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DEFENDANT NEVER PHYSICALLY POSSESSED THE NOTE UNDERLYING THE MORTGAGE AND WAS NEVER ASSIGNED THE NOTE; THEREFORE DEFENDANT DOES NOT HAVE STANDING TO FORECLOSE ON THE MORTGAGE; AN ATTORNEY’S FAILURE TO APPEAR AT A FULLY BRIEFED MOTION ARGUMENT IS NOT A DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant does not own the note underlying the mortgage and therefore has no right to foreclose. The Fourth Department noted that an attorney’s failure to appear at a full briefed motion argument does not constitute a default:

… [D]efendant lacks noteholder standing because the promissory note upon which defendant relies is neither endorsed in blank nor specially endorsed to defendant … . … [E]ven had the note been endorsed in blank or specially endorsed to defendant, defendant’s admitted failure to physically possess the original note would independently preclude it from foreclosing as a noteholder … . …

Nor does defendant have assignee standing. The affidavits submitted on defendant’s behalf do not aver that the subject note was ever assigned to defendant … . …

… [A]n action to quiet title pursuant to RPAPL article 15 is a proper procedural vehicle for determining defendant’s standing to foreclose (see RPAPL 1501 [1], [5] … ). Hummel v Cilici, LLC, 2022 NY Slip Op 01690, Fourth Dept 3-11-22

Practice Point: An attorney’s failure to appear at a fully briefed motion argument is not a default.

Practice Point: A party who never physically possessed the note underlying the mortgage does not have standing to foreclose.

 

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