New York court backs Fannie Mae’s refiled foreclosure under FAPA
The lender did not walk away. It asked the court to vacate the dismissal, lost again in May 2022, filed a late appeal, and saw that appeal dismissed by December 2022. Meanwhile, on November 10, 2022, Fannie Mae simply refiled. Service on the homeowner wrapped up a day later.
This time the borrower pushed to end the case on timing. She sought summary judgment – a decision without a trial – arguing the new foreclosure came too late. She also asked to cancel the mortgage under RPAPL 1501(4), which lets a homeowner clear a mortgage once the foreclosure clock expires, and added a good-faith counterclaim and a bid for attorneys’ fees. A Suffolk County judge denied those requests in May 2024. She appealed.
The panel affirmed, leaving the borrower’s motion denied and the foreclosure in place.
New York gives a lender that files on time a six-month cushion to refile if the first case ends for a reason unrelated to the merits. That cushion lives in CPLR 205(a) and, for foreclosures, in CPLR 205-a – the provision the Foreclosure Abuse Prevention Act put on the books. It disappears if the first case was decided on the merits.
The court drew a sharp line. A dismissal for missing the RPAPL 1304 notice is not a ruling on the merits, the judges held – it is a failure to clear a condition the law sets before a lender can sue. That kept the window open.
