engel’s “de-acceleration”, but now post-FAPA is clearly an issue for lenders); (2) Dismissal on the Merits; (3) Dismissal Based on Failure to Obtain Jurisdiction; and (4) Neglect to Prosecute. But, under the pre-FAPA version of CPLR 205(a), the last item, neglect to prosecute, set a high level of proof for a “pattern of continuous neglect” and required an evidentiary finding by the Court that that standard was met. The pre-FAPA CPLR 205(a) in giving the courts discretion over a potentially ambiguous standard stated: “Where a dismissal is one for neglect to prosecute the action made pursuant to Rule thirty-two under sixteen of this chapter or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.“ The pre-FAPA CPLR 205(a) standard for neglect to prosecute created a great deal of uncertainty and set a high standard to deny a foreclosure plaintiff use of CPLR 205(a) when there were one or two instances of neglect which resulted in dismissal. Unless the court found a “general pattern of delay”, which implies many and continuous instances of neglect, the typical situation of a technical or procedural error by the lender which causes dismissal would not meet this standard and would the lender would still be entitled to the 6 month “saving provision”. Most technical or procedural dismissals, which are the majority of involuntary dismissals, would not usually have a finding of “general pattern of delay” and therefore would not be deemed to be a “neglect to prosecute”. The result was that under pre-FAPA CPLR 205(a), the 6 month “savings extension” would apply to save most technical and/or procedural dismissals. The general consensus of was that pre-FAPA CPLR 205(a) saved almost any dismissals that were not on the merits where the case was over six years old and the dismissal would result in a statute of limitations problem for the lender. 

However, post-FAPA the new subsection CPLR 205(a) greatly broadened the exception of “neglect” to include: “A Dismissal of the Complaint for any form of neglect, including, but not limited to those specified in [ CPLR 3126(3), CPLR 3215, CPLR 3216, CPLR 3404] …..for violation of any court rules or individual part rules, for failure to comply with any court scheduling orders, or by default due to nonappearance for conference or at a a calendar call, or by failure to timely submit any order or judgment…..”  Essentially, under the new post-FAPA version of CPLR 205(a), now “any form of neglect”, which includes virtually every kind of technical or procedural dismissal based on any level of oversight, delay, or mistake by the lender would be included in the exceptions for the 6 month “savings provision”. This change is a major change from the pre-FAPA CPLR 205(a) which excused and saved most procedural or technical dismissals. Under the new post-FAPA CPLR 205(a) these procedural or technical dismissals would probably fall under the very broad, new standard for “neglect” and be subject to the 6 year foreclosure statute of limitations,  

The post-FAPA version of CPLR 205(a) also narrows the savings provisions in the following ways:
1) One Time Use – The “savings provision” can only be used once, “In no event shall the original plaintiff receive more than one six-month extension.”
2) Original Plaintiff – The “savings provision” can only apply to the original plaintiff, “A successor in interest or an assignee of the original plaintiff shall not be permitted to commence the new action, unless pleading and proving that such assignee is acting on behalf of the original plaintiff.”
3) Same Transactions and Occurrences – A new action started under the “savings provision” needs to be based on the same facts and occurrences. “The original plaintiff, …. may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months following the termination…..”
4) Service Completed on Original Defendant in 6 Months – The service of the new summons and complaint must be completely concluded during the 6 month extension, “….provided ….. that service upon the original defendant is completed within such six-mont period .”

Under the FAPA, the “savings provision” of CPLR 205(a) has been greatly narrowed. Most technical or procedural dismissals for a foreclosure cause of action, where there is potential neglect by the plaintiff, and which are outside of the 6 year statute of limitations, would presumably not be saved post-FAPA. The FAPA’s other limitations and narrowing of CPLR 205(a) also significantly reduce its applicability. Under the new CPLR 205(a) the courts no longer have a wide breadth of discretion to decide when the savings extension applies and when it does not. Now Post-FAPA, the “savings provision” would not apply to most situations thereby fulfilling the legislative intent of the NYS legislature in strengthening the foreclosure statute of limitations to prevent manipulation and abuse by lenders. Therefore, by narrowing CPLR 205(a), the legislature has further made the foreclosure statute of limitations operate more like other statutes of limitations which have consequences when they are exceeded and provide a real limit on foreclosure actions.

4. The FAPA is to be an Immediately Applied and Retroactive Law as to All Pending and Future Foreclosure Actions

The new law applies retroactively to any pending foreclosure action filed before December 30, 2022, for which a final judgment and order of sale has not been enforced. The Senate Bill in its conclusion to section 10 which is titled “Immediate and Retroactive” states:  “This act shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred  thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced.”The emphasis on the “enforcement” rather than the entry of a final judgment of foreclosure and sale means that the new law will presumably apply to any existing foreclosure action where the property has not yet been sold at at a foreclosure auction. The word “final” in describing the judgment of foreclosure and sale could also be interpreted to state that the judgment is no longer open to appeal and is not being contested.

It is the retroactive and immediate aspect of the new law that may have some legal challenges on due process and constitutional grounds. See, https://www.mayerbrown.com/en/perspectives-events/publications/2022/05/the-past-is-the-present-new-york-legislature-passes-retroactive-foreclosure-bill ; and ttps://www.mayerbrown.com/en/perspectives-events/publications/2023/01/new-york-enacts-retroactive-foreclosure-legislation. However, the expectation is that this law given its intent to level the playing field and in order not to give mortgage lenders advantages in the court system which are not given to other plaintiffss, will be well accepted by the public and hard to challenge given the reality that the statute of limitations in other areas of the law have had far fewer exceptions, loopholes and manipulation. Laws surrounding housing and foreclosure in particular have protection of homeowners in distress as a goal and it is expected that the FAPA, which was passed by both houses of the New York State legislature and signed without changes by the New York State Governor will withstand challenges despite some controversy over its immediate and retroactive effect.

5. How the Courts, and Lenders and Borrowers are Expected to React to the FAPA

Therefore, the new FAPA is expected to quickly make its debut in the NYS court which are required to apply it immediately and retroactively to all pending foreclosure actions. Given the fluctuations and previous uncertainty of the foreclosure statute of limitations, the new law will be expected to quickly change the way the courts, lenders and borrowers deal with cases, especially where there have been complications and/or delays and more than one filed foreclosure action. 

a) Courts Expected Reaction to FAPA – The Courts will need to interpret the new FAPA law, since not all the new and revised provisions are totally clear with how they will mechanically work. However, the courts are being aided by a very clear legislative intent and purpose that will assist them in doing so. The Courts will need to reexamine and address with a new approach pending foreclosures that may have a statute of limitations issues. To the extent the commencement of a previous foreclosure action accelerated the mortgage and was thereafter dismissed and only later restarted, such fact patterns will need to be reassessed retroactively. Just because a dismissal in a complex case may have previously been regarded as irrelevant for the purposes of statute of limitations does not mean that it remains so under the FAPA. If a dismissal was either voluntary, pursuant to a stipulation and/or pursuant to payments under a trial modification, they may not have ended a previous acceleration. Particularly in long, complicated and messy foreclosure cases need to be looked at again by the Courts. In some of them there could be a violation of the statute of limitations per the FAPA which was previously overlooked given the the past uncertainty and fluctuations as to the foreclosure statute of limitations law. 

Courts have to also look beyond the FAPA at the true intent of the legislature which is telling the courts to otherwise treat foreclosure plaintiffs no better than other plaintiffs in the NYS court system. To the extent there are other areas where lenders are given advantages that other plaintiffs do not generally obtain, such other advantages should be reassessed since they may also be curtailed in the future by the legislature.

b) Lenders Expected Reaction to FAPA – Lenders should be carefully assessing this new law and will need to step up their foreclosure litigation efforts to comply with these new requirements. Now avoiding the consequences of the statute of limitations will be harder for lenders and the consequences of mistakes and delay may cause more risk for lenders. In reaction to such changes, lenders would need to expedite some foreclosure actions which have become long, messy and complicated. While lenders attribute the delay in some actions to their desire to find an accommodation to borrowers in distress, such efforts at modification can be made more focused and efficient. Also the delay of lenders defending foreclosures should not be attributed to bankruptcy cases filed by defendants, since these toll the statute of limitations and in that respect do not prejudice the running of statute of limitations. 

c) Borrowers Expected Reaction to FAPA – Many borrowers in pending foreclosure cases are expected to confer with their foreclosure defense attorneys to find out if the “new law” applies to their case. This law is potentially complex and how it may apply may require careful analysis especially for borrowers in long, complicated and messy foreclosure actions, where often there was at least one past dismissal and a restarting of the action. The tools that defendants attorneys are expected to use to retroactively go back and challenge decisions in their client’s cases will include: 
(i) Motions to Vacate – Motions to vacate based on CPLR 5015(a)(5) which allows relief from a judgment or order based on a change in the law and states: “The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person….upon the ground of…..5. reversal, modification or vacate of a prior judgment or order upon which it is based.” 
(ii) Motions to Renew – Motions to renew based on CPLR 2221(e)which allows reconsideration of a motion based on a change in the law and states: “A motion for leave to renew…..2. ……shall demonstrate that there has been a change in the law that would change the prior determination.”
(iii) Appeals – A notice of appeal as of right under CPLR 5513 allows a borrower to appeal an order or judgment where the borrower, as appellant, asserts that the court had erred in its decision. The notice of appeal needs to be filed within 30 days of the notice of entry of the order that is being appealed and perfection of the appeal needs to be within 6 months after the notice of appeal. 

While borrowers should have their cases — especially long, messy and complicated cases — reviewed for these issues, they will need to temper their excitement about the “new law” since there are still many uncertainties and about many issues. These potentially complex issues should be raised by skilled and experienced foreclosure defense attorneys, since such issues can be lost to a foreclosure defendant if not properly raised.  

6.  Opinion: What Does All This Mean?

The FAPA is a needed correction and clarification of the law on foreclosure statute of limitations where there has been a great deal of confusion and misinterpretation. While the FAPA does not solve all the issues in this area it did address the many of the ones that were creating the greatest controversy in the courts. The intent of the legislature has been to stop lender abuse in terms of manipulation of the statute of limitations. Their goal of enforcing a more even paying field in this area is a justified goal in terms of seeking more fairness in this area. We will see over the years how this statute will be interpreted by the courts and whether it can bring clarity and even handedness to this area.

However, there does remain a problem with the foreclosure statute of limitations that the FAPA has not addressed and may be harder to tackle. The Court of Appeals decision in Engel was part of a group of four decisions in foreclosure area dealing with the statute of limitations for foreclosures. Those decisions came down to two main main conclusions: 
a) What Starts the Statute of Limitations – That the statute of limitations is triggered or starts with the lender accelerating the mortgage. Effectively this is almost always done as the start of a foreclosure action with the filing of a summons and complaint; and
b) What Ends the Statute of Limitations – In Engel the Court of Appeals decided that a voluntary dismissal is a “de-acceleration that ends the running of the statute of limitations. 

The legislature in the FAPA, was motivated to correct Engel but only dealt with the “b)” above, in the FAPA legislating that a voluntary dismissal does not end the running of the statute of limitations. The FAPA did not effectively address the other cases decided with Engel that decided “a)” above, which is what starts the statute of limitations. 

The truth is that many of the concerns of the legislature as to lender manipulation and advantages also applies to what starts the statute of limitations. When the lender decides to start its foreclosure action is also controlled by the lender, just like a voluntary dismissal is controlled by a lender. Unlike, other areas where plaintiffs are guided by an event that triggers the statute of limitations, here the plaintiff essentially creates and controls that event, which is not the default in payment or anything else but is choice of the lender as to when and how to start of the foreclosure case. Because the lender effectively controls the start of the statute of limitations in their acceleration of the mortgage, the Court of Appeals in Engel by logic and corollary held that they should have the right to “de-accelerate”. The logic was that the lender gets to “turn off” (end) what they have a right to “turn on” (start).

Therefore, it could be that the legislature needs to also look at the start of the statute of limitations and whether lenders have too much control over when they decide that it starts in a foreclosure case. 

7.  How Can the Law Office of Ronald Weiss, P.C. Help Us With Our Statute Of Limitations Issues and Otherwise Help Defend Our Foreclosure?

For over 30 years we have helped New York State defendants in foreclosure defense. Our skill, expertise and talent will give a defendant the needed edge to be effectively litigate with their lender.  The lenders have well funded and competent lawyers diligently protecting their interests. To win these cases you need the best advocates in this area. When you call us, you will know that you are calling “the right law firm.”