Wednesday, February 17, 2016

Standing in a mortgage foreclosure action.

Practice point:  By submitting evidence that the note was in its possession and the mortgage had been assigned to it prior to the commencement of the action, the plaintiff made a showing sufficient to deny that branch of the defendants' 3211(a)(3) motion to dismiss for lack of standing.

Student note:  A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note. The plaintiff may demonstrate that it is the holder or assignee of the underlying note by showing either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the action. On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law. To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing.

Case:  Arch Bay Holdings, LLC-Series 2010B v. Smith, NY Slip Op 00913 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue: Res ipsa, and summary judgment denied.