FAPA’s CPLR 205-a Retroactively Bars Recommencement After Foreclosure Dismissal for “Any Form of Neglect”

1. Introduction

Deutsche Bank National Trust Company, as Trustee v Bessette (2026 NY Slip Op 01259 [3d Dept Mar. 5, 2026]) addresses whether a mortgage foreclosure plaintiff may rely on a savings statute to recommence a time-barred foreclosure action after a prior foreclosure was dismissed “with prejudice” for failure to comply with court-imposed deadlines.

The underlying loan originated in February 2007. After an alleged February 2010 default, the lender’s assignee (plaintiff Deutsche Bank National Trust Company, as Trustee) commenced a foreclosure action in June 2010 and elected to accelerate the mortgage debt in that complaint. That first foreclosure action was ultimately dismissed in April 2018 due to plaintiff’s failure to timely move for a judgment of foreclosure and sale despite multiple deadlines and a conditional dismissal order. Plaintiff later brought a new foreclosure action in February 2023. Defendant Lola Bessette (also known as Lola Kubik) asserted that the new action was untimely.

The central issues on appeal were:

  • Which savings statute governs recommenced mortgage foreclosure actions after the enactment of the Foreclosure Abuse Prevention Act (FAPA): CPLR 205 (a) or CPLR 205-a?
  • Does FAPA’s mortgage-specific savings provision (CPLR 205-a) apply retroactively?
  • If CPLR 205-a applies, does a prior foreclosure dismissal for missing court-imposed motion deadlines constitute a termination for “any form of neglect,” thereby barring recommencement?

2. Summary of the Opinion

The Third Department affirmed dismissal of the 2023 foreclosure action as time-barred, though for different reasons than Supreme Court.

Key holdings:

  • FAPA shifted mortgage foreclosure recommencement from CPLR 205 (a) to CPLR 205-a (via CPLR 205 [c]).
  • CPLR 205-a applies retroactively to foreclosure matters where a final judgment of foreclosure and sale has not been enforced, consistent with the court’s prior decision in Bank of N.Y. Mellon v Richards.
  • Because plaintiff accelerated the debt in 2010 and did not show a valid revocation of acceleration, the six-year statute of limitations expired in 2016.
  • The 2010 action was dismissed due to plaintiff’s failure to meet court-imposed deadlines—constituting termination for “neglect” under CPLR 205-a—so the six-month grace period was unavailable.
  • Accordingly, the 2023 action—filed years after 2016—was untimely.

3. Analysis

3.1. Precedents Cited

(a) Limitations period and acceleration

  • Van Dyke v U.S. Bank, Natl. Assn. (___ NY3d ___, 2025 NY Slip Op 06537): Cited for the proposition that a residential mortgage foreclosure is governed by the six-year contract limitations period (CPLR 213[4]), that installments accrue separately unless acceleration occurs, and that upon acceleration the six-year period runs on the entire debt from the acceleration date. The Third Department relies on Van Dyke as the modern Court of Appeals anchor for the acceleration/limitations framework.
  • Article 13 LLC v Ponce De Leon Fed. Bank (___ NY3d ___, 2025 NY Slip Op 06536): Reinforces the same doctrinal architecture: separate accrual for installments versus single accrual upon acceleration. The court cites it to situate its analysis within recent Court of Appeals guidance on how foreclosure claims accrue.
  • U.S. Bank N.A. v Craft (240 AD3d 1140 [3d Dept 2025]): Cited as Third Department authority consistent with the six-year limitations rule for foreclosure actions.

(b) FAPA, retroactivity, and the new recommencement regime

  • Bank of N.Y. Mellon v Richards (233 AD3d 1250 [3d Dept 2024]): This is the opinion’s key intra-department precedent. The court treats Richards as controlling on two points:
    1. Retroactivity: CPLR 205-a applies retroactively in specified foreclosure contexts (referencing FAPA’s stated retroactive reach).
    2. Neglect: the meaning of “neglect” under CPLR 205-a is broad—capturing failures such as noncompliance with court deadlines.
    In Bessette, the court explicitly declines to depart from Richards, signaling strong precedential weight within the Third Department.
  • MCLP Asset Co., Inc. v Zaveri (243 AD3d 1209 [4th Dept 2025]), Deutsche Bank Natl. Trust Co. v Feurtado (241 AD3d 499 [2d Dept 2025]), Deutsche Bank Natl. Trust Co. v Vista Holding, LLC (239 AD3d 830 [2d Dept 2025]): These decisions are cited to reject constitutional challenges to FAPA’s retroactivity. Their inclusion shows an emerging interdepartmental consensus that retroactive application of FAPA provisions—at least in the context presented—survives due process and related constitutional attacks.
  • Van Dyke v U.S. Bank, Natl. Assn. (___ NY3d ___, 2025 NY Slip Op 06537, *6): Cited again—this time for the proposition that constitutional objections to FAPA’s retroactive features have not carried the day at the highest level, supporting the Third Department’s refusal to entertain plaintiff’s constitutional challenge.

(c) Post-FAPA “neglect” and denial of the savings period

  • U.S. Bank Trust N.A. v Pluchino (244 AD3d 1162 [2d Dept 2025]) and HSBC Bank, USA, N.A., v Vesely (244 AD3d 51 [3d Dept 2025]): Cited to confirm that where the prior action was terminated for neglect within the meaning of CPLR 205-a, the six-month grace period does not apply and a later foreclosure action remains time-barred.

3.2. Legal Reasoning

(a) The limitations clock: acceleration in 2010, expiration in 2016

The court applies the standard six-year limitations period under CPLR 213(4). Because plaintiff’s 2010 complaint “elected to accelerate the debt,” the limitations period for the entire mortgage debt began to run in 2010. Absent proof of a valid revocation of acceleration, the limitations period therefore expired in 2016.

Notably, the court treats “no evidence of valid revocation” as dispositive. This reflects the post-acceleration doctrine: once accelerated, the lender must establish a legally effective de-acceleration if it wants to avoid the single six-year clock expiring on the entire debt.

(b) The gatekeeping question: which savings statute applies after FAPA?

Plaintiff attempted to use CPLR 205(a) (the general six-month savings statute) by arguing, among other things, that the prior dismissal order did not satisfy CPLR 205(a)’s requirement that the court “set forth on the record” the specific conduct showing a “general pattern of delay” (when the bar is “neglect to prosecute”).

The Third Department rejects that framing as legally beside the point after FAPA:

  • FAPA moved mortgage foreclosure actions to the mortgage-specific rule: CPLR 205-a (see CPLR 205[c]).
  • CPLR 205-a’s exclusion is broader: the grace period is unavailable if the prior action terminated for “any form of neglect”, even a one-time event.

In short, plaintiff’s attempt to litigate within the narrower “neglect to prosecute” framework of CPLR 205(a) fails because foreclosure recommencement now lives under CPLR 205-a.

(c) Retroactivity and constitutional objections

Plaintiff argued CPLR 205-a should not be applied retroactively. The Third Department holds that argument is foreclosed by Bank of N.Y. Mellon v Richards, which relied on FAPA’s retroactivity directive (L 2022, ch 821, § 10). The court also rejects plaintiff’s constitutional challenge, citing multiple Appellate Division cases and Van Dyke v U.S. Bank, Natl. Assn..

Practically, the court treats retroactivity as settled—at least for cases fitting the statutory retroactivity clause— thereby converting what might have been a threshold defense for lenders into a largely uphill battle.

(d) “Neglect” under CPLR 205-a: missing court deadlines is enough

The prior foreclosure was dismissed after plaintiff repeatedly failed to file a motion for a judgment of foreclosure and sale despite:

  • a restoration order warning of dismissal unless a motion was filed within 60 days,
  • a conditional dismissal order allowing an additional 20 days, and
  • a final dismissal “with prejudice” citing failure to abide by deadlines and an “overall pattern of delay.”

Under CPLR 205-a, the court characterizes this as termination for “neglect,” which bars the six-month recommencement window. Importantly, the court’s analysis does not require (as CPLR 205[a] might) that the dismissal order include particularized findings of a “general pattern of delay” to defeat the savings statute. The statutory architecture after FAPA makes the bar easier to trigger.

3.3. Impact

(a) Foreclosure plaintiffs face a stricter recommencement regime

The decision reinforces that CPLR 205-a is materially harsher than CPLR 205(a) for foreclosure plaintiffs. Missing deadlines, failing to move cases forward, or similar litigation missteps can eliminate the six-month grace period even when the initial action was timely filed.

(b) Case-management orders now carry heightened statute-of-limitations consequences

Because noncompliance with court-imposed deadlines can qualify as “neglect” that bars recommencement, lenders must treat scheduling directives—especially orders to move for judgment of foreclosure and sale—as limitations-critical events. Post-FAPA, a dismissal for failure to prosecute is not merely a setback; it may permanently foreclose any later action if the limitations period has run.

(c) Retroactivity is functionally entrenched (at least in the Appellate Divisions)

By relying on Bank of N.Y. Mellon v Richards and citing a growing body of supportive authority, the Third Department signals that retroactivity challenges will rarely succeed in the usual recommencement posture. This accelerates doctrinal convergence: litigants should plan as though CPLR 205-a will govern most pending/recent foreclosure recommencement disputes.

(d) Borrowers’ defenses strengthen where earlier foreclosure actions were dismissed for lender delay

The practical beneficiary is the mortgagor: if an earlier foreclosure was dismissed due to lender inaction and the limitations period has expired from acceleration, CPLR 205-a may prevent revival of the claim—supporting quiet title and mortgage discharge remedies.

4. Complex Concepts Simplified

  • Acceleration: A lender’s election to declare the entire loan balance immediately due (rather than only missed installments). Once accelerated, the statute of limitations generally runs on the whole debt from the acceleration date.
  • Statute of limitations (CPLR 213[4]): A time limit (six years for mortgage foreclosure as a contract claim) within which the lender must sue. After it expires, the claim is time-barred.
  • Savings statute (CPLR 205(a) / CPLR 205-a): A rule that sometimes allows a plaintiff to refile within six months after a timely case ends without reaching the merits. After FAPA, foreclosures use CPLR 205-a, which is stricter.
  • “Neglect” (CPLR 205-a): A broad disqualifier. If the earlier foreclosure ended due to “any form of neglect” (including a one-time failure), the plaintiff cannot use the six-month grace period to recommence.
  • Retroactive application: Applying a new statute to events or cases that began before the statute took effect. Here, FAPA’s CPLR 205-a applies retroactively in the category described by the statute and prior case law.
  • Searching the record: A court’s authority on a summary judgment motion to grant judgment to the nonmoving party if the record shows that party is entitled to judgment as a matter of law.

5. Conclusion

Deutsche Bank Natl. Trust Co. v Bessette solidifies a post-FAPA foreclosure rule in the Third Department: where a prior foreclosure was dismissed for missed court deadlines or similar inaction, that termination is “neglect” under CPLR 205-a, eliminating the six-month recommencement window—even if the lender could have argued for the more forgiving standards of CPLR 205(a) in the pre-FAPA era.

Coupled with the court’s adherence to Bank of N.Y. Mellon v Richards on retroactivity and its reliance on Van Dyke v U.S. Bank, Natl. Assn. for the acceleration/limitations framework, the decision underscores a broader theme: FAPA has converted procedural delay in foreclosure litigation into a potentially dispositive, limitations-based defeat.