I recently opposed a lender’s motion for Summary Judgment on the grounds that it lacked standing. Here is an excerpt from that brief. <\/p>\n
The Plaintiff has not established documentary evidence to show that it has standing. The Plaintiff must prove it has possession of the original note and guarantees. Citimortgage, Inc. v. Rosenthal<\/em>, 88 A.D.3d 759 (2d Dept. 2011); Bank of N.Y. v. Silverberg<\/em>, 86 A.D.3d 274, 279 (2d Dept. 2011). The law is clear on this point: \u201cstanding to sue requires an interest in the claim at issue.\u201d Deutsche Bank Nat. Trust Co. v. Castellanos<\/em>, 15 Misc.3d 1134, (Sup. Ct. Kings Co., 2007) (citing<\/em>, Caprer v. Nussbaum,<\/em> 36 A.D.3d 176, 181 (2d Dept. 2006).<\/p>\n When an original note is not in the possession of the lender, and the lender nonetheless seeks recovery on the note, there is a risk to the borrower and guarantors that one day in the future, a holder in due course will appear and seek recovery on the same note. The potential for making a payment to the wrong party is a real risk and one that is easily eliminated, merely by having the lender meet its burden of proving that it has possession of the original note and guaranty.<\/p>\n In the mortgage foreclosure context, the Court of Appeals has recently held that a lender may satisfy this burden by an affidavit from a legal liaison with personal knowledge who has examined the note. Aurora Loan Services, LLC v. Taylor<\/em>, 25 N.Y.3d 355, 366 (2015); see also<\/em>, 71 Clinton St. Apts. LLC v. 71 Clinton Inc.<\/em>, 114 A.D.3d 583, 584 (1st Dept. 2014) (plaintiff produced the guaranty).<\/p>\n <\/p>\n If you have any legal questions or need help with a standing defense, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.<\/strong><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":" I recently opposed a lender’s motion for Summary Judgment on the grounds that it lacked standing. Here is an excerpt from that brief.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[49],"tags":[],"class_list":["post-197","post","type-post","status-publish","format-standard","hentry","category-ny-business-litigator-blog-ny-real-estate-litigator-blog"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=\/wp\/v2\/posts\/197","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=197"}],"version-history":[{"count":7,"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=\/wp\/v2\/posts\/197\/revisions"}],"predecessor-version":[{"id":479,"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=\/wp\/v2\/posts\/197\/revisions\/479"}],"wp:attachment":[{"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=197"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=197"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nybusinesslitigator.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=197"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}