Monday, September 15, 2014

In a mortgage foreclosure action, a challenge to standing, and assignment of the mortgage and the underlying note.

Practice point:  In a mortgage foreclosure matter where the defendant challenges plaintiff's standing, the plaintiff must prove standing to be entitled to relief. The plaintiff has standing where, at the time the action is commenced, it is the holder or assignee of both the subject mortgage and the underlying note. Written assignment of the underlying note or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation.

Student note: Once a promissory note is tendered to and accepted by an assignee, the mortgage passes as an incident to the note. However, the assignment of a mortgage without assignment of the underlying debt is a nullity, and no interest is acquired by it.

Case:  HSBC Bank USA, N.A. v. Gilbert, NY Slip Op 05950 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue:  Hearsay evidence in opposing summary judgment.