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...]
November 18, 2015 By
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.