FAPA’s Retroactive Bar on Unilateral De‑Acceleration Applies to Unenforced Foreclosure Judgments: U.S. Bank Trust, N.A. v. Miele

Introduction

In U.S. Bank Trust, N.A. v. Miele, 2025 NY Slip Op 06211 (2d Dept Nov. 12, 2025), the Appellate Division, Second Department, affirmed a trial court order that granted renewal based on a change in the law—the Foreclosure Abuse Prevention Act (FAPA)—and, upon renewal, dismissed a foreclosure complaint as time-barred and vacated an order and judgment of foreclosure and sale. The decision consolidates and clarifies several key procedural and substantive points at the intersection of foreclosure practice, statutes of limitation, and the retroactive reach of FAPA, most notably:

FAPA’s amendment to CPLR 203(h) retroactively prohibits lenders from using unilateral de‑acceleration to reset or revive the statute of limitations after acceleration of a mortgage debt.
FAPA applies to pending foreclosure matters in which a final judgment of foreclosure and sale has not been “enforced.”
A motion for leave to renew is an appropriate vehicle to revisit prior rulings—including those implicating the law of the case—when an intervening change in the law would alter the prior determination.

The parties are a mortgage trustee-plaintiff and the borrower-defendants, Stephen D. and Catherine G. Miele. The litigation history spans an initial 2009 foreclosure that accelerated the debt, its dismissal in 2014, a second foreclosure filed in 2016, and intervening appellate activity before FAPA took effect in late 2022. The core issue on appeal was whether, given FAPA’s retroactive amendments, the 2016 action is time-barred and whether the court could revisit prior orders to reach that result.

Summary of the Opinion

The Second Department affirmed the Supreme Court’s order granting the borrowers’ motion for leave to renew their prior CPLR 3211(a)(5) statute-of-limitations motion and, upon renewal, dismissing the complaint as time-barred and vacating the order and judgment of foreclosure and sale.

The court held:

A motion to renew based on a change in law is proper and timely where made before the time to appeal a final judgment expires; the borrowers filed their renewal motion before service of notice of entry of the foreclosure judgment.
The law-of-the-case doctrine does not bar reconsideration where a subsequent change in the law (here, FAPA) would alter the prior determination.
FAPA applies retroactively and by its terms applies to actions “in which a final judgment of foreclosure and sale has not been enforced.” Because the judgment here had not been enforced when the borrowers moved, FAPA governed.
Under CPLR 203(h), as amended by FAPA, a lender may not unilaterally “waive, postpone, cancel, toll, revive, or reset” accrual once a cause of action under CPLR 213(4) has accrued. The plaintiff’s 2015 unilateral de‑acceleration letters therefore could not revive or reset the statute of limitations running from the 2009 acceleration. The 2016 action was time-barred.
Constitutional challenges to FAPA (Due Process, Takings, and Contract Clause) are unavailing under the Second Department’s recent precedents.

Analysis

Precedents Cited and Their Influence

Opalinski v City of New York, 205 AD3d 917; FV-1, Inc. v Palaguachi, 234 AD3d 818; 97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d 1038 – These decisions confirm that a motion for leave to renew is the proper means to obtain relief based on a change in the law. The court relied on this line to uphold the procedural propriety of the borrowers’ renewal motion predicated on FAPA.
Matter of Eagle Ins. Co. v Persaud, 1 AD3d 356; U.S. Bank N.A. v Tong, 230 AD3d 716; Dinallo v DAL Elec., 60 AD3d 620 – After a final judgment is entered, a renewal motion based on a change in law must be made before the time to appeal the judgment expires. The court emphasized that the borrowers moved before service with notice of entry of the foreclosure judgment, satisfying this timeliness requirement.
New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 205 AD3d 727; Foley v Roche, 86 AD2d 887; Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213 – These cases set out the law-of-the-case doctrine and its exception for changes in law. The Second Department applied the exception to allow reconsideration of its earlier 2020 ruling (which had only partially limited the claims) in light of FAPA.
Citibank, N.A. v Horan, 230 AD3d 1216; Milone v US Bank N.A., 164 AD3d 145 – The court restated the acceleration rule: commencement of a foreclosure seeking the full balance accelerates the debt, starting the six-year limitations period under CPLR 213(4).
CPLR 203(h) (as amended by FAPA, L 2022, ch 821, § 4) – The heart of FAPA relevant here: once a foreclosure cause of action accrues, “no party may, in form or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual” or otherwise extend the limitations period absent express statutory authorization. This repudiates reliance on unilateral de‑acceleration letters to reset the clock.
L 2022, ch 821, § 10 (FAPA’s reach) – FAPA “shall apply to all actions commenced on an instrument described under CPLR 213(4) in which a final judgment of foreclosure and sale has not been enforced.” The court applied this provision to hold FAPA applicable here because the judgment had not been enforced when the borrowers moved.
Wilmington Sav. Fund Socy., FSB v Thomas, 226 AD3d 1064; FV-1, Inc. v Palaguachi, 234 AD3d at 821–22; U.S. Bank Natl. Assn. v Livoti (decided herewith) – These authorities reinforce that FAPA’s applicability turns on enforcement of the foreclosure judgment; when not enforced, FAPA applies retroactively and can lead to dismissal.
Deutsche Bank Natl. Tr. Co. v Dagrin, 233 AD3d 1065; 97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d at 1043–44; U.S. Bank N.A. v Lynch, 233 AD3d 113; Genovese v Nationstar Mtge. LLC, 223 AD3d 37 – These cases reject constitutional challenges to FAPA, supporting the court’s disposition of the plaintiff’s Due Process, Takings, and Contract Clause arguments.

Legal Reasoning

Renewal based on a change in the law was proper and timely.
The court emphasized that CPLR 2221(e) authorizes renewal for a change in the law. Where a final judgment has been entered, such a motion must be filed before the time to appeal that judgment expires. Here, the borrowers filed their renewal motion approximately three weeks before the plaintiff served the order and judgment of foreclosure and sale with notice of entry, making the application procedurally sound.
Law of the case did not bar reconsideration.
Although the Second Department in 2020 had modified the trial court’s 2016 order only to dismiss some time-barred installment claims, the court explained that an intervening change in law—FAPA—permits reconsideration. The doctrine yields when “new factual circumstances, additional relevant evidence, or a change in the law” would alter the prior result. FAPA’s amendments met that standard.
FAPA’s retroactivity and scope controlled the outcome.
FAPA expressly applies to actions on instruments covered by CPLR 213(4) “in which a final judgment of foreclosure and sale has not been enforced.” The judgment here had not been enforced at the time of the borrowers’ motion; thus FAPA governed. The Second Department also reaffirmed that FAPA applies retroactively, relying on a consistent line of its recent decisions.
Acceleration in 2009 started the six-year limitations period; unilateral de‑acceleration in 2015 could not reset it under CPLR 203(h).
It was undisputed that the 2009 foreclosure accelerated the mortgage debt. Under CPLR 213(4), the six-year limitations period began then. The plaintiff attempted to avoid the time bar by submitting 2015 letters stating that the loan was “de‑accelerated” and restored to installment status. But CPLR 203(h), as amended by FAPA, prohibits a party from unilaterally resetting or reviving accrual once it occurs. Accordingly, the 2016 foreclosure—commenced more than six years after the 2009 acceleration—was time-barred. The trial court correctly dismissed the complaint and vacated the foreclosure judgment, and the Second Department affirmed.
Constitutional challenges failed.
The court rejected the lender’s claims that FAPA violates the Takings, Due Process, or Contract Clauses, following its own precedents holding that FAPA is a permissible, retroactive procedural/statute-of-limitations reform and does not effect an unconstitutional taking or impairment of contract.

Impact

Miele cements and operationalizes the Second Department’s FAPA jurisprudence in three consequential ways:

Unilateral de‑acceleration letters are ineffective to cure a limitations problem. Lenders cannot rely on correspondence purporting to revoke acceleration to reset the six-year clock. Once accelerated, the limitations period runs to completion unless an express statutory mechanism applies.
Unenforced judgments remain vulnerable to FAPA-based dismissal. Even after a judgment of foreclosure and sale, if the judgment has not been “enforced,” borrowers can invoke FAPA via a timely renewal motion to obtain dismissal and vacatur.
Renewal based on FAPA can overcome prior appellate rulings. The opinion confirms that law-of-the-case does not insulate earlier determinations from a later statutory change. Practitioners should scrutinize cases with earlier rulings adverse to limitations defenses and consider renewal where FAPA changes the calculus.

Practical consequences include:

For lenders/servicers: Diligently track acceleration dates. If more than six years have elapsed since an acceleration, a new foreclosure is likely barred. De‑acceleration letters, voluntary discontinuances, or other unilateral steps will not revive the claim. Where judgments exist, act to “enforce” them promptly; otherwise, they may be vulnerable to FAPA-based renewal motions.
For borrowers: Identify the earliest acceleration event (often, commencement of a prior foreclosure seeking the full balance). If the six-year period has run and the judgment has not been enforced, a CPLR 2221(e) renewal motion based on FAPA may yield dismissal and vacatur, provided it is made before the appeal time on the judgment expires.
For courts: Expect more motions to renew seeking to apply FAPA retroactively, including in cases that have progressed to judgment but not yet to enforcement.

Complex Concepts, Simplified

Acceleration: When a lender declares the entire loan balance due immediately (often by filing a foreclosure seeking the full amount), the six-year statute of limitations under CPLR 213(4) begins to run on the entire debt.
De‑acceleration: A lender’s attempt to revoke acceleration and restore installment payments. Before FAPA, unilateral de‑acceleration sometimes affected limitations analysis; after FAPA’s CPLR 203(h), unilateral acts cannot “revive or reset” accrual.
CPLR 203(h) (FAPA): Once a foreclosure cause accrues, no party may unilaterally waive, postpone, cancel, toll, revive, or reset that accrual, or otherwise unilaterally extend the limitations period, unless a statute expressly allows it.
“Enforced” judgment of foreclosure and sale: FAPA applies to actions “in which a final judgment of foreclosure and sale has not been enforced.” While “enforced” is not defined in the opinion, Second Department cases treat judgments as “unenforced” where the sale has not been carried out to completion (the opinion cites Wilmington Sav. Fund Socy. v Thomas and a companion case decided the same day).
Law of the case: Once an appellate court decides a legal issue in a case, that ruling generally binds subsequent proceedings. However, a later change in controlling law permits reconsideration.
Motion for leave to renew (CPLR 2221[e]): A vehicle to ask the court to revisit a prior decision based on new facts or a change in the law. If a final judgment has been entered, a renewal motion based on a change in the law must be made before the time to appeal that judgment expires.
Notice of entry: Formal service of an order or judgment with notice of entry triggers the time to take an appeal. Filing a renewal motion before service with notice of entry preserves timeliness under the Persaud rule.

Conclusion

U.S. Bank Trust, N.A. v. Miele is a significant reaffirmation of FAPA’s reach and rationale. It holds that unilateral de‑acceleration letters cannot reset the limitations period after acceleration, that FAPA applies retroactively to foreclosures where a judgment has not been enforced, and that courts may revisit earlier rulings via renewal when a statutory change warrants a different result. The decision underscores the imperative for lenders to commence foreclosure within six years of acceleration and, where judgments have been obtained, to enforce them without delay. For borrowers, Miele highlights a powerful, statute-based pathway to dismiss time-barred foreclosures—even post-judgment—provided FAPA applies and the renewal motion is timely. In the broader landscape, Miele contributes to a consistent Second Department framework implementing FAPA’s core policy: finality, clarity, and the elimination of unilateral lender maneuvers to evade statutes of limitation.