Retracing our steps back to Freedom Mortg. Corp. v. Engel, 37 N.Y.3d 1, 169 N.E.3d 912, reargument denied, 37 N.Y.3d 926, 169 N.E.3d 1229 (2021), the Court of Appeals held that the lender’s voluntary discontinuance of its foreclosure action constituted an “affirmative act” which, absent a revocation procedure set forth in the loan documents, was required to, and did, deaccelerate the loan.As a result, the statute of limitations requiring the lender to commence a mortgage foreclosure action within six years of its acceleration of the loan was tolled.

On Dec. 30, 2022, the New York legislature enacted FAPA in response to Engel.Both the assembly member who sponsored FAPA and the State Senate version of the bill refer to FAPA as “remedial legislation” intended to address “an ongoing problem with abuses of the judicial foreclosure process; that the problem has been exacerbated by court decisions which, contrary to the intent of the Legislature, have given mortgage lenders and loan servicers opportunities to avoid strict compliance with remedial statutes and manipulate statutes of limitation to their advantage.” (N.Y. State Senate Bill 2021-S5473D).