Bank Does Not Establish Legal Standing to Bring a Foreclosure Lawsuit

September 25, 2016 By Elliot S. Schlissel

In a case before justice Maryann Brigantti, sitting in a foreclosure part, in Bronx county US bank moved to strike a defendant’s answer. They brought a motion for summary judgement in their foreclosure lawsuit. This type of application urges a court to eliminate the need for a trial in a foreclosure case. They claimed in their motion for summary judgement they produced a copy of the mortgage. In addition they produced a written assignment of the mortgage. They also submitted an affidavit by an individual named Wild. This affidavit asserted the defendants defaulted on the loan and the bank was in physical custody pf the note.

The defendants claimed they never received communication from the bank regarding the foreclosure settlement conferences. They requested to have the case transferred back to the foreclosure mediation settlement conference part.

Challenge to the Bank’s Standing to Sue

The homeowners also claimed the bank did not have legal standing to bring the lawsuit. They claimed that Wild’s affidavit only stated that before the action was commenced the bank was in physical possession of the note the affidavit did not provide factual allegations regarding the physical delivery of the note. The affidavit did not establish that Wild personally inspected the note. Justice Brigantti stated without having further details the bank failed to establish it was the holder of the note before the commencement of the foreclosure lawsuit. Therefore the bank did not sufficiently establish they had standing to bring the foreclosure lawsuit.

Homeowners Resided in the Home

Justice Brigantti pointed out the homeowners resided in the home. They only missed one court conference and that public policy considerations required the matter to be returned to the foreclosure conference part for the parties to negotiate in good faith to work out a reasonable mortgage modification.