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THE MOTION TO AMEND THE ANSWER TO ASSERT THE LACK OF STANDING DEFENSE IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; PLAIINTIFF FAILED TO DEMONSTRATE STANDING WITH ADMISSIBLE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should have been allowed to amend the answer to assert the lack-of-standing defense and plaintiff bank did not demonstrate standing with admissible evidence:

“In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” ( …see CPLR 3025[b]). The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion … . “‘Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'”… . Here, BAC Home failed to show that any surprise or prejudice would result from the proposed amendments and did not demonstrate that the proposed amendments were palpably insufficient or patently devoid of merit … .

The defendant did not waive the defense of lack of standing by failing to interpose the defense in his original answer or in a pre-answer motion to dismiss (see RPAPL 1302-a).

Here, in order to establish its standing, BAC Home [plaintiff’s predecessor] submitted affidavits from two document execution representatives of Ditech [plaintiff], each of whom stated that review of Ditech’s business records relating to the subject mortgage loan had confirmed that BAC Home was in possession of the note at the time the action was commenced. However, neither affiant identified any particular document reviewed, nor did they attach to their respective affidavits any admissible document to show that BAC Home possessed the note prior to the commencement of this action. The affidavits also failed to show that either affiant possessed personal knowledge of whether BAC Home possessed the note prior to the commencement of the action. Under these circumstances, the affidavits constituted inadmissible hearsay and lacked any probative value (see CPLR 4518[a] …). Ditech Fin., LLC v Khan, 2020 NY Slip Op 07865, Second Dept 12-23-20

 

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