In the United States Court of Appeals FOR THE SECOND CIRCUIT

AUGUST TERM 2023 No. 23-659

EAST FORK FUNDING LLC, Plaintiff-Appellee,

NEW YORK STATE ATTORNEY GENERAL, Intervenor,

v. U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR GREENPOINT MORTGAGE FUNDING TRUST MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR6, Defendant-Appellant.

On Appeal from the United States District Court for the Eastern District of New York

ARGUED: FEBRUARY 29, 2024 DECIDED: OCTOBER 1, 2024 Before: LOHIER and MENASHI, Circuit Judges, and LIMAN, Judge. *

In 2020, Plaintiff-Appellee East Fork Funding LLC filed this quiet title action against Defendant-Appellant U.S. Bank, N.A., on a mortgage recorded against East Fork’s property. The mortgage had already been subject to three foreclosure actions, two of which had been voluntarily discontinued by the mortgagee. The district court granted summary judgment in favor of East Fork, holding that under the Foreclosure Abuse Prevention Act (“FAPA”), enacted in December 2022, the voluntary discontinuances did not reset the six- year statute of limitations to bring a foreclosure action. The statute of limitations therefore continued to run from the commencement of the first foreclosure action in 2010 and ran out six years later, entitling East Fork to quiet title. On appeal, U.S. Bank argues that FAPA does not apply to voluntary discontinuances that took place prior to FAPA’s enactment, that such retroactive application would be unconstitutional, and that under pre-FAPA law the voluntary discontinuances did reset the statute of limitations.

Whether and to what extent FAPA applies retroactively to voluntary discontinuances is a novel question of state law and answering it is necessary to resolve this appeal. We therefore certify the following question to the New York Court of Appeals: Whether Sections 4 and/or 8 of the Foreclosure Abuse Prevention Act, codified at N.Y. C.P.L.R. 203(h) and 3217(e), respectively, apply to a unilateral voluntary discontinuance taken prior to the Act’s enactment.

Judge Menashi concurs in a separate opinion. Judge Liman concurs in a separate opinion.

*Judge Lewis J. Liman of the United States District Court for the Southern District of New York, sitting by designation.

2 ANTHONY R. FILOSA, Rosenberg, Fortuna & Laitman, LLP, Garden City, NY (Steven A. Biolsi, Biolsi Law Group, P.C., New York, NY, on the brief), for Plaintiff- Appellee.

MARK S. GRUBE, Senior Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for Intervenor.

PATRICK G. BRODERICK (Steven Lazar, on the brief), Greenberg Traurig, LLP, New York, NY, for Defendant- Appellant.

MENASHI, Circuit Judge:

In 2020, Plaintiff-Appellee East Fork Funding LLC filed this quiet title action against Defendant-Appellant U.S. Bank, N.A., on a mortgage recorded against East Fork’s property. East Fork purchased the property in September 2016. At that time, the mortgage had already been subject to three foreclosure actions, two of which had been voluntarily discontinued by the mortgagee: (1) an action commenced in 2010 and voluntarily discontinued in 2011, (2) an action commenced in 2011 and voluntarily discontinued in 2016, and (3) an action commenced in 2016 for which an amended judgment of foreclosure