Lack of Standing Defense in Foreclosure Lawsuits
When a financial institution brings a foreclosure lawsuit, they have a legal obligation to prove to the court they are the rightful holder of the mortgage and note they are suing on. Mortgages and notes are standardized documents. In most situations a variety of financial institutions and servicing organizations will handle the mortgage and note prior to the financial institution who in the end brings the foreclosure lawsuit must show each of the assignments, starting with the financial institution who made the loan, was properly executed and the requisite documents were filed in the County Clerk’s office. Over and above that, the financial institution who brings the foreclosure lawsuit must have in its hands at the time the lawsuit is initiated, the original mortgage and note.
Bank Assignments
Sometimes mortgages have traveled through many different banks and servicers’ hands before a foreclosure lawsuit is brought against the homeowners. The proof of the ownership by the financial institution who brings the lawsuit revolves around the chain of assignments from one previous owner to the next. Sometimes the actual paperwork on the assignments are never completed or are not correctly done. The documentation of the assignments may only exist within the computers of the financial institutions. That is insufficient. The party bringing the foreclosure lawsuit must have the original note and mortgage and be able to show that every step of the way, between the original bank and the bank bringing the foreclosure, involved a proper assignment which was properly filed and executed by the appropriate parties.
Homeowners have been successful in dozens of lawsuits in the Metropolitan New York area in showing the financial institution bringing the foreclosure lawsuit was not a proper party due to a defect in the assignments. This causes the lawsuit to be dismissed! The theory behind the assignments is the party bringing the lawsuit has standing to sue under the terms of a contract (the mortgage and note are contracts). The initiating party in the lawsuit must have a documented ownership interest in the contract. In addition, the party having the ownership interest in the contract must have suffered some damages (the non-payment of the mortgage).
Presenting the Lack of Standing Issue to the Court
To start with, the lack of standing must be plead as an affirmative defense in the homeowners’ Answer. The homeowner can thereafter during the discovery portion of the case demand documentation from the financial institution of the chain of assignments which led them to bring this lawsuit. If the bank cannot produce documentation of this chain of assignments the homeowner can make a motion to dismiss under New York Civil Practice Law and Rules section 3211. The homeowner, in their moving papers to dismiss the lawsuit, must make the argument the financial institution bringing the lawsuit is not a valid holder of the note and mortgage and/or there is an issue concerning one or more of the assignments in the chain of assignments.
Lack of Standing Arguments
Many homeowners who come into my office have researched on the internet and through other sources the issue of standing and seek to submit a lack of standing argument to the court. However, the technicalities of bringing a motion to dismiss under section 3211 of the New York Civil Practice Law and Rules and the manner in which the motion needs to be presented to the court generally requires an expertise which is beyond the ability of most homeowners. The best way to assert and/or prove a lack of standing argument for the purpose of getting a foreclosure case dismissed is to hire an experienced foreclosure defense lawyer to make these arguments for you.
