Thursday, May 26, 2016

An action to foreclose a mortgage.

Practice point:  To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.  Where the plaintiff's standing is placed in issue by a defendant, the plaintiff must prove its standing as part of its prima facie showing. A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced.

Student note:  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.

Case:  Flagstar Bank, FSB v. Mendoza, NY Slip Op 03849 (2d Dep't May 18, 2016)

Here is the decision.

Tomorow's issue:  Vacating a note of issue, and a jury demand.