New York Law Journal, January 11, 2023
Diana M. Eng and Andrea M. Roberts ●
On Dec. 30, 2022, Gov. Hochul signed the Foreclosure Abuse Prevention Act (Act). The Act, which amends the Real Property Actions and Proceedings Law (RPAPL), General Obligations Law (GOL) and Civil Practice Law and Rules (CPLR), became effective immediately and applies to all actions commenced under CPLR 213(4) and in which a final Judgment of Foreclosure and Sale has not been enforced. As such, the Act applies to pending actions, not just new actions commenced after the effective date.
Highlights of the Act are summarized below, but please refer to the full text of the Act for additional information and potential further updates after the date of this publication (NY State Assembly Bill A7737B (nysenate.gov)):
- The Act adds a new subdivision 4 to RPAPL §1301, which provides that while an action is pending or after final judgment, no other action shall be commenced, including an action to foreclose, without leave of court. The failure to obtain leave of court shall be a defense in the new action and the commencement of the new action without leave of court discontinues the other action, unless, prior to the entry of final judgment in the other action, a defendant raises the failure to comply with the condition precedent or seeks dismissal of the action under CPLR 3211(a).
In addition, RPAPL §1301(4) makes clear that the subdivision shall not act as a stay or statutory prohibition for purposes of calculating the statute of limitations. Further, if it is determined that an action to foreclose under the mortgage or recover under the note is time-barred, the subdivision expressly states that any other action to foreclose or recover under the same debt is similarly time-barred. The amendment overrules New York case law holding that since a lender has a right to the election of remedies, if the court holds that enforcement of the mortgage based on a borrower’s non-payment is time-barred, res judicata does not absolutely bar the lender from electing a different remedy of pursuing a money judgment under the unpaid note.