Timing is Everything – CPLR 205(a), CPLR 205-A and FAPA
Print Article- Posted on: Sep 19 2025
Today’s article is about Nuruzzaman v. Deutsche Bank Natl. Trust Co., an action that involves numerous areas of the law about which we frequently write — mortgage foreclosure, FAPA, RPAPL 1501(4), 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.
RPAPL 1501(4)
When a mortgage appears as a lien of record on real property, but the statute of limitations has expired for the mortgagee to commence an action to foreclose the mortgage, RPAPL 1501(4) permits the mortgagor (or any other “person having an estate or interest in the real property”) to commence an action to have the encumbrance removed of record. See, e.g., MTGLQ Investors, L.P. v. Rodgers, 239 A.D.3d 968 (2nd Dep’t 2025). This statute enables the mortgagor to eliminate the lien of the mortgage without having to wait to impose a statute of limitations defense when the mortgagee commences a foreclosure action, if ever.
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.
CPLR 205(a) and 205-A
Sometimes the applicable statute of limitations expires after the dismissal of a timely commenced action. Generally, such an occurrence should not be a problem because a new action could still be commenced. 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.[2]
Nuruzzaman v. Deutsche Bank Natl. Trust Co.
All of the previously discussed principles are addressed in Nuruzzaman. In October 2010, the lender commenced a foreclosure action against the borrower to foreclose a mortgage (the “First Foreclosure Action”). In 2017, the First Action was dismissed due to the lender’s failure to comply with a scheduling order. The lender’s subsequent motion to vacate the dismissal order was denied and the related appeal was dismissed on October 13, 2020, for failure to perfect.
In June 2018, the borrower commenced an action pursuant to RPAPL 1501(4) to cancel and discharge the mortgage due to the expiration of the statute of limitations (the “Instant Action”). In February 2021, the borrower moved for summary judgment and in May 2021, the lender cross-moved for summary judgment dismissing the Complaint. In between the making o the motion and cross-motion, the lender commenced a new foreclosure action in March 2021 (the “Second Foreclosure Action”). In August 2022 the motion court in the Instant Action denied the borrower’s motion for summary judgment under RPAPL 1501(4) and granted the lender’s cross-motion.
On the borrower’s appeal, the Second Department reversed. The Court addressed statute of limitations issues in foreclosure actions, and RPAPL 1501(4), along the lines discussed herein. The Court then determined that the borrower satisfied its prima facie burden by establishing that the mortgage debt was accelerated, and the six-year statute of limitations began to run, in October 2010, when the First Foreclosure Action was commenced. Thus, the statute of limitations had expired before the time the Second Foreclosure Action was commenced in 2021. In addressing the lender’s opposition, the Court stated:
In opposition, [the lender] failed to raise a triable issue of fact as to whether the statute of limitations was tolled, otherwise inapplicable, or whether it had actually commenced a new foreclosure action within the applicable limitations period. Initially, [the lender] correctly contends that prior to the enactment of the [FAPA], the [Second Foreclosure Action] was timely commenced pursuant to CPLR 205(a), as it was commenced on March 9, 2021, within six months of October 13, 2020, the date that the 2010 action was terminated by this Court’s dismissal of [the lender]’s appeal. However, FAPA, which was enacted while this appeal was pending, replaced the savings provision of CPLR 205(a) with CPLR 205-a in actions upon instruments described in CPLR 213(4). Under CPLR 205-a(a), “[i]f an action upon an instrument described under CPLR 213(4) is timely commenced and is terminated in any manner other than a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant . . . , for failure to comply with any court scheduling orders . . . , or upon a final judgment upon the merits, 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, provided that the new action would have been timely commenced within the applicable limitations period prescribed by law at the time of the commencement of the prior action and that service upon the original defendant is completed within such six-month period.” [Emphasis in original.]
Here, it is undisputed that the Supreme Court directed dismissal of the complaint in the 2010 action based upon [the lender]’s failure to comply with the terms of a scheduling order. Accordingly, under FAPA, [the lender] is not entitled to the benefit of the savings provision of CPLR 205(a) or 205-a. [Citations, internal quotation marks and brackets omitted.]
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”, “RPAPL 1501(4)”, “CPLR 205” and/or “CPLR 205-a” into the search box.
[2] In previous BLOG articles, we compared CPLR 205(a) with 205-A. See, e.g., [here] and [here].
Tagged with: Commercial Litigation, FAPA, Mortgage Foreclosure, Real Estate Litigation, Statute of Limitations
