A financial institution has standing to foreclose on a mortgage when it is the holder or assignee of the subject mortgage. In addition, the financial institution must be the holder or assignee of the underlying note prior to the commencement of the foreclosure action which is initiated by the filing of the Summons and Complaint in the County Clerk’s office of the County in which the action is initiated. When the note is accepted by the assignee the mortgage passes to the new institution. It should be noted the transfer of a mortgage without the accompanying note does not validly transfer the mortgage.
How the Bank Becomes the Holder or Assignee of the Mortgage
For a bank to obtain standing to initiate a foreclosure lawsuit, it must be the holder or assignee of the note as well as have the original note and mortgage in its possession.
A plaintiff has standing to foreclose on a note if they are the holder of the note under the New York Uniform Commercial Code, if a person has possession of the note by delivery “from a person entitled to enforce it for the purposes of giving the plaintiff the right to enforce it”, the note was assigned to the plaintiff “by a person entitled to enforce it, for the purpose of giving the plaintiff the right to collect the debt.”
Lack of Standing Defense
It is important in every foreclosure case for a defendant to allege the plaintiff, financial institution, doesn’t have standing to bring the lawsuit. At the time the Answer is interposed, the defendant will usually not know whether this is true or not. The defendant will thereafter, through discovery demands to obtain copies of notes, mortgages and other original documents and/or review records at the County Clerk’s office, ascertain whether this defense has any merit to it. However, the way pleadings work in the State of New York, you must plead any potential affirmative defense whether you know the defense is valid or not. Thereafter you try to obtain records during the discovery process to validate your defense.
Elliot Schlissel is a foreclosure defense lawyer representing individuals in foreclosure cases throughout the Metropolitan New York area.
A foreclosure action was brought by JP Morgan Chase in the Supreme Court of New York County. Justice Francois Rivera was the judge assigned to the case. Chase claimed in their pleadings that Charles had executed a mortgage and note on real property in favor of Fleet Real Estate Funding. They claimed Fleet Real Estate Funding had assigned the mortgage to JP Morgan Chase. They claimed Charles defaulted on making his payments on the note and mortgage, they had accelerated the note and mortgage and served the acceleration notice on Charles.
Is it possible to stop paying your mortgage, and live in your home for many years, and stop the bank in its tracks from forcing you to make payments to them or successfully foreclosing on your home? The answer to this question is yes! If your bank fails to sue you, in the State of New York, for a period of six years from the time they accelerated the mortgage, you have a complete 
