October 16, 2025

U.S. Bank National Association, as Trustee for the RMAC Trust, Series 2016-CTT v. Fox, 216 A.D.3d 445 (N.Y. App. Div. 1st Dept. 2023), advanced through the procedural steps of the Supreme Court of the United States (“SCOTUS” or “the Court”) until SCOTUS denied the request to hear the petition for a “writ of certiorari” (the “petition”). For background, a “writ of certiorari” is the Court’s order directing a lower court to send up the record of a case for review. By filing the petition, U.S. Bank National Bank Association had, in simple terms, asked SCOTUS to review the retroactive application of the Foreclosure Abuse Prevention Act (“FAPA”) in New York and to resolve whether that retroactivity violates constitutional protections.

Friedman Vartolo LLP (“FV”) filed an amicus brief in support of U.S. Bank’s petition behalf of five major national trade organizations. FV’s brief included arguments that FAPA retroactively extinguished vested foreclosure rights in violation of the Takings Clause and Due Process protections. It also cautioned that such retroactivity destabilizes the secondary mortgage market by creating uncertainty in loan enforcement, securitization, and investor confidence.

Fox was set for “Distribution at Conference” on September 29, 2025, a stage where a petition is selected for formal debate in conference by the Justices. As of October 6, 2025, the petition was denied pursuant to the SCOTUS’s Order List dated October 6, 2025, meaning that it will not be heard by SCOTUS.  A ruling on this petition could have clarified the constitutional limits on retroactive foreclosure legislation, with sweeping consequences for lenders, servicers, investors, and property owners across the housing finance industry.

FV will subsequently provide its clients with additional updates and guidance.

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If you have questions about this publication, please contact Adam Friedman, Ralph Vartolo or Michael DeRosa,
Friedman Vartolo LLP, 1325 Franklin Avenue, Suite 160, Garden City, NY 11530, Phone: (212) 471-5100 | Fax: (212) 471-5150.