Law firm, trade groups petition Supreme Court to address New York foreclosure statute

A group of banking and mortgage associations is trying to get the U.S. Supreme Court‘s attention due to constitutional concerns about the state of New York’s Foreclosure Abuse Prevention Act (FAPA).

Friedman Vartolo LLP announced on Monday that it has filed an amicus curiae brief with the Supreme Court on behalf of five of the nation’s leading mortgage and banking trade associations.

These parties include the New York Mortgage Bankers Association (NYMBA), American Institute of Servicing and Legal Executives (AISLE), American Bankers Association (ABA), Mortgage Bankers Association (MBA) and New York Bankers Association (NYBA).

The brief, submitted on July 1, supports U.S. Bank National Association’s petition for writ of certiorari in U.S. Bank v. Fox. It urges the court to address the constitutionality of FAPA’s retroactive application.

FAPA aims to prevent abusive foreclosure practices by putting stricter time limits on when lenders can refile foreclosure cases. FAPA applies retroactively, meaning it can affect foreclosure cases that were already decided under the old rules.

The groups argue that the uncertainty caused by FAPA’s retroactive enforcement is harmful not only in New York but across the U.S. mortgage industry. They also argue that it violates the due process and takings clauses of the Constitution.

The brief urges the Supreme Court to hear U.S. Bank’s argument that FAPA is unconstitutional, saying that FAPA’s retroactivity has “sown confusion and unpredictability throughout New York’s judicial foreclosure system.”

“The indefinite retroactive application of FAPA introduces significant uncertainty into New York’s mortgage foreclosure process,” said Michael DeRosa, a partner at Friedman Vartolo and co-author of the brief. “While this is primarily a state issue, the potential ripple effects could impact broader lending practices and investor confidence on a national scale.”

The amicus submission was also co-authored by Friedman Vartolo attorney Zachary Gold and senior appellate counsel Stephen Vargas.

“This is a case that sits at the intersection of state legislative reform, federal constitutional
safeguards, and the national housing finance infrastructure,” Gold said. “We believe the Court’s intervention is warranted and necessary to preserve due process, protect property rights, and stabilize the lending environment.”