Elements lender must establish in a foreclosure case.

Usually the suing party is the lender, servicer, company or entity stating that they own the note and are the party seeking foreclosure against the homeowner.  The lender is the plaintiff and the homeowner/borrower is the defendant in the case.

The plaintiff must establish that:

1) Establish the existence of the mortgage and note;

2) Prove it was the owner or holder of the note and mortgage at the time that it commenced the foreclosure action;

3) Prove that the defendant defaulted.

A plaintiff may prove ownership of the note by demonstrating that it was the assignee of the mortgage and the underlying note or the assignee of the mortgage and by endorsement the holder of the note at the time that the action was commenced.

This is called Standing.  Standing requires an inquiry into whether the plaintiff litigant has an interest in the claim at issue in the lawsuit that the law will recognize as sufficient predicate for determining the issue at the litigant’s request. Where standing is raised as an issue by a defendant’s answer, the plaintiff must prove it has standing if it is to be entitled to relief.  Standing is an aspect of justiciability which, if challenged, must be considered at the outset of any case.  Standing is critical to move forward in the case and is a threshold question.  If standing is denied by the Court, the pathyway to sue is blocked, and therefore the case cannot go forward. 

A foreclosure of a mortgage cannot be brought by one who has no title to it, and an assignee of such mortgage does not have standing to sue unless the assignment is legally complete at the time the action was initiated.

The Court is the decider of whether or not standing exists when the suit was filed as a matter of law. Without the above elements, a plaintiff cannot proceed in a foreclosure action. 

If you or anyone you know is a defendant in a foreclosure lawsuit, be fully informed about your legal rights.  The more knowledge you have the more leverage you will gain in trying to work out a mutually agreeable resolution.  Without knowing your legal rights, the lender may skip some steps, and without calling them on it, you may waive crucial rights in defending your home. 

Should you have any questions in a New York foreclosure, do no hesitate to call

Eran D. Grossman, Esq. at 212-227-6755.