You are here: / / Possession of the Note, Not the Mortgage, Confers Standing to Foreclos...

Possession of the Note, Not the Mortgage, Confers Standing to Foreclose

The Court of Appeals, in a full-fledged opinion by Judge Lippman, determined that possession of the note, not the mortgage, when the foreclosure proceedings are commenced is sufficient to confer standing upon the note-holder. ” ‘[A]ny disparity between the holder of the note and the mortgagee of record does not stand as a bar to a foreclosure action because the mortgage is not the dispositive document of title as to the mortgage loan; the holder of the note is deemed the owner of the underlying mortgage loan with standing to foreclose’… . . Accordingly, the [defendants’] argument that [plaintiff] lacked standing because it did not possess a valid and enforceable mortgage as of the commencement of this action is simply incorrect. The validity of the … assignment of the mortgage is irrelevant to [plaintiff’s]  standing;”

… [T]o have standing, it is not necessary to have possession of the mortgage at the time the action is commenced. This conclusion follows from the fact that the note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law. In the current case, the note was transferred to [plaintiff] before the commencement of the foreclosure action — that is what matters.

A transfer in full of the obligation automatically transfers the mortgage as well unless the parties agree that the transferor is to retain the mortgage (Restatement [Third] of Property [Mortgages] § 5.4, Reporter’s Note, Comment b). The [defendants] misconstrue the legal principle that “an entity with a mortgage but no note lack[s] standing to foreclose” … to also mean the opposite — that an entity with a note but no mortgage lacks standing. Once a note is transferred, however, “the mortgage passes as an incident to the note” … . Aurora Loan Servs., LLC v Taylor, 2015 NY Slip Op 04872, CtApp 6-11-15

 

You might also like
IN A DECISION POTENTIALLY AFFECTING HUNDREDS OF RECENT SUMMARY JUDGMENT RULINGS, THE COURT OF APPEALS HELD THAT A PLAINTIFF NEED NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT TO BE ENTITLED TO PARTIAL SUMMARY JUDGMENT ON LIABILITY IN NEGLIGENCE CASES, COMPARATIVE NEGLIGENCE IS PURELY A DAMAGES ISSUE (CT APP).
DEFENDANT APPEARED IN COURT WITH A SUBSTITUTE COUNSEL WHO INFORMED THE COURT ANOTHER LEGAL AID LAWYER WAS BEING ASSIGNED TO DEFENDANT’S CASE; DEFENDANT WAS NOT “WITHOUT COUNSEL” WITHIN THE MEANING OF CPL 30.30; THE ASSOCIATED SPEEDY-TRIAL TIME-PERIOD SHOULD HAVE BEEN CHARGED TO THE PEOPLE, NOT THE DEFENDANT (CT APP). ​
THE LANDLORD DEMONSTRATED THE ASSAILANT IN THIS THIRD-PARTY ASSAULT CASE WAS NOT AN INTRUDER AND PLAINTIFF WAS NOT ABLE TO RAISE A QUESTION OF FACT ON THAT ISSUE, THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED, ONE JUDGE DISSENTED (CT APP).
THE EMPLOYER’S REQUEST, AT THE HEARING, TO CROSS-EXAMINE CLAIMANT’S PHYSICIAN SHOULD HAVE BEEN GRANTED; THE LANGUAGE IN THE RELEVANT REGULATION IS MANDATORY (THIRD DEPT). ​
LABOR LAW 240(1) DOES NOT COVER INJURY TO A MECHANIC REPAIRING A VEHICLE, EVEN IF THE EVENT IS “GRAVITY-RELATED;” HERE AN ELEVATED TRAILER FELL ON PLAINTIFF (CT APP).
YOGA INSTRUCTORS NOT EMPLOYEES.
Plaintiff Failed to Raise a Question of Fact Concerning Whether the Driver of a Police Vehicle Exhibited “Reckless Disregard” for the Safety of Others In Responding to an Urgent Call—Defendant Police Officer Was Driving Against Traffic on a One-Way Street When the Collision Occurred
THE “RELIGIOUS EMPLOYER” EXEMPTION FROM MANDATED INSURANCE COVERAGE FOR MEDICALLY NECESSARY ABORTIONS DOES NOT VIOLATE THE FREE EXERCISE CLAUSE (CT APP).

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

In a Risk Level Modification Proceeding, a Defendant Is Entitled to All the... Where a Defendant Has Been Convicted of an Armed Felony or an Enumerated Sex...