FAPA and Statutes of Limitation Revisited
Print Article- Posted on: Apr 18 2025
Today’s article revisits statute of limitations issues and FAPA[1] in residential mortgage foreclosure actions[2]. Briefly stated, a mortgage foreclosure action is governed by a six-year statute of limitations. CPLR 213(4); see also Anglestone Real Estate Venture Partners Corp. v. Bank of New York Melon, 221 A.D.3d 943, 946 (2nd Dep’t 2023). When mortgage payments are payable in installments, the six-year period runs from each missed payment, but, upon acceleration, the statute of limitations begins to run anew on the entire accelerated debt. Anglestone, 221 A.D.3d at 946; see also Mills v. Deutsche Bank Nat. Trust, 235 A.D.3d 740 (2nd Dep’t 2025). Acceleration can be accomplished by making a demand for payment of the full amount due under the subject loan due to a default or by the commencement of a foreclosure action in which the lender demands payment of all sums due under the mortgage. Caprotti v. Deutsche Bank National Trust Co., 220 A.D.3d 1126, 1127 (2nd Dep’t 2023); GMAT Legal Title Trust 2014-1 v. Kator, 213 A.D.3d 915, 916 (2nd Dep’t 2023).
The Foreclosure Abuse Prevention Act (“FAPA”) “represents the Legislature’s response to litigation strategies and certain legal principles that distorted the operation of the statute of limitations in foreclosure actions.” Genovese v. Nationstar Mortgage LLC, 223 A.D.3d 37, 41 (1st Dep’t 2023) (citation omitted).[3] Among other statutory provisions, FAPA created CPLR 213(4)(a), which provides that “[i]n any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument 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.” See also Kator, 213 A.D.3d at 916-17.
Today’s BLOG relates to Deutsche Bank National Trust Co. v. DiGiorgio, a case decided by the Appellate Division, Second Department, on April 16, 2025. The lender in DiGiorgio, at this time One West, commenced an action in 2009 to foreclose a mortgage (the “First Action”). The First Action was voluntarily discontinued in 2016 by court order. In 2018, a new action was commenced by the lender, this time plaintiff, Deutsche Bank, to foreclose the same mortgage and in which the lender claimed new defaults (the “Present Action”). The lender moved for summary judgment and the borrower cross-moved for summary judgment dismissing the complaint on statute of limitations grounds. The lender appeals from the denial of the lender’s motion and the granting of the borrower’s motion.
After discussing the law on statutes of limitation in foreclosure actions, the Court determined that the lender’s claims were time barred because the borrower demonstrated that the “six-year statute of limitations began to run in October 2009 when [the lender] commenced the [First Action] and elected in the complaint to call due the entire amount secured by the mortgage” (citation omitted) and that the Present Action was commenced more than six years after the First Action.
Relying on CPLR 213(4)(a) and Kator, supra, the Court rejected the lender’s argument that the loan was not accelerated because One West lacked standing to commence the First Action. The Court found that the lender was estopped from making its argument that there was no prior acceleration because the First Action “was not dismissed based upon an expressed judicial determination that the instrument was not validly accelerated”.
The Court also rejected the lender’s argument that One West’s voluntary discontinuance of the First Action “served to revoke the acceleration and reset the statute of limitations.” The Court noted that “FAPA amended CPLR 3217, governing the voluntary discontinuance of an action, by adding a new paragraph (e), which provides that ‘in any action on an instrument described under [CPLR 213(4)], 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, unless expressly prescribed by statute.’” (Citation, internal quotation marks and brackets omitted, hyperlink added.)
The Court further noted that “even prior to the enactment of FAPA, the discontinuance of the 2009 action would not have been effective to reset the statute of limitations because the discontinuance did not occur during the six-year limitations period.” (Citation omitted.)[4]
Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] This BLOG has written numerous of articles addressing FAPA and statutes of limitation in residential mortgage foreclosure actions. To find such articles, please see the BLOG tile on our website and type “statute of limitations mortgage foreclosure”, “FAPA” or any other issue related to mortgage foreclosure into the “search” box. For a concise explanation of the inter relationship between the statute of limitations, acceleration and the Foreclosure Abuse Prevention Act (“FAPA”) see, e.g., [here].
[2] This BLOG has written dozens of articles addressing all aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.
[3] This Blog wrote about Genovese [here].
[4] The Court also rejected the lender’s challenge to the constitutionality of the retroactive application of FAPA. This BLOG addressed the retroactive application of FAPA on numerous occasions. See, e.g., [here], [here], and [here].
