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EVIDENCE THAT PLAINTIFF DID NOT HAVE STANDING TO FORECLOSE, SUBMITTED AFTER A JURY TRIAL AND JUDGMENT FOR THE PLAINTIFF, WARRANTED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined defendant’s evidence that plaintiff did not have standing to foreclose, submitted after a jury trial and a judgment of foreclosure, raised a question of fact requiring a new trial:

The defendant cross-moved … pursuant to CPLR 4404(b) … for judgment … dismissing the complaint insofar as asserted against him, submitting evidence that Fannie Mae purchased the note subsequent to the assignment of the note to the plaintiff and prior to the commencement of this action. …

“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident” … . …

The evidence submitted by the defendant raised issues of fact warranting a new trial on the issue of standing, and the plaintiff does not contend that it was improper for the defendant to submit this evidence for the first time after the conclusion of the original trial … . Wendover Fin. Servs. Corp. v Steinman, 2024 NY Slip Op 04416, Second Dept 9-11-24

Practice Point: Here evidence submitted by defendant, after a jury trial and judgment for the plaintiff, raised a question of fact about whether plaintiff had standing to foreclose requiring a new trial. Plaintiff did not object to the post-trial submission.

 

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