The following papers were read and considered in the aforementioned motion submitted on May 12, 2023: NYSCEF Doc. Nos. 212 to 254, inclusive. DECISION AND ORDER Background Defendant ABN Home Investments LLC’s moves before this Court to renew, reargue and reconsider the Court’s prior order vacating dismissal of this foreclosure action, and for an order dismissing this foreclosure action by reason of the expiration of the statute of limitations. (Motion Seq. No. 007). This motion is hereby granted for the reasons set forth below. As the parties note, due to changes to appellate case law, this Court has issued two prior decisions regarding whether the statute of limitations has expired in this matter. Specifically, on February 13, 2020, this Court dismissed the action based on expiration of the statute of limitations on Defendant’s motion to renew and reconsider based upon the Second Department’s decision in Freedom Mortgage Corp. v. Engel, 163 A.D.3d 631 (2018). (NYSCEF Doc. No. 120), which found that a discontinuance in a foreclosure action did not in and of itself deaccelerate a mortgage loan. However, on January 28, 2022, this Court granted Plaintiff’s motion to renew and vacated the February 13, 2020 decision, based upon the Court of Appeals reversal of this Second Department decision in Engel. (NYSCEF Doc. No. 180). (See Freedom Mortgage Corp. v. Engel, 37 N.Y.3d 1 (2021)). The issue of the statute of limitations is again raised by this motion. Specifically, the Court has been asked to decide: (1) whether the 2015 discontinuance of the 2009 foreclosure action previously filed regarding the mortgage at issue in this matter deaccelerated the loan, such that the statute of limitations did not expire prior to the filing of the 2019 foreclosure action; or (2) whether the 2015 discontinuance did not de-accelerate the loan, such that the statute of limitations has expired, since the new action was filed more than six years after the 2009 acceleration. The legal basis for Defendant’s current motion to renew and reconsider is the recently enacted “Foreclosure Abuse Prevention Act,” (hereinafter “FAPA”), signed into law on December 30, 2022, which speaks to this issue, as well as the recent cases construing FAPA. CPLR 2221(e) states in pertinent part that a motion for leave to renew shall be identified as such and shall demonstrate that there has been a change in the law that would change the prior determination. Defendant has so identified this motion and relies on the newly enacted FAPA. Plaintiff objects, arguing, among other issues, that Defendant, who is the current title owner but was not an owner at the time of the original foreclosure action and is not a borrower, has no standing to plead the statute of limitations as a defense. Plaintiff further argues that FAPA cannot be retroactively applied to this case. Plaintiff also argues that FAPA is unconstitutional as Defendant would have it applied here. On the issue of standing, the Court determined this precise issue in its February 13, 2020 decision (NYSCEF Doc No. 120), and now reaffirms that Defendant as title owner has standing to raise the statute of limitations as a defense. As the Court found in that decision: Parties who are presently in title to the real property are necessary and indispensable parties to a foreclosure proceeding (RPAPL §1311 (1)). Plaintiff takes the position that, as a stranger to the note and mortgage, ABN has no standing to raise Statute of Limitations defenses, which, if successful, would defeat foreclosure. ABN, as title owner, clearly has standing to do so. (Wellington v. Financial Freedom Acquisition, LLC. ex reL Structured Asset Securities Corp. Eeverse Mortgage Loan Trust 1999-RMI, 132 AD 3d 506; see also, Silverberg v. Bank of New York Mellon, 165 AD 3d 1193 (2d Dept.))…. Note 2. The Court notes that the Wellington case and the Silverberg case construed RPAPL§l501 (Determination of a Claim to Real Property) and Real Property Law §329 (Action to have Certain Instruments Cancelled), respectively, but the principles stated therein apply equally here….[T]he result, as plaintiff would have it, is absurd — ABN is a necessary and indispensable party to this action, has a vested ownership interest in the property, but is barred from raising legitimate defenses to this foreclosure action. There is no question that ABN is not obligated under the note, but enforcement of the security, evidenced by this mortgage to which its fee interest is subject, jeopardizes his rights in the subject property. Co-defendant Haq has little incentive to protect that interest, having conveyed same to ABN in 2012. In its papers on the instant motion, Plaintiff also cites to BHMPW Funding, LLC v. Lloyd-Lewis, 194 A.D.3d 780 (2d Dept. 2021), in arguing that a statute of limitations defense cannot be raised by an owner who is not a borrower. First, as Plaintiff notes, the issue has been determined in this action. Thus, it is the law of the case, in the absence of a motion to renew or reconsider. Although Plaintiff has not cross-moved for such relief, the Court also will reach the merits of this issue as it is raised in opposition to Defendant’s motion. (See People v. Evans, 94 N.Y.2d 499, 503 (2000)(law of the case is a judicially crafted policy that expresses the practice of courts generally to refuse to reopen what has been decided, and is not a limit to their power)). The BHMPW Funding case does not change the Court’s earlier assessment of this issue. The Court finds that Defendant properly distinguishes the issue raised here from that raised in BHMPW Funding. BHMPW Funding concluded that the statute of limitations defense could not be asserted by a “non-borrower” regarding the recovery of interest on payments that were due and owing. As this Court reads it, BHMPW Funding does not determine the broader issue raised here: whether the statute of limitations can be raised by non-borrower owner as a defense to the foreclosure action, itself, where the foreclosure would impact its rights to the property that is the subject of the foreclosure. While Defendant also argues that FAPA prohibits Plaintiff from raising the issue of standing, the Court declines to decide this issue. It does, though, agree that its conclusion on the issue of standing to raise the statute of limitations is consistent with the legislative intent of FAPA, which unquestionably included preventing “unilateral” usage the statute of limitations by lenders, in order to protect homeowners. (HSBC Bank USA as Tr. of Ace Sec. Corp. Home Equity Loan Tr. v. IPA Asset Mgmt., LLC, No. 208848/2022, 2023 WL 3472308, at *1 (Suffolk Sup. Ct. May 16, 2023)). Having determined that Defendant may assert the statute of limitations as a defense to this action, the Court next must decide whether the statute of limitations has expired in this case based on FAPA. Several sections of FAPA are relevant here: Paragraph (a) of CPL §213(4) provides in part that “in any action on an instrument described under this subdivision, if the statute of limitations is raised as a defense, and if that defense is based on a claim that the instrument at issue was accelerated prior to, or by way of commencement of a prior action, a plaintiff shall be estopped from asserting that the instrument was not validly accelerated, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated.” FAPA also amended CPLR §3217 to add paragraph (e) that provides in part: “in any action on an instrument described under CPLR §213(4), the voluntary discontinuance of such action, whether on motion, order, stipulation or by notice, shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute.” Finally, Section 10 addresses FAPA’s application, and states in part that the act “shall take effect immediately and shall apply to all actions commenced on an instrument described under subdivision four of section two hundred thirteen of the civil practice law and rules in which a final judgment of foreclosure and sale has not been enforced.” (See 2022 Sess. Law News of NY Ch. 821 §10). In the Court’s view, the issue of the application of FAPA to cases such as this one has been determined by the Second Department case GMAT Legal Title Tr. 2014-1 v. Kator, 213 A.D.3d 915, 917, 184 N.Y.S.3d 805, 808 (2023), which found that FAPA “nullified” the conclusion of the Engel case, as well as by Bank of New York Mellon v. Stewart, No. 2019-13971, 2023 WL 3328664, at *2 (N.Y. App. Div. May 10, 2023). (See also HSBC Bank USA as Tr. of Ace Sec. Corp. Home Equity Loan Tr. v. IPA Asset Mgmt., LLC, No. 208848/2022, 2023 WL 3472308, at *1 (Suffolk Sup. Ct. May 16, 2023)). Plaintiff attempts to distinguish the GMAT case by highlighting an important point: that the Court in GMAT also noted that the sixyear statute of limitation period had passed prior to the discontinuance. As the Court reads this opinion, however, the Second Department first concluded that the matter was time barred based on FAPA’s provisions. Moreover, the decision in Bank of New York Mellon v. Stewart, cited above, also retroactively applied FAPA’s provisions regarding acceleration and the impact of discontinuance to a foreclosure action first filed in 2007, discontinued in 2012, and re-filed in 2014. It is clear from the language of FAPA, that CPLR §3217 applies to the current action. By its express terms, Section 10 evidences an intent that the act apply retroactively, “to all actions,” including to cases where a judgment has issued but not yet been enforced, without any further limitation or restriction. To this Court, this result is clear from this language, and from FAPA’s intent, that it be used by Courts to interpret the legal significance of prior discontinuances on the statute of limitations. In this case then, by the application of FAPA’s provisions, it is clear then that the discontinuance of the first foreclosure action in this case did not de-accelerate the loan under FAPA. Here the intent of the Legislature could only be given effect through retroactive application. In enacting these portions of the FAPA act, the Legislature intended to: (1) quickly clarify application of the statute of limitations in foreclosure actions, which in the Legislature’s view had been recently misapplied by the Court of Appeals; and (2) have the act applied to “all actions” in order to stop lenders from actions that “manipulate the statute of limitations to their advantage.” (2021 NY Senate Bill 5473 (committee report); See HSBC Bank USA as Tr. of Ace Sec. Corp. Home Equity Loan Tr. v. IPA Asset Mgmt., LLC, No. 208848/2022, 2023 WL 3472308, at *1 (Suffolk County, May 16, 2023)). Plaintiff raises several constitutional arguments to oppose retroactive application of FAPA to this matter. While retroactive legislation may be frowned upon, in the context of remedial legislation, retroactivity may be precisely what is intended. Such application is valid, unless it reaches so far into the past or so unfairly as to constitute a deprivation of property without due process. (see Matter of Varrington Corp. v. City of N.Y. Dept. of Fin., 85 NY2d 28, 32 (1995)). The Court rejects plaintiff’s constitutional arguments, based on the Second Department’s opinion in GMAT, as well as the Supreme Court’s opinion in Deutsche Bank National Trust Company v. Dagrin, 2023 WL 2941421 (Queens County, May 01, 2023)). In this later case, the Supreme Court found that retroactive application fo FAPA was not constitutionally infirm, including finding that FAPA met the rational basis test, and that plaintiff there did not overcome the strong presumption of constitutionality of statutes. Deutsche Bank National Trust Company, supra at *4. This Court similarly concludes that FAPA is constitutional in this context. These arguments fail for another reason as well. The 2015 discontinuance here occurred years prior to the 2021 Engel decision, a fact which the Court finds undermines Plaintiff’s argument that retroactive application of FAPA would constitute a constitutional violation by “reaching into the past so unfairly as to constitute a deprivation of property” in this case. Here, there would have been no reason for Plaintiff at the time of the discontinuance or for years thereafter to be assured that the discontinuance acted as a de-acceleration. (See HSBC Bank USA as Tr. of Ace Sec. Corp. Home Equity Loan Tr. v. IPA Asset Mgmt., LLC, No. 208848/2022, 2023 WL 3472308, at *1 (N.Y. Sup. Ct. May 16, 2023)). Prior to the 2021 Engel decision by the Court of Appeals, Second Department cases had held time and time again that a clear and affirmative act was needed to revoke acceleration and reset the statute. (See, e.g. U.S. Bank Trust, N.A. v. Aorta, 167 A.D.3d 807, 89 N.Y.S.3d 717 (2nd Dept. 2018); see also Clayton Nat., Inc. v. Guldi, 307 A.D.2d 982, 763 N.Y.S.2d 493 (2003)). Therefore, the statute, as applied, cannot fairly be said to have taken any vested rights from the Plaintiff. Furthermore, “it is well settled that the acts of the Legislature are entitled to a strong presumption of constitutionality.” (HSBC Bank USA as Tr. of Ace Sec. Corp. Home Equity Loan Tr. v. IPA Asset Mgmt., LLC, No. 208848/2022, 2023 WL 3472308, at *1 (Sufolk County, May 16, 2023)). Plaintiff has not overcome this presumption in this case. Accordingly, it is hereby ORDERED, that Defendant’s motion to renew is GRANTED; and it is further ORDERED that, upon renewal, the Decision and Order of this Court of January 28, 2022 is hereby VACATED; and it is further ORDERED that the complaint filed under Index No. 135486/2017 is hereby DISMISSED, and the subject mortgage shall be DISCHARGED. Defendant to settle the Order, which order shall include recalling the Order of Reference previously entered in this matter. Dated: June 8, 2023
