A foreclosure lawsuit was brought before Justice Marguerite Grays in the Supreme Court of Queens County, New York. In the case, US Bank National Association v. Yanez, et al., the plaintiff bank sought to foreclose on a mortgage given to Sonia Yanez. The bank claimed it was the holder of the note and mortgage pursuant to an assignment. The complaint alleged that Yanez had defaulted on the debt. It further claimed that, pursuant to the mortgage documents, the bank had the right to accelerate the mortgage debt.
Yanez denied the allegations in the complaint and submitted the affirmative defense that the bank lacked standing to bring the foreclosure lawsuit. The bank claimed the note had been delivered and endorsed by its predecessor-in-interest. The bank further claimed that it was in possession of the note and mortgage at the time it filed the lawsuit.
Justice Grays found the bank had submitted two different copies of the note, one with an undated endorsement and the second with no endorsement. Grays held there was a triable issue of fact as to whether the bank possessed the original note at the time the lawsuit was brought.
The bank submitted a mortgage pooling and servicing agreement to the court, but Grays found it failed to show the existence of a written assignment of the note or prove that delivery of the note occurred prior to the lawsuit. She therefore held that the bank failed to establish that it was entitled to bring the foreclosure action. On that ground, Grays dismissed the bank’s motion for summary judgment.
In a foreclosure suit, you and your attorney should carefully review the bank’s documentation regarding ownership of the note and mortgage and make sure the bank’s evidence meets the required legal standard.
Elliot Schlissel is an attorney licensed to practice in the State of New York. His law firm, with offices in Nassau County, Suffolk County and Queens County, practices in family law & divorce, criminal law, personal injury matters, bankruptcy, wills & trusts, and foreclosure defense.