Friday, October 16, 2015

Standing to commence a foreclosure action.

Practice point:  A plaintiff has standing to commence a foreclosure action when it is either the holder or the assignee of the underlying note at the time the action is commenced.  Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation.

Student note:  Where the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief.  However, on a defendant's motion, the defendant must establish, prima facie, the plaintiff's lack of standing as a matter of law.

Case:  Bank of N.Y. Mellon v. Green, NY Slip Op 07460 (2d Dept. 2015)

Here is the decision.

Monday's issue:  A motion for summary judgment in lieu of complaint, pursuant to CPLR 3213.