You are here: / / Neither Plaintiff Nor Intervenor Bank Had Standing to Determine Validity...

Neither Plaintiff Nor Intervenor Bank Had Standing to Determine Validity of Mortgage

The Second Department determined neither the original plaintiff, nor the bank which attempted to intervene in the action, had standing in an action to determine the validity of a mortgage.  Plaintiff was not the mortgagee and the bank submitted no proof that the note was physically delivered to it, a necessary element of a valid assignment:

The plaintiff failed to establish that either it, or the party it wished to substitute as the plaintiff, had standing to maintain the action. Standing requires an inquiry into whether a litigant has “an interest . . . in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request” … . “In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced” … . The instant action, although not an action to foreclose the subject mortgage, was brought on behalf of the purported mortgagee, inter alia, for a judgment declaring the validity of the subject mortgage. The documentary evidence submitted by the appellant in support of her motion to dismiss the complaint established conclusively that the plaintiff was not the mortgagee, a fact which the plaintiff conceded. …

The plaintiff sought to defeat the appellant’s motion to dismiss the complaint by cross-moving, in effect, to amend the complaint to substitute U.S. Bank as the plaintiff. “[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense” (…CPLR 1002[a], 3025[b]). Here, however, the plaintiff failed to show that U.S. Bank had standing and could have asserted the claim in the first instance. The plaintiff submitted only a document executed by MERS, as nominee for the lender Opteum, purporting to assign the mortgage and note to U.S. Bank. To establish the validity of such an assignment, evidence must be submitted establishing that the note was either physically delivered to MERS or assigned to MERS by the lender prior to the commencement of the action … . The plaintiff failed to submit any such evidence. Midland Mtge Co v Imtiax, 2013 NY Slip Op 06550, 2nd Dept 10-9-13

 

You might also like
Mistaken Classification of Property Resulting In a Much Too Large Tax Bill Was a “Clerical Error” Which Could Be Corrected by the City Department of Finance—No Need for Property Owner to Commence a Tax Certiorari Proceeding
EVEN PHYSICALLY SMALL DEFECTS, IN COMBINATION WITH OTHER FACTORS, CAN CONSTITUTE A DANGEROUS CONDITION, DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
QUESTION OF FACT WHETHER DEFENDANT’S DOUBLE-PARKED TRUCK MERELY FURNISHED THE OCCASION FOR THE MOTORCYCLE ACCIDENT OR WAS A PROXIMATE CAUSE OF THE ACCIDENT; PLAINTIFF FLIPPED OVER THE MOTORCYCLE BRAKING TO AVOID COLLIDING WITH THE TRUCK (SECOND DEPT).
THE 90-DAY NOTICE WAS DEFECTIVE; THEREFORE THE ACTION SHOULD NOT HAVE BEEN DISMISSED PURSUANT TO CPLR 3216 (SECOND DEPT).
PLAINTIFFS’ ATTORNEY PROPERLY WITHDREW ON IRRECONCILABLE DIFFERENCES GROUNDS AND WAS ENTITLED TO 95% OF THE CONTINGENCY FEE DESPITE THE FAILURE TO SUBMIT TIME RECORDS (SECOND DEPT).
Inadequate Excuse for Delay In Answering Complaint—Motion to Vacate Default Judgment Should Have Been Denied
MOTION TO AMEND THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, THE NOTICE ADDED A NEW THEORY OF CAUSATION (SECOND DEPT).
LINEUP IDENTIFICATION WAS UNDULY SUGGESTIVE, CONVICTION REVERSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege... Concept of an Equitable Mortgage Explained, Affirmative Defenses Left Out of...