DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR NOVASTAR HOME EQUITY LOAN ASSET BACKED CERTIFICATES SERIES 2007 ALSO KNOWN AS DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST SERIES 2007 PLAINTIFF APPELLANT v. JEFFREY PULVER WENDY PULVER DEFENDANTS RESPONDENTS ET AL DEFENDANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this mortgage foreclosure action in May 2023, seeking to revive a 2010 mortgage foreclosure action that had been dismissed pursuant to CPLR 3216, for failure to prosecute. We affirmed the order dismissing the 2010 action, finding that plaintiff had engaged in “ ‘persistent neglect’ ” (Deutsche Bank Natl. Trust Co. v Pulver, 211 AD3d 1600, 1602 [4th Dept 2022]). Defendants Jeffrey Pulver and Wendy A. Pulver (collectively, defendants) moved, inter alia, to dismiss this second action on the ground that it is barred by the statute of limitations. Supreme Court, among other things, granted that part of the motion seeking to dismiss the complaint, and we now affirm.

Plaintiff contends that the Foreclosure Abuse Prevention Act (FAPA) (L 2023, ch 821), enacted December 30, 2022, does not apply retroactively and thus does not render this action time-barred. We reject that contention. Under FAPA, CPLR 205-a (L 2022, ch 821, § 6) precludes the use of the general savings provisions of CPLR 205 in mortgage foreclosure actions where, as here, the prior dismissal was due to, inter alia, “any form of neglect, including but not limited to those specified in [CPLR 3216]” (CPLR 205-a [a] [emphasis added]). The legislature stated that FAPA “shall take effect immediately” and applied to all foreclosure actions “in which a final judgment of foreclosure and sale has not been enforced” (L 2023, ch 821, § 10; see MCLP Asset Co., Inc. v Zaveri [appeal No. 2], 243 AD3d 1209, 1211-1212 [4th Dept 2025]). At the time plaintiff filed its appellant's brief with this Court, the law was unsettled whether FAPA applied retroactively. In the interim, however, it has become settled law that it does apply retroactively (see Article 13 LLC v Ponce De Leon Fed. Bank, — NY3d —, —, 2025 NY Slip Op 06536, *3-5 [2025]; Van Dyke v U.S. Bank, N.A., — NY3d —, —, 2025 NY Slip Op 06537, *5 [2025]; MCLP Asset Co., Inc., 243 AD3d at 1211-1213).

Thus, we conclude that CPLR 205-a, enacted as a part of FAPA, renders this action time-barred inasmuch as the prior dismissal of the foreclosure action commenced in 2010 and our affirmance of that dismissal was for “any form of neglect” (CPLR 205-a [a]; see Deutsche Bank Natl. Trust Co., 211 AD3d at 1602; see also HSBC Bank USA, N.A. v Vesely, 244 AD3d 51, 54-55 [3d Dept 2025]).

Contrary to plaintiff's further contentions, FAPA is not unconstitutional under the Takings Clause of the United States Constitution (US Const, 5th Amend) or the Contracts Clause of the United States Constitution (US Const, art I, § 10 [1]), and it does not violate plaintiff's constitutional rights to substantive and procedural due process (US Const, 14th Amend, § 1). Even assuming, arguendo, that the Attorney General was properly served with notice of plaintiff's constitutional challenges, despite the lack of any proof of service in the record on appeal (see CPLR 1012 [b] [1], [3]; Executive Law § 71 [1]; see generally CPLR 306 [d], [e]), we conclude that plaintiff's contentions lack merit.

During the pendency of this appeal, the Court of Appeals determined that FAPA did not violate the Contracts Clause (see Van Dyke, — NY3d at —, 2025 NY Slip Op 06537, *7-8) and did not violate substantive or procedural due process (see Article 13 LLC, — NY3d at —, 2025 NY Slip Op 06536, *3-5; Van Dyke, — NY3d at —, 2025 NY Slip Op 06537, *5-7; see generally Federal Natl. Mtge. Assn. v Marshall, 246 AD3d 1234, 1235 [3d Dept 2026]). Although the Court of Appeals has not, as of this writing, specifically addressed the Takings Clause, this Court, along with all other departments of the Appellate Division, has rejected arguments that retroactive application of FAPA violates a mortgagee's rights under the Takings Clause (see U.S. Bank, N.A. v Gordon, 247 AD3d 423, 425 [1st Dept 2026]; Marshall, 246 AD3d at 1236-1237; Deutsche Bank Natl. Trust Co. v Testa, 243 AD3d 1255, 1258 [4th Dept 2025]; Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1071 [2d Dept 2024]).

Relying on Brothers v Florence (95 NY2d 290, 300-301 [2000]), plaintiff further contends that it should have been afforded a grace period in which to commence this action before FAPA was applied to truncate the limitations period. We disagree. Unlike the situation in Brothers, FAPA did not alter the existing “six-year statute of limitations whatsoever” (Article 13 LLC, — NY3d at —, 2025 NY Slip Op 06536, *5; Van Dyke, — NY3d at —, 2025 NY Slip Op 06537, *7). Plaintiff “had the full six-year limitations period in which to discontinue [the prior] foreclosure action and commence a new one” (Article 13 LLC, — NY3d at —, 2025 NY Slip Op 06536, *8). We thus conclude that plaintiff is not entitled to any grace period.

Inasmuch as we have determined that FAPA applies to this case and that the statute is not unconstitutional, we reject plaintiff's contention that we should apply the savings clause in CPLR 205.

Finally, plaintiff contends that a loan modification agreement reset the statute of limitations, rendering this action timely. We reject that contention. The document to which plaintiff is referring is entitled “Home Affordable Modification Trial Period Plan (Step One of Two-Step Documentation Process)” (Trial Plan). The Trial Plan provided, in pertinent part, that “if” defendants were compliant with the Trial Plan, then, and only then, would defendants be entitled to enter into a modification agreement. Contrary to plaintiff's contention, the Trial Plan was not a loan modification agreement. Moreover, defendants did not comply with the Trial Plan and, in fact, did not make any payments on the note and mortgage after the Trial Plan was executed (cf. Federal Natl. Mtge. Assn. v Jeanty, 39 NY3d 951, 952 [2022], rearg denied 39 NY3d 1066 [2023]). This is not a situation where there was “a payment of a portion of an admitted debt, made and accepted as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder” (Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 521 [1976]; see Gurecki v Gurecki, 189 AD3d 1729, 1730-1731 [3d Dept 2020]). In any event, even if the Trial Plan reset the statute of limitations, that document was signed in 2010 and, as a result, any reset limitations period would have expired in 2016, i.e., long before plaintiff commenced this action.

We therefore affirm the order and judgment.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court