In a case before Justice Elliot sitting in Supreme Court in Queens County, HSBC Bank brought a motion for summary judgment (a motion for a judgment of foreclosure claiming there are no issues that need to be tried) against Murphy in a foreclosure lawsuit. HSBC claimed they had possession of the original note with the proper endorsement. They therefore claimed they were the owner of the note and mortgage. They took the position that Murphy had not made his monthly mortgage payments and was therefore in default regarding his contractual obligations.
Bank Lacks Standing Defense
Murphy claimed in his defense the bank lacked standing to bring this lawsuit. He argued that a copy of the original note with a blank endorsement annexed to its motion and the affidavits dealing with the motion were invalid. Murphy claimed the endorsement was on a separate piece of paper which amounted to being on a blank page.
Justice Elliot found the affidavit of the bank’s servicer attesting to physical possession of the original note was not sufficient. He found the endorsement did not provide significant evidence that it was “firmly affixed thereto to become part thereof.” HSBC’s servicer did not provide sufficient information with regard to the original note’s condition. Therefore, Justice Elliot ruled the bank was not entitled to summary judgment on the case and the case would continue.
Elliot S. Schlissel and his associates have been representing clients in foreclosure cases throughout the Metropolitan New York area for more than 45 years.
