Standing (favorite statutes)

New York’s Game-Changing Standing Defense Protection in Foreclosure Cases

New York’s Real Property Actions and Proceedings Law has undergone significant changes in recent years, particularly regarding foreclosure proceedings. One of the most impactful developments came in 2019 with the addition of RPAPL 1302-a, which fundamentally altered how standing defenses work in home loan foreclosure cases.

Standing—the legal requirement that a plaintiff must have the right to bring a lawsuit—has long been a crucial defense in foreclosure proceedings. Traditionally, if a defendant failed to raise a standing defense in their initial response, they would lose the opportunity to challenge the plaintiff’s right to foreclose. This new statute changes that dynamic entirely, providing homeowners with enhanced protection against improperly filed foreclosure actions.

The 2021 case US Bank N.A. v Blake-Hovanec demonstrates how courts are applying this protective legislation in practice, showing its real-world impact on foreclosure defense strategies.

Jason Tenenbaum’s Analysis:

US Bank N.A. v Blake-Hovanec, 2021 NY Slip Op 00893 (2d Dept. 2021)

“Contrary to the plaintiff’s contention, the defendant did not waive the affirmative defense of lack of standing. RPAPL 1302-a (as added by L 2019, ch 739, § 1; eff Dec. 23, 2019) provides that, notwithstanding the provisions of CPLR 3211(e), “any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.”

This has to be one of my favorite statutes

Legal Significance

RPAPL 1302-a fundamentally alters waiver doctrine for standing defenses in home loan foreclosure cases. Under traditional CPLR 3211(e) principles, affirmative defenses not raised in responsive pleadings or pre-answer motions are deemed waived. This waiver rule serves efficiency by requiring parties to raise defenses early, allowing plaintiffs to address them and preventing surprise late-stage defenses that could have been raised earlier.

However, the Legislature determined that standing defenses in home loan foreclosures warrant different treatment. The 2019 statute creates an explicit exception to CPLR 3211(e), providing that standing objections or defenses “shall not be waived” even when defendants fail to raise them initially. This non-waivability reflects policy judgments that foreclosure actions should only proceed when brought by parties with legitimate authority to foreclose.

The statute’s limitation to “home loan” foreclosures demonstrates legislative focus on protecting residential homeowners rather than commercial borrowers. This protection acknowledges that homeowners—often proceeding pro se or with limited legal resources—may not recognize standing issues initially. By making standing non-waivable, the Legislature ensures courts can address standing challenges regardless of defendants’ procedural missteps.

US Bank N.A. v Blake-Hovanec illustrates this protection in practice. When the plaintiff contended defendant waived standing by not raising it initially, the Second Department rejected this argument based on RPAPL 1302-a. The statute’s clear language overrode traditional waiver principles, permitting defendant to challenge standing despite procedural default.

The decision also demonstrates how courts apply statutes with prospective and retroactive effect considerations. RPAPL 1302-a became effective December 23, 2019, and applies to cases pending on or after that date. Defendants who previously might have been found to have waived standing defenses gained new protection once the statute took effect.

Practical Implications

For homeowner defendants, RPAPL 1302-a provides crucial protection against waiver traps. Even when defendants file answers without asserting standing defenses—or file no answer at all—they can later challenge plaintiffs’ standing to foreclose. This protection is particularly valuable for pro se defendants who may not understand standing concepts or recognize when plaintiffs lack proper authorization to pursue foreclosure.

The statute does not eliminate the need for timely responses to foreclosure actions. Defendants who fail to answer still face default judgments on other grounds. However, even after default, defendants can challenge standing through motions to vacate or on appeal. Courts must address standing regardless of whether defendants raised it procedurally correctly.

For foreclosure plaintiffs, the statute creates ongoing standing vulnerability. Even after proceeding through litigation, obtaining favorable rulings, or reaching summary judgment, plaintiffs face potential standing challenges. This requires plaintiffs to ensure proper standing exists from the outset and to maintain documentation supporting standing throughout the litigation.

The decision also affects settlement negotiations. Defendants can raise standing challenges even late in litigation, potentially providing leverage in settlement discussions. Plaintiffs uncertain about their standing may offer better settlement terms to avoid judicial scrutiny of standing issues.

For foreclosure defense attorneys, RPAPL 1302-a provides a powerful tool that remains available throughout litigation. Even when other defenses have been waived or resolved adversely, standing challenges remain viable. Attorneys should investigate standing issues in all home loan foreclosures, recognizing that standing challenges can be raised at any stage including on appeal.

Key Takeaway

RPAPL 1302-a represents a significant victory for homeowner rights in New York. Unlike other affirmative defenses that must be raised early or risk waiver, standing challenges in home loan foreclosures can now be raised at any point in the litigation. This ensures that only plaintiffs with legitimate legal authority can pursue foreclosure actions, regardless of procedural missteps by defendants or their attorneys. The statute’s explicit override of CPLR 3211(e) waiver provisions demonstrates legislative determination that foreclosure standing is too fundamental to allow waiver, protecting homeowners—particularly pro se defendants—from losing their homes to parties lacking legal authority to foreclose.

Related Articles

• Understanding standing requirements in civil litigation
• Foreclosure defense strategies in New York
• CPLR 3211 motion practice and affirmative defenses
• Waiver doctrine and preserving defenses
• New York real property foreclosure procedures