FAPA: Can a Bank Letter Restart the Foreclosure Clock?

Take a homeowner in Brentwood. She was served with a foreclosure complaint that demanded the entire balance. The case died on the calendar. Years later a servicer’s letter arrived announcing that the acceleration had been revoked, and a new foreclosure followed with, the lender said, a fresh six-year clock. That sequence was familiar to anyone who defends foreclosures on Long Island. The Foreclosure Abuse Prevention Act (L 2022, ch 821) took effect on December 30, 2022, and ended it.

On August 5, 2026, the Appellate Division, Second Department, applied the Act in U.S. Bank N.A. v Ahmed, 2026 NY Slip Op 04889, and affirmed the dismissal of a foreclosure commenced in January 2021 as time-barred. The lender’s de-acceleration letter, dated July 24, 2019, did not move a clock that had started in May 2014. If a letter like that one is on your kitchen table, this post is about what it can and cannot do to your dates.

What happened in Ahmed

The opinion is short; the dates carry it.

The homeowners had already won a dismissal on the RPAPL 1304 ground in September 2022. They went back for the statute of limitations ruling anyway, and the reason is in the statute. RPAPL 1301(4) provides that once an action to foreclose “is adjudicated to be barred by the applicable statute of limitations, any other action seeking to foreclose the mortgage or recover any part of the same mortgage debt shall also be barred.” A dismissal for a defective pre-foreclosure notice does not carry that sentence. A dismissal on the statute of limitations does.

The reasoning is brief. “A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law.” FAPA was such a change. Upon renewal, the homeowners established that the debt was accelerated in May 2014 when the lender commenced the prior action and elected to call due the entire amount. The second action was not commenced until January 2021. That showing was prima facie proof that the action was time-barred, and the lender “failed to raise a triable issue of fact (see CPLR 203[h]).” The court disposed of everything else in one sentence: “The plaintiff’s remaining contentions are without merit.” The opinion does not say what those contentions were.

The court did not announce a rule about which cases FAPA reaches. It applied that subdivision, on a motion to renew, to an action that had been pending since January 2021, nearly two years before the Act took effect. For a homeowner whose case is still open, that is the fact that matters.

Why the letter no longer works

Before December 30, 2022, the controlling case was Freedom Mtge. Corp. v Engel, 37 NY3d 1 (2021), decided by the Court of Appeals on February 18, 2021. Two of its rules stand. Two do not.

The first is the definition of an acceleration. An election to accelerate must be made by an “unequivocal overt act,” and “the filing of a verified complaint seeking foreclosure and containing a sworn statement that the noteholder is demanding repayment of the entire outstanding debt” is such an act. The second is its corollary. In the Vargas appeal decided with Engel, the letter warned that the lender “will accelerate” the loan if the borrower failed to cure within 32 days. The court held that the letter “did not seek immediate payment of the entire, outstanding loan, but referred to acceleration only as a future event.” Without an acceleration there is no accrual, and without an accrual there is no clock.

The rule that did not survive is the one lenders relied on. Engel held that “where the maturity of the debt has been validly accelerated by commencement of a foreclosure action, the noteholder’s voluntary withdrawal of that action revokes the election to accelerate, absent the noteholder’s contemporaneous statement to the contrary.” The court also described, without adopting or rejecting it, the Appellate Division’s rule that a revocation “can be accomplished by an ‘affirmative act’ of the noteholder within six years of the election to accelerate,” and gave as an example “an express statement in a forbearance agreement that the noteholder is revoking its prior acceleration.” That is the ancestry of the de-acceleration letter. Engel went further: it rejected the argument “that a lender should be barred from revoking acceleration if the motive of the revocation was to avoid the expiration of the statute of limitations,” because “a noteholder’s motivation for exercising a contractual right is generally irrelevant.”

The legislature answered each piece with a verb. CPLR 3217(e) now provides that a voluntary discontinuance “shall not, in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period.” CPLR 203(h) provides that no party may “unilaterally waive, postpone, cancel, toll, revive, or reset the accrual.” A letter is a unilateral act. A discontinuance is a unilateral act. Consequently, the lender’s motive, which Engel said did not matter, still does not matter, because the power itself is gone.

In my experience the motion is decided by the first complaint, not the last letter. Stop reading the letter and find that complaint. It either demanded the whole balance or it did not, and that decides the case. Everything the lender mailed after it is argument. Do not sign a modification or a forbearance until someone has counted your dates. Your signature is the one thing that can move them.

How to count your own dates

Every one of these cases is a calendar, and the homeowner’s lawyer should build it before the lender’s does. The order below is the order I use, and the order the Brentwood homeowner’s file is read in.

1. Find the first acceleration. Pull the court file for every prior action on the property, including one you do not remember being served in. A complaint that demanded the entire balance is the acceleration. A letter that described acceleration as a future event is not. When your defense rests on an acceleration made before, or by, a prior action, CPLR 213(4)(a) estops the lender “from asserting that the instrument was not validly accelerated,” unless that action was dismissed on “an expressed judicial determination, made upon a timely interposed defense,” that it was not.

2. Add six years. CPLR 213(4). If the current action was commenced after that date, the defense exists.

3. Set aside every unilateral act by the lender. The label on the letter does not matter, and a voluntary discontinuance of the old case is treated the same way.

4. Read what you signed. General Obligations Law § 17-105(1) is the exception the statute writes in the borrower’s hand: a promise to pay the mortgage debt, or a waiver of the expired time, “by the express terms of a writing signed by the party to be charged,” makes the time run from the date of that writing. A loan modification or forbearance agreement can be that writing, which is the subject of our earlier warning about signing a loan modification when the statute of limitations may have run. A payment on the loan, and a stipulation made in an action, sit outside the section; bring both and let the lawyer read them.

5. Check how the old case ended. CPLR 205-a(a) gives a lender six months to re-file after a timely action terminates, once, and only to the original plaintiff, and not where the prior action ended “by default due to nonappearance for conference or at a calendar call,” which is how the 2014 action in Ahmed ended. The court did not reach the window; the second action came two years after the dismissal, so it could not have helped.

6. If a court already denied the defense, look at renewal. CPLR 2221(e)(2) permits a motion for leave to renew that demonstrates “a change in the law that would change the prior determination.” Ahmed was decided on exactly that motion.

If you would rather hand the file to someone who does this every week, send it to us and we will build the calendar with you.

What a time-barred foreclosure means

A dismissal on the statute of limitations ends more than the case in front of you. The sentence in RPAPL 1301(4) quoted above attaches the bar to the mortgage and the debt, not to the case number: no further action to foreclose that mortgage or to recover any part of that debt may be brought.

The dismissal does not, by itself, remove the mortgage from the county record. That is a second action, and RPAPL 1501(4) gives it to you: once the period to foreclose has expired, any person with an estate or interest in the property may sue “to secure the cancellation and discharge of record of such encumbrance,” whether or not the debt was paid, unless the lender is in possession of the property.

For a Nassau or Suffolk family in and out of foreclosure since the last decade, the two actions together are the difference between a house with a cloud on it and a house.

What to bring to the first call

The first document I ask for is the complaint from the first foreclosure, not the letter from the last servicer. Bring these:

1. Every summons and complaint ever filed on the mortgage, with the index numbers, and the order or stipulation that ended each case.
2. Every letter from the lender or servicer about acceleration, de-acceleration, reinstatement, or the loan being “no longer in foreclosure,” with the envelopes if you kept them.
3. Anything you signed after the first default: a modification, a forbearance, a repayment plan, or a stipulation in the old action.
4. Your payment history since the first complaint.
5. If a court denied a statute of limitations defense before December 30, 2022, that order and the motion papers.

Sources

• U.S. Bank N.A. v Ahmed, 2026 NY Slip Op 04889 (2d Dept Aug. 5, 2026): nycourts.gov
• Freedom Mtge. Corp. v Engel, 37 NY3d 1, 2021 NY Slip Op 01090 (Feb. 18, 2021): nycourts.gov
• CPLR 203: nysenate.gov
• CPLR 205-a: nysenate.gov
• CPLR 213: nysenate.gov
• CPLR 2221: nysenate.gov
• CPLR 3217: nysenate.gov
• RPAPL 1301: nysenate.gov
• RPAPL 1501: nysenate.gov
• General Obligations Law § 17-105: nysenate.gov

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The Brentwood homeowner’s case is not in the letter on her table. It is in the first complaint in her file, the one that demanded the whole balance, and in anything she signed after it. If the count comes out in her favor, the foreclosure defense does not end at the dismissal; the action that clears her title comes next.

If a lender’s letter says your acceleration was revoked and a new foreclosure has been filed or threatened on your Long Island home, call (516) 750-0595 or request a free review of your timeline. Bring the complaint from the first case, not the letter from the last servicer.