Practice point: In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage. If the defendant puts standing into issue, a plaintiff must prove its standing.
The Appellate Division determined that the appellant did not waive the issue of standing. Although the appellant's answer did not raise standing as a separate defense, a fair reading of the pleading reveals that it contained language which denied that the plaintiff was the owner and holder of the note and mortgage being foreclosed. Under such circumstances, the appellant was not required to expressly plead lack of standing as a defense, pursuant to CPLR 3211[e].
Student note: In a mortgage foreclosure action, a plaintiff establishes standing by demonstrating that, at the time the action is commenced, it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note.
Case: Bank of Am., N.A. v. Paulsen, NY Slip Op 01597 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Granting an extension of time, pursuant to CPLR 2204.
