Key Takeaway
New York's RPAPL 1302-a prevents homeowners from waiving standing defenses in foreclosure cases, even if not raised initially—a game-changing protection for defendants.
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
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.
