- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Deutsche Bank National Trust Co. v. Rivera
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03423
Background
In April 2021, plaintiff Deutsche Bank commenced this action to foreclose a mortgage on property in White Plains against defendant Rosario Rivera. However, the plaintiff had previously commenced an action to foreclose the same mortgage in March 2009 (the 2009 action). The plaintiff voluntarily discontinued the 2009 action by stipulation dated September 1, 2011, with no mention of revoking its acceleration of the mortgage debt.
The defendant asserted a counterclaim pursuant to RPAPL 1501(4) to discharge the mortgage of record. Plaintiff moved for summary judgment and to strike defendant’s answer and counterclaim. Defendant cross-moved for summary judgment dismissing the complaint as barred by the six-year statute of limitations. Supreme Court, Westchester County (Charles D. Wood, J.), denied plaintiff’s motion and granted defendant’s cross-motion. Plaintiff appealed.
Holding
The Appellate Division, Second Department, affirmed, without costs or disbursements. The Court held that defendant demonstrated prima facie that the mortgage debt was accelerated by commencement of the 2009 action and that the current action, commenced in April 2021—more than six years later—was time-barred under CPLR 213(4).
Critically, the Court applied the Foreclosure Abuse Prevention Act (FAPA), enacted in 2022, which provides under CPLR 3217(e) that a voluntary discontinuance of a foreclosure action that does not expressly revoke the acceleration does not de-accelerate the mortgage debt or revive the statute of limitations. Since the 2011 discontinuance stipulation contained no mention of revoking acceleration, the mortgage debt remained accelerated and the limitations clock continued running. The plaintiff’s constitutional challenges to FAPA’s retroactive application were rejected as previously decided adversely to the plaintiff’s position.
Takeaways
This opinion is a significant application of FAPA to bar a second foreclosure action. Under the pre-FAPA regime, many lenders relied on the theory that voluntary discontinuance of a prior foreclosure action implicitly de-accelerated the mortgage debt and reset the statute of limitations. FAPA closed that loophole by requiring an express revocation of acceleration in the discontinuance stipulation. Lenders who failed to include such language in pre-FAPA discontinuance stipulations now find themselves unable to recommence foreclosure if more than six years have passed since the original acceleration.
Why It Matters
This decision is essential reading for mortgage foreclosure practitioners. FAPA has fundamentally changed the landscape for lenders who previously relied on the discontinue-and-recommence strategy to evade the statute of limitations. The retroactive application of FAPA means that even pre-2022 discontinuance stipulations are evaluated under the new standard. Lenders and servicers should audit their portfolios for cases where prior voluntary discontinuances lacked express revocation of acceleration language, as those loans may now be time-barred. For borrowers, this case provides a powerful defense against stale foreclosure actions and a basis for affirmatively seeking discharge of the mortgage under RPAPL 1501(4).