The Foreclosure Abuse Prevention Act (“FAPA”) was passed by the Legislature to prevent banks from manipulating  the statute of limitations period to the clear detriment of New York homeowners.  No other civil plaintiffs in New York have been permitted to manipulate the statute of limitations – and other laws and procedures —  the way foreclosing banks have been able to do.  FAPA has stopped the banks’ unilateral and unfettered ability to start and stop the statute of limitations.

Recently, in Wilmington Savings Fund Society v. Martinez, (Bronx Supreme, 36246-2020E), the Hon. Naita A. Semaj dismissed the foreclosure action and granted summary judgment in my client’s favor, discharging the mortgage as time-barred.

In this case, the bank commenced a prior action in 2009.  The bank waited over three years to take my client’s default.  The lower Court denied my client’s motion to dismiss under CPLR 3215(c), and the First Department reversed in 2020.  As was par for the course, pre-FAPA, the bank refiled the action in 2020 (eleven [11] years after the first action was commenced), claiming its right to do so under the six-month savings provision under CPLR 205(a).  

FAPA made clear that in a foreclosure action, the dismissal for failure to take a defendant’s default within one year as required to CPLR 3215(c) was indeed a neglect to prosecute, which precludes a plaintiff from availing itself of the six-month savings provision.  See CPLR 205-a.

Justice Semaj found that FAPA was to apply retroactively, and that retroactive application of FAPA was constitutional, and that the plaintiff bank could not avail itself of the six-month savings provision under CPLR 205(a).    Therefore, the 2020 action was time-barred, and the mortgage had to be discharged.

The interesting thing about this case is that back in 2010, the bank promised my client modification.  My client made the three payments as required under the temporary modification agreement. Then the bank refused to do the  permanent modification because it claimed my client’s payment was late, even though it was made within the grace period allowed by the temporary agreement. The Supreme Courts have stated that such refusals to permanently modify a loan after taking the homeowner’s three payments, was not a breach of contract.  In my opinion it was.  This is another example of how the courts have interpreted the law to the banks’ benefit, and how FAPA has served to bring some justice to homeowners in foreclosure.