It’s Unanimous – The Fourth Department Joins the Other Departments and Confirms the Retroactive Application of FAPA
Print Article- Posted on: Nov 28 2025
oday’s article is about MCLP Asset Co. v. Zaveri, an action that involves numerous areas of the law about which we frequently write — mortgage foreclosure, FAPA, CPLR 205(a), CPLR 205-A and statutes of limitation.[1]
Statute of Limitations in Foreclosure Actions
By way of brief background, and as previously written in this BLOG, an action to foreclose a mortgage is governed by a six-year statute of limitations. CPLR 213(4);see also Medina v. Bank of New York Mellon Trust Co., N.A., 240 A.D.3d 879 (2nd Dep’t 2025); Fed. Nat. Mort. Assoc. v. Schmitt, 172 A.D.3d 1324, 1325 (2nd Dep’t 2019). When a mortgage is payable in installments, “separate causes of action accrue for each installment that is not paid and the statute of limitations begins to run on the date each installment becomes due.” HSBC Bank USA, N.A. v. Gold, 171 A.D.3d 1029, 1030 (2nd Dep’t 2019). Most mortgages, however, provide that a mortgagee may accelerate the entire debt in the event of, inter alia, a payment default by a mortgagor. Once the mortgagee’s election to accelerate is properly made, “the borrower’s right and obligation to make monthly installments ceased and all sums become immediately due and payable, and the six-year Statute of Limitations begins to run on the entire mortgage debt.” EMC Mortgage Corp. v. Patella, 279 A.D.2d 604, 605 (2nd Dep’t 2001) citations and internal quotation marks and brackets omitted); see also Medina, 240 A.D.3d at 881; HSBC, 171 A.D.3d at 1030.
FAPA
The Foreclosure Abuse Prevention Act (“FAPA”), which went into effect in December of 2022, “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). Thus, inter alia, FAPA’s provisions were designed to prevent lenders from circumventing statute of limitations problems in residential mortgage foreclosure actions by the simple expedient of accelerating and deaccelerating loans to restart the running of statutes of limitations. The First, Second and Third Departments have all held that FAPA is to be applied retroactively. See, e.g., Genovese v. Nationstar Mortgage LLC, 223 A.D.3d 37 (1st Dep’t 2023),[2] 97 Lyman Avenue, LLC v. MTGLQ Investors, L.P., 233 A.D.3d 1038 (2nd Dep’t 2024); U.S. Bank N.A. v. Lynch, 233 A.D.3d 113 (3rd Dep’t 2024)[3]
CPLR 205(a) and 205-A[4]
Sometimes the applicable statute of limitations expires after the dismissal of a timely commenced action. Such an occurrence is not be a problem if a new action can be commenced before the limitations period expires. However, issues may arise when an otherwise timely action is dismissed subsequent to the expiration of the limitations period. Depending on the nature of the dismissal, even in the latter scenario, a plaintiff may be permitted to commence a new action notwithstanding the expiration of the applicable statute of limitations by virtue of the savings provisions of CPLR 205(a). CPLR 205(a) is a “remedial” statute that “has existed in New York law since at least 1788” and can [t]race[] its roots to seventeenth century England.” Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 199 (2nd Dep’t 2017), appeal dismissed, 29 N.Y.3d 1023 (2017). The purpose of CPLR 205(a) is to “ameliorate the potentially harsh effect of the Statute of Limitations in certain cases in which at least one of the fundamental purposes of the Statute of Limitations has in fact been served, and the defendant has been given timely notice of the claim being asserted by or on behalf of the injured party.” George v. Mt. Sinai Hospital, 47 N.Y.2d 170, 177 (1979). Thus, the statute provides “a second opportunity to the claimant who has failed the first time around because of some error pertaining neither to the claimant’s willingness to prosecute in a timely fashion nor to the merits of the underlying claim.” George, 47 N.Y.2d at 178-79.
To address the previously discussed gamesmanship employed by lenders to artificially extend applicable statutes of limitation, FAPA added CPLR 205-A, which limits the ability of lenders to manipulate the statute of limitations in mortgage foreclosure actions.
MCLP Asset Co., Inc. v. Zaveri
All the previously discussed principles are addressed in MCLP. In MCLP, the plaintiff lender’s predecessor in interest commenced an action in 2012 to foreclose a mortgage that was “deemed abandoned” and dismissed in 2017 pursuant to CPLR 3404. A subsequent appeal from the denial of the predecessor lender’s motion to restore was dismissed as abandoned. Another of plaintiff’s predecessors in interest commenced the subject foreclosure action in 2019. The motion court granted the defendant’s motion to dismiss the complaint on statute of limitations grounds. On the lender’s appeal, the Fourth Department reversed “concluding that the 2019 action was not time-barred inasmuch as CPLR 205 (a) applied to extend the statute of limitations.” Shortly after the appeal was decided, however, FAPA was enacted and, inter alia, amended CPLR 205 to provide that “[t]his section shall not apply to any proceeding governed by CPLR 205-a. (Ellipses and brackets omitted.)
After the complaint was reinstated, the predecessor assigned the mortgage to the plaintiff lender, who moved for summary judgment. The borrower cross-moved for leave to amend the answer to include a statute of limitations defense based on FAPA’s amendment of CPLR 205 and its enactment of CPLR 205-a. The motion court granted the borrower’s cross-motion. Thereafter, relying on decisions from the First and Second Departments, the motion court concluded that “FAPA was intended to be applied retroactively and, pursuant to CPLR 3212(b), searched the record and granted summary judgment to the borrower.
On appeal the lender argued that “FAPA, particularly CPLR 205-a, [should not be] applie[d] retroactively.” As to retroactivity, the Court stated:
Retroactive operation is not favored by the courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it. However, remedial legislation should be given retroactive effect in order to effectuate its beneficial purpose. Factors to consider in determining whether a statute should be applied retroactively include, whether the legislature has made a specific pronouncement about retroactive effect or conveyed a sense of urgency; whether the statute was designed to rewrite an unintended judicial interpretation; and whether the enactment itself reaffirms a legislative judgment about what the law in question should be. [Citations, ellipses and brackets omitted.]
Based on the legislative history, the Fourth Department determined that FAPA was intended to apply retroactively. Specifically with respect to CPLR 205-a, the Court stated:
we note that, in drafting that provision, which was modeled on CPLR 205 (a), the legislature did not include the CPLR 205 (a) language “requiring that the court 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, which had occasioned erroneous judicial interpretations that the court’s recitation of the specific conduct is a condition precedent to the bar against an extension of the statute of limitations for a neglect based dismissal. Indeed the legislative history makes clear that in omitting the aforementioned language, the legislature intended to correct those “erroneous judicial interpretations”. In enacting CPLR 205-a, the legislature sought to, inter alia, bring greater clarity in mortgage foreclosure actions concerning what constitutes a neglect to prosecute and thereby promote “the objectives of ‘finality, certainty and predictability,’ to the benefit of both plaintiffs and defendants”. We thus conclude that the legislature intended for CPLR 205-a, like the rest of FAPA, to apply retroactively. [Citations, ellipses and brackets omitted.]
In addition, the Court found the new CPLR 205-a did not operate to extend the statute of limitations and, therefore, the motion court properly granted summary judgment to the borrower. Specifically, the Court noted that CPLR 205-a does not apply to successors in interest or assignees unless it is pleaded and proved that they are “acting on behalf of the original plaintiff” or where the first action is dismissed for any form of neglect.
The Court also rejected, on the merits, the lender’s argument that the retroactive application of FAPA is violative of its due process rights.[5]
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 dozens of articles addressing numerous 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. In particular, as relates to today’s article, type “FAPA”, “statute of limitations”, “CPLR 205” and/or “CPLR 205-a” into the search box.
[2] Genovese was also discussed in this BLOG’s article: “The Appellate Division, First Department, Reiterates in Two Cases That The Foreclosure Abuse Prevention Act (“FAPA”) is to Have Retroactive Application and Otherwise Passes Constitutional Muster”.
[3] Lynch was also discussed in this BLOG’s article: “The Appellate Division, Third Department, Holds that Retroactive Application of the Foreclosure Abuse Prevention Act (“FAPA”) Does Not Violate Due Process”.
[4] In previous BLOG articles, we compared CPLR 205(a) with 205-A. See, e.g., [here] and [here].
[5] On November 25, 2025, the New York Court of Appeals decided two cases: Article 13 LLC v. Ponce De Leon Fed. Bank and Van Dyke v. U.S. Bank, N. A., in which the Court determined that certain provisions of FAPA operate retroactively and that such retroactive application violates neither the lender’s substantive nor procedural due process rights as applied to the subject cases. We will address these cases in next week’s BLOG article.
Tagged with: Commercial Litigation, FAPA, Mortgage Foreclosure, Mortgage Foreclosure Litigation, Real Estate Litigation
