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...]
December 30, 2019 By
Carpenter failed to make his mortgage payments. This caused Beneficial to start a foreclosure lawsuit. In the foreclosure lawsuit Carpenter alleged various affirmative defenses. One of those affirmative defenses was that Beneficial lacked standing to bring the lawsuit.
Beneficial brought a motion for summary judgment. They alleged in this motion there was no question of fact that Carpenter took out a loan, signed the note and they held a mortgage on his property. Therefore they should be entitled to a judgment of foreclosure. This was the second time they had brought the same motion.
Carpenter alleged as a defense the bank was not the appropriate party to bring the lawsuit. The formal defense in legal terms was the bank lacked standing to bring the foreclosure action.
Justice Robert Muller who sits in Clendon County, in upstate New York, ruled that Beneficial failed to establish standing as a matter of law. They had submitted a power of attorney whereby an assignee Caliber was authorized to act as attorney in fact for Beneficial. However, Justice Muller found the alleged power of attorney was insufficient to establish Beneficial had standing to prosecute the alleged default by Carpenter. Judge Muller pointed out the affidavit submitted by Beneficial did not clarify how Wells Fargo Bank came to act as a custodian for the note. Judge Muller also pointed out Beneficial failed to provide documentation of the alleged relationship between Caliber and Beneficial. This was the basis for Judge Muller to deny the plaintiff’s application for summary judgment.