No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
Standing – the Defense Applied Outside the No-Fault Arena
Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (2d Dept. 2009)
There seems to be an air of schizophrenia when the word “standing” finds its way in the Appellate Division reporter. As I reported earlier, outside of the realm of no-fault practice, the “defense” of standing must be preserved through an affirmative defense in the answer or through a pre-answer motion.
In the newest Opinion and Order on this issue, the Appellate Division discusses the contours of the standing issue in the context of a foreclosure case. The first line of Wells Fargo represents the issue, the holding and the rule of law, as set forth herein: “The issue presented on this appeal is whether an assignee of a note and mortgage has standing to commence a foreclosure action prior to the date of the execution of the assignment. We hold that an assignee in such a case has no standing.”
Compare the holding in Wells Fargo to the issue of standing in the realm of no-fault litigation. In no-fault practice, the failure to issue proper and timely additional verification requests, during the claims stage, will waive the standing defense. As we all know, had this fact pattern occurred in the context of no-fault litigation, then the complaint would not have been dismissed. This is true even if the affirmative defense of lack of standing is preserved in the answer.
While this case represents nothing new or earth shattering, it is just another example at how a uniform concept is interpreted in a less than uniform fashion.
2 Responses to “Standing – the Defense Applied Outside the No-Fault Arena”
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I don’t think there is any confusion outside of no-fault. Standing is something you have, you don’t have, or you waive by not adding it as an affirmative defense. In the Appellate Division and even at the Court of Appeals this is clear. I think I just repeated what you said. Crap.
The Court of Appeals may start changing the rules because of no-fault. If they made one exception, who’s to say that they won’t make another.
That issue, the one with the mortgage assignment, is a recurring issue all over the Country. Did you notice the Court’s discussion of the verification?
From what I understand, most of the lenders use MERS as their nominating agent in order to shuffle the electronic “paper” around. However, when it comes time to bring a foreclosure action, there are no paper assignments. You know, I almost wrote “assignment of benefits”. Good lord. Hence, this case.
But, you are correct that this issue is reoccurring in the foreclosure front. I went to a Florida CLE 3 years ago (because I needed to take a bunch of live Florida CLER credits) and they had a speaker who was going on ad naueseum about how this issue would proliferate in the coming years. Amazing how this woman was so on the ball. Next to 5102(d) motions and criminal cases, these case are consistently reoccurring in the realm of Second Department jurisprudence.
By the way, why can’t I watch the New Orleans-Miami game? Do I need to go to a bar that has the Direct TV “we are not bound by NFL contractual restrictions” package?
JT