Almost three years after New York’s “Foreclosure Abuse Prevention Act” (FAPA) changed how the six-year time clock applicable to mortgage actions starts and stops, the state’s highest court resolved a heavily litigated dispute, concluding that FAPA is, indeed, retroactive.
On November 25, 2025, in two parallel cases, Article 13 LLC v. Ponce de Leon and Van Dyke v. U.S. Bank, the New York Court of Appeals said FAPA applies even to suits filed long before its enactment. Each of the two cases was a quiet title action (summarized in a prior post) seeking a declaratory judgment that a mortgage loan was too old to enforce because an earlier action to foreclose it had started the limitations clock, and the clock could not be reset.
The court rejected the constitutional challenges to retroactivity asserted by the mortgage holders in each case, finding that the Legislature perceived an “urgent need” to abrogate Freedom Mortgage Corp. v. Engel, the 2021 Court of Appeals decision setting forth circumstances in which an already-running limitations clock could to be reset, for later starting over, and that to meet this need, the Legislature intended FAPA to be backward-looking.
After concluding that retroactivity was intended, the Court of Appeals went on to hold that applying the portions of FAPA at issue did not violate the (1) substantive or (2) procedural due process rights asserted in both cases, nor the federal (3) property or (4) Contract Clause rights asserted in Van Dyke. Specifically:
- Substantive due process rights did not, the court held, protect a “mere expectation” of the “continuance of the existing law” and it found no other substantive due process rights were threatened.
- Procedural due process was not violated because, even though FAPA altered the way in which the limitations period could be stopped and started, the six-year period itself was unchanged.
- Similarly, the property interest in the mortgage was not impaired because “the six-year statute of limitations, not FAPA itself, . . . extinguished that interest”.
- Finally, assuming without deciding that a contract right was impaired by retroactive application of FAPA, “that impairment reasonably and appropriately furthers the significant and legitimate public purposes that motivated FAPA’s enactment.”
While the decisions provide long-awaited resolution to disputes about FAPA’s retroactivity, and about certain aspects of the act, they do not opine on certain other parts of FAPA (identified in a prior post) that were not at issue, including those that amended the state’s saving statute, its election of remedies law, its general obligation law, or that impact the principle of the finality of judgments. In footnotes, in the Article 13 LLC opinion, the court stated that certain contentions were either not raised or not addressed. Thus, litigation about FAPA and its constitutionality can be expected to continue.
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