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The U.S. Supreme Court on Oct. 6, 2025, denied a petition for certiorari in U.S. Bank Nat. Assn. v. Fox, No. 24-1178, 2025 WL 2823764, at *1 (U.S. Oct. 6, 2025), leaving in place a state court ruling based on the Foreclosure Abuse Prevention Act (FAPA). In doing so, the court effectively left the issue of whether FAPA can be applied retroactivity to two cases pending before the New York Court of Appeals and one before the U.S. Court of Appeals for the Second Circuit. (See Holland & Knight's previous alerts, "Federal Appeals Court: Can FAPA Be Applied Retroactively in New York?," Oct. 9, 2025, and " New York Court of Appeals to Determine Whether FAPA Can Be Applied Retroactively," May 23, 2025.) Oral arguments before the New York Court of Appeals on retroactive application of FAPA are scheduled for Oct. 16, 2025.
The dispute originated from a mortgage made by Cassandra Fox in 2008. After a foreclosure action by U.S. Bank's predecessor was dismissed, the bank filed a new action, relying on New York Civil Practice Law and Rules (CPLR) Section 205(a), which allowed for a six-month window to refile a case after a non-merits dismissal. The second foreclosure action was timely filed within six months and otherwise in accordance with the version of CPLR Section 205(a) in effect at the time. In December 2022, while U.S. Bank's second foreclosure action was pending, the New York Legislature passed FAPA. The new law placed further restrictions on a plaintiff's right to refile following dismissal, making it harder for lenders to restart foreclosure proceedings after a prior dismissal.
The First Department of the New York Supreme Court Appellate Division ruled that U.S. Bank's foreclosure was time-barred under the new FAPA regulations. After the New York Court of Appeals rejected U.S. Bank's appeal, the plaintiff filed a petition to the U.S. Supreme Court.
In its petition, U.S. Bank and its supporters, including the American Bankers Association (ABA), argued in part that the retroactive application of FAPA in Fox extinguished its mortgage lien without just compensation, resulting in a violation of the Takings Clause of the Fifth Amendment. They also argued that the lender's due process rights were violated by imposing new legal burdens without fair notice or a legitimate legislative purpose.
With the Supreme Court's denial of certiorari, the question of whether FAPA can be applied retroactively will likely be decided by the New York Court of Appeals and potentially the Second Circuit.
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