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Issue of Standing in Foreclosure Lawsuit is Waived By Failure to Plead It In The Defendant’s Answer

foreclosure defense attorneysColumbia Capital had loaned Mr. Cuervo $130,000. They had received a mortgage against real estate owned by Mr. Cuervo as security for this loan. Mr. Cuervo had executed a note and a mortgage to Columbia Capital at the time of the closing on the purchase of the property.

Summary Judgment Motion

Columbia had made an application for summary judgment. Their application was based on their cause of action for foreclosure. (A summary judgment motion sought to have the court render a decision there was no question of fact that the plaintiff, in this case, was entitled to a judgment based on their allegations and no trial was necessary). In their summary judgment application Columbia asked the court to strike all of the affirmative defenses made by the defendant.

Columbia Claims Mortgage is in Arrears

Columbia claimed that Mr. Cuervo did not make his mortgage payments pursuant to the note and mortgage and that they were entitled to summary judgment because there were no issues of fact in the case. The opposition papers submitted by Mr. Cuervo’s attorney alleged Columbia did not have standing to bring this lawsuit. (Lack of standing means Columbia was not the appropriate party to move forward with this foreclosure lawsuit).

Justice Peter Mayer sitting in the Supreme Court in Suffolk County held the opposition submitted by Cuervo’s attorney did not raise any questions of fact. It did not rebut Columbia’s prima facie showing of entitlement to summary judgment. Judge Mayer went on to state the failure to raise as an affirmative defense the issue of standing by Mr. Cuervo’s attorney acted as a waiver concerning this potential defense to the lawsuit. In other words, since Cuervo didn’t plead a lack of standing, the Court would not hear arguments as to whether there actually was a lack of standing for Columbia to bring this foreclosure proceeding.

Columbia’s application for summary judgment was granted by Judge Mayer.

Conclusion

Defense counsel should allege a lack of standing in all foreclosure lawsuits. At the time the answer is submitted by the defendant, the defendant is usually not in a position to know whether the plaintiff has standing. These issues are clarified during the discovery process of the lawsuit.foreclosure advocate for homeowners

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