You are here: / / DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE BANK LACKED STANDING...
, ,

DEFENDANT IN THIS FORECLOSURE ACTION DID NOT ASSERT THE BANK LACKED STANDING IN HIS ANSWER AND DID NOT OPPOSE THE BANK’S MOTION FOR SUMMARY JUDGMENT, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, RAISED THE STANDING ISSUE AND DENIED PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judge should not have, sua sponte, denied plaintiff bank’s motion for summary judgment in this foreclosure action on the ground the bank did not establish standing. The bank need not affirmatively demonstrate standing absent the defendant’s assertion that the bank lacked standing. Here the defendant did not address the bank’s standing in his answer and did not oppose the motion for summary judgment:

… [A]s a general matter, a plaintiff need not establish its standing (i.e., that it held and/or owned the note at the time the action was commenced) as an essential element of the cause of action. Rather, it is only where the plaintiff’s standing is placed in issue by the defendant that the plaintiff must shoulder the additional burden of establishing its standing to commence the action, a burden satisfied by evidence that it was the holder or assignee of the underlying note at the time the action was commenced” … .

In the present case, the defendant did not raise the issue of standing by asserting lack of standing as an affirmative defense in his answer or moving to dismiss the complaint on that ground in a pre-answer motion to dismiss … . Inasmuch as the defendant “failed to . . . raise the issue, it was inappropriate for the Supreme Court to, sua sponte, do so on the defendant[‘s] behalf” … . The issue of standing was not properly before the Supreme Court … . Deutsche Bank Natl. Trust Co. v Matzen, 2019 NY Slip Op 05386, Second Dept 7-3-19

 

You might also like
Marijuana Convictions, Standing Alone, Are Not a Sufficient Basis for Assessment of Points Against Defendant for Drug Abuse
WHERE ALLEGATIONS IN A PETITION TO MODIFY CUSTODY ARE CONTROVERTED, THE PETITION SHOULD NOT BE RULED UPON WITHOUT A HEARING (SECOND DEPT).
THIRD PARTY COMPLAINT PROPERLY DISMISSED AS CAUSING UNDUE DELAY OF THE MAIN ACTION, DISCOVERY OF POST-ACCIDENT REPAIRS OF STAIRWAY PROPERLY ORDERED IN THIS SLIP AND FALL CASE (SECOND DEPT).
MOTION TO RENEW PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS WRONGFUL DEATH ACTION SHOULD HAVE BEEN GRANTED, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED.
Summary Judgment Can Not Be Granted Based on Affidavit By Someone with No Personal Knowledge of the Facts, Even If Factual Information Not Disputed
Petition to Commence Action Against the Motor Vehicle Accident Indemnification Corporation (MVAIC) Should Not Have Been Denied In the Absence of a Hearing
THE TOWN CODE PROVISION WHICH REQUIRES A PROPERTY INSPECTION BEFORE ISSUANCE OF A RENTAL PERMIT DOES NOT VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES BECAUSE THE PROVISION ALLOWS THE LANDLORD TO HAVE THE INSPECTION DONE BY A STATE-LICENSED ENGINEER, AS OPPOSED TO THE TOWN BUILDING INSPECTOR (SECOND DEPT). ​
MOTHER’S MOTION TO AMEND FAMILY COURT’S FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS AFTER THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES NOTIFIED THE CHILD THAT THE FINDINGS DID NOT ADDRESS THE CHILD’S MEMBERSHIP IN THE MS-13 GANG SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SPECIAL FUND IS LIABLE FOR DEATH BENEFITS WHERE THE CLAIM WAS TRANSFERED TO... SUPREME COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT FINDING THAT THE VALUE...