Foreclosure Strategies
May 10 2018
The best way to deal with a foreclosure is to take aggressive legal action when the foreclosure laws... [Read More...]
April 29, 2014 By
The defendants had submitted arguments the plaintiffs’ affidavits which were submitted do not conform with New York State Law and therefore should be considered defective. They also claimed there was an endorsement on the allonge which was also defective.
Bank Does Not Have Standing to Bring The Foreclosure Lawsuit
CitiMortgage failed to establish it was the appropriate holder of the note. Justice Carolyn Wade rendered a decision stating that Citibank failed to submit the documentation substantiating that CitiMortgage was the appropriate successor to CitiFinancial Mortgage Company. CitiFinancial Mortgage Company was the name of the institution which Premium Capital Funding had assigned the note and mortgage to.
Note Not Physically Delivered
Justice Wade in her decision also indicated CitiMortgage failed to establish it was the actual holder of the original note and mortgage by way of physical delivery. The Judge’s decision went on to state the allonge and note were undated and had not been affixed to the mortgage. (It should be noted that an allonge is a document which modifies, changes, and provides further information with regard to a mortgage). Judge Wade in her decision also stated an out of state affidavit needs to be accompanied by a Certificate of Conformity in the appropriate admissible form before it can be accepted in a proceeding in a New York State court. The affidavits herein were not in conformity and therefore are considered defective. CitiMortgage’s application for summary judgment was therefore denied.
Conclusion
Time and time again in the numerous articles I have written, lack of standing affirmative defenses have been successful in preventing banks from successfully bringing summary judgment motions in foreclosures. It is therefore extremely important in every foreclosure lawsuit the defendants allege lack of standing argument. Until the lawsuit is initiated and discovery takes place within the confines of the lawsuit, it is usually impossible to ascertain as to whether the appropriate financial institution is bringing the foreclosure legal action. Stated in another form, the defendant homeowners don’t know whether the right party is suing them and therefore it is necessary to allege lack of standing affirmative defense in all cases where the plaintiff in the foreclosure lawsuit is not the original financial institution that granted the mortgage loan.