Practice point: A plaintiff has standing
where it is the holder or assignee of both the subject mortgage and of
the underlying note at the time the action is commenced. 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. Where a mortgage is represented by a bond or other instrument,
an assignment of the mortgage without assignment of the underlying note
or bond is a nullity.
Student note: Where the defendant puts standing into issue, the plaintiff must prove its standing in order
to be entitled to relief.
Case: Bank of N.Y. Mellon v. Gales, NY Slip Op 02402 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: A time-barred fraud claim.
