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Court Decides if Plaintiff has Standing to Bring Case


An Probate Lawyer said that the records reflect that a mortgagor executed a note and mortgage in favor of a company. in the principal amount of $167,475.00, secured by the premises located in New York. As alleged in the affidavit, the Vice President of Loan Documentation of the mortgagee’s Bank, the note and mortgage fell into default upon the mortgagor’s failure to make the required payment due on August 1, 2010 and thereafter. Insofar as it appears, the borrower had died intestate. Letters of Administration for the Estate of the deceased borrower were subsequently issued by the Surrogate’s Court, naming one of the decedent’s two sons in taking charge of Estate Administration. The company commenced an action to foreclose the mortgage in the County, where the property is located.The two sons answered, denying the material allegations in the complaint and asserting several affirmative defenses, including the company’s purported lack of standing.

The court ruled that it is well settled that on a motion for summary judgment in an action to foreclosure a mortgage, a plaintiff/mortgagee, as here, establishes its prima facie right to judgment as a matter of law through the production of the relevant mortgage, the unpaid note and an affidavit attesting to the mortgagor’s default. However, where standing has been drawn into question, it is incumbent upon a plaintiff/mortgagee to prove its standing in order to be entitled to any relief. “A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced”.

A Westchester County Probate Lawyer said that in the case at bar, the primary affidavit in support of summary judgment is subscribed by a Vice President of Loan Documentation of the Bank, who affirms, based on unstated sources of personal knowledge and a review of “the books and records maintained in the ordinary course of business in serving this loan, that the Bank, is in possession of the promissory note, endorsed in blank and confirms that the mortgagee was in possession of the promissory note prior to the commencement of this action. While the foregoing, in and of itself, is lacking in sufficient factual detail to establish standing prior to the commencement of this action, the various exhibits submitted therewith include a copy of the subject note indorsed by the company to the order of the corporation., and then, in blank, by the latter. Moreover, although neither indorsement is dated, these papers also contain a written assignment of the mortgage by the original lender to the corporation, and recorded in the County prior to the commencement of this action. More important, however, on the issue of standing is the fact that this assignment of mortgage also provides for an assignment of “the notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said Real Estate Mortgage”. Since it is undisputed that the Bank, is the successor by merger of the corporation, the documents constitute prima facie evidence that the Bank, was the lawful owner of both the note and mortgage at the time that the action was commenced.

A Suffolk County Probate Lawyer in another case, the issue presented to be determined by the court is whether or not there exists a valid assignment of the subject note and mortgage. The Judicial Hearing Officer (JHO) failed to determine the application of the original assignee, in effect, for a determination that the assignment was valid. The JHO should have considered the import of the purported “original assignment” not merely as an explanation of the alteration of the assignment, but as to whether, in view of the testimony of the employee servicing the loan, such circumstances were sufficient to establish that the original assignor owned the subject note and mortgage subsequent to the time it brought the instant motion, and in view of such circumstance, it had acquired standing to make the motion to be added as a party plaintiff. We note that prior to referring the matter to the JHO, the Supreme Court had already determined that since private parties had appeared in the action and waived all defenses, they had no viable defense of statute of limitations. Moreover, they never alleged any circumstances in which the identity of the ultimate assignee had any legal significance to them. In view of these circumstances, the matter must be remitted to the Supreme Court, for a determination of the outstanding issue of whether the original assignor eventually acquired a valid assignment capable of conveyance to the appellant and, thereafter, for a new determination of the motion to extend the duration of the notice of pendency.

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