Key Takeaway
Analysis of standing requirements in foreclosure vs no-fault insurance cases, examining retroactive assignments and legal interest requirements under NY law.
Countrywide Home Loans, Inc. v Gress, 2009 NY Slip Op 08989 (2d Dept. 2009)
“Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the motion of the defendant Anthony Gress which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(3) on the ground that the plaintiff lacked standing to bring this action. In order to commence a foreclosure action, the plaintiff must have a legal or equitable interest in the subject mortgage (see Wells Fargo Bank, N.A. v Marchione,AD3d, 2009 NY Slip Op 07624 ; Katz v East-Ville Realty Co., 249 AD2d 243; Kluge v Fugazy, 145 AD2d 537, 538). “Where the plaintiff is the assignee of the mortgage and the underlying note at the time the foreclosure action was commenced, the plaintiff has standing to maintain the action” (Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 546-547; see Wells Fargo Bank, N.A. v Marchione,AD3d, 2009 NY Slip Op 07624 ; First Trust Natl. Assn. v Meisels, 234 AD2d 414). Here, it is undisputed that the subject mortgage was not assigned to the plaintiff until July 5, 2007, more than five months after the commencement of this action on January 22, 2007. Furthermore, although the July 5, 2007, assignment recited that it was effective retroactive to August 1, 2006, “a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of the assignment”
Would we have the same result in a no-fault case? Compare, Davydov v. Progressive Ins. Co., 25 Misc.3d 19 (App. Term 2d Dept. 2009).
Related Articles
- Motion seeking leave to amend the answer to seek affirmative defense of lack of standing is proper
- Standing requirements in no-fault versus traditional litigation
- Business records and assignments in standing challenges
- Proving standing without an assignment
- Assignment validity during unresolved lawsuit
Legal Update (February 2026): Standing requirements for mortgage foreclosure actions have continued to evolve since 2009, with potential changes to CPLR provisions and judicial interpretations regarding assignment timing and retroactive effectiveness. The standards for establishing legal or equitable interest in mortgage assignments may have been refined through subsequent appellate decisions and regulatory updates. Practitioners should verify current standing requirements and assignment documentation standards under prevailing law.
