Wednesday, April 16, 2014

Standing to commence a mortgage foreclosure action.

Practice point: A plaintiff has standing where it is the holder or assignee of both the subject mortgage and 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. Where a mortgage is represented by a bond or other instrument, an assignment of the mortgage without assignment of the underlying note or bond is a nullity.

Student note: Where the defendant puts standing into issue, the plaintiff must prove its standing in order to be entitled to relief.

Case: Bank of N.Y. Mellon v. Gales, NY Slip Op 02402 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A time-barred fraud claim.