Justice David Schmidt, sitting in the Supreme Court Foreclosure Part in Kings County recently had a case before him concerning a foreclosure on a home where the defendant submitted a lack of standing defense. The foreclosure action was brought by US Bank as the trustee for Morgan Stanley Mortgage Loan Trust (hereinafter referred to as “MSMLT”). During the course of this proceeding, the attorneys for MSMLT brought a summary judgment motion against the defendants. (A summary judgment motion is a motion that alleges there are no questions of fact concerning the issues in the case and therefore the moving party should be entitled to judgment without the necessity of having the case go to trial).
The defendants submitted seven affirmative defenses in their answer. One of those affirmative defenses alleged the bank lacked the standing to bring this foreclosure lawsuit.
Lack of Standing
MSMLT argued that the defendants defaulted on the note due to the failure to make timely mortgage payments. The defendants had not made mortgage payments for a period of two years before MSMLT had started the lawsuit to foreclose on the their home. MSMLT alleged in their pleadings they were the holder of the note and mortgage which had been endorsed in blank and delivered to them before the lawsuit was initiated.
Justice David Schmidt denied the plaintiff’s application for summary judgment. He took the position the attorneys for MSMLT had failed to offer evidence of their standing to bring the foreclosure proceeding against the defendants. They failed to prove they had the note at the time of the commencement of the action. Judge Schmidt found there were triable issues of fact regarding delivery of the note from the original lender and endorser, Hemisphere National Bank, to MSMLT. The court further stated in its decision MSMLT made conclusory statements it had “continuous possession” of the note. These conclusory statements were not sufficient to establish standing in the eyes of the judge. The judge ruled plaintiff’s allegations that equated the possession of the note with the Uniform Commercial Code’s requisite delivery requirements was not convincing and therefore he denied the motion.
Conclusion
In each and every foreclosure lawsuit, the attorneys for the homeowners should allege a lack of standing defense. Our office has had numerous cases where banks have been unable to successfully foreclose on our client’s property due to their failure to prove they had standing to initiate the foreclosure lawsuit.
Elliot S. Schlissel is one of the leading foreclosure lawyers in the Metropolitan New York area having helped scores of his clients to stay in their homes and fight foreclosure lawsuits.
JP Morgan Chase had initiated a 
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