Standing Issues Raising Their Ugly Heads in New York (STILL)

Standing at Issue in N.Y. Foreclosure CasesRecent activity in New York foreclosure litigation

April 2, 2015

By LISA D. BURDEN Mortgage Daily

Standing, which is gaining ground in Florida as a successful legal defense against foreclosure, is also showing up in the latest round of cases in New York. Some lenders are seeing foreclosures dismissed because they were not able to prove that they were the assignee or had physical possession of the mortgage and underlying note. In another instance, a lender failed to lay the proper foundation in getting hearsay evidence admitted, causing the evidence to be thrown out of court. And, in another instance, not only did a lender lose on the standing issue, but the court ruled that the defendants were not properly served.

Standing Won/Standing Lost
In Citibank N.A. v. Herman, homeowners were successful in appealing a decision by the state’s supreme court against them. In fighting foreclosure, Thomas and Barbara Herman successfully argued that the lender did not have standing.

In a mortgage foreclosure action, a plaintiff has standing when it is the holder or assignee of the mortgage and the holder or assignee of the underlying note at the time the foreclosure is commenced. A lender can demonstrate that it is the holder or assignee by showing either a written assignment or physical delivery of the mortgage documents.

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Lisa D. Burden has been covering mortgage litigation and mortgage legislation for MortgageDaily.com since 2004 from the Washington, D.C., area. She holds a law degree from the University of Maryland. Lisa is the publisher of Maryland Employment Law Reporter and a freelance journalist who previously wrote forInstitutional Investor publications and the Baltimore Daily Record.

e-mail Lisa at: burdenlisa@yahoo.com

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