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William A. Roper, Jr.
Raising standing as a defense in a judicial foreclosure proceeding has often been a topic within other message threads at the Forum.  Within these discussions, we have sought to reinforce that the law and procedural arguments relating to standing vary widely from state to state.

In Federal Court, standing is a Constitutional imperative under the implicit Article III restraints limiting the authority of the Courts to cases and controversies.

In several states, standing has been found to be an essential Constitutional component of subject matter jurisdiction and in some instances arises from the "open courts" provision of a state's constitution.

In other states, such as Maine, the courts have expressly held that standing is a prudential rather than a Constitutional imperative.

This week's Weisblum decision in New York opens some new defensive avenues in that state.  Foreclosure defendants would be well counselled to consult a capable and qualified New York attorney immediately if served with a foreclosure suit and those already defending ought to similarly take counsel.

The critical importance of being properly well represented is underscored by New York's unique requirement that any asserted defense of standing is an affirmative defense which must be pleaded either in a pre-answer motion OR in a defendant's original answer of first defensive pleading.

I would expressly encourage borrowers facing foreclosure in New York State to read one or more of the following New York appellate decisions:

Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 2010 NY Slip Op 08692 (NY App. 2nd Dept., 2010)
http://www.nycourts.gov/reporter/3dseries/2010/2010_08692.htm

Aames Funding Corp. v Houston, 57 AD3d 808, 2008 NYSlipOp 10105 (NY App. 2nd Dept., 2009)
http://www.nycourts.gov/reporter/3dseries/2008/2008_10105.htm

HSBC Bank, USA v Dammond, 59 AD3d 679, 2009 NY Slip Op 01445 (NY App. 2nd Dept., 2009)
http://www.nycourts.gov/reporter/3dseries/2009/2009_01445.htm

Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-243, 2007 NY Slip Op 04626 (NY App. 2nd Dept., 2007).
http://www.nycourts.gov/reporter/3dseries/2007/2007_04626.htm

Security Pac. Natl. Bank v Evans, 31 AD3d 278, 2006 NY Slip Op 05721 (NY App. 1st Dept., 2006)
http://www.nycourts.gov/reporter/3dseries/2006/2006_05721.htm

Matter of Fossella v Dinkins, 66 NY2d 162, 167-168 [1985]
http://scholar.google.com/scholar_case?case=14931653420635273145 
NOTE:  These cases are intended to be exemplary and instructive, but not exhaustive as to this topic.

*

These cases are posted to underscore the importance of obtaining representation of a qualified attorney and NOT to encourage defendants to navigate the treacherous shoals of New York law pro se.

Perhaps one or more New York litigant or attorney better familiar with New York law can supplement this post and add useful explanatory comments helping others to better understand how to make a compelling standing argument in New York.
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William A. Roper, Jr.
As an additional informative resource for New York foreclosure litigants, I have posted the appellate briefs from the Mastropaolo case.  These provide some additional insight into the appellate dbriefing process in New York State.

Frankly, I was not impressed with the briefs for either side.

Wells Fargo's Appellant's Brief

http://www.scribd.com/doc/59255181/Wells-Fargo-Bank-NA-v-Mastropaolo-Appellants-Brief-09-Mar-2006

 

Joseph Mastropaolo's Respondent's Brief

http://www.scribd.com/doc/59255181/Wells-Fargo-Bank-NA-v-Mastropaolo-Appellants-Brief-09-Mar-2006

 

Wells Fargo's Appellant's Reply Brief

http://www.scribd.com/doc/59255660/Wells-Fargo-Bank-NA-v-Mastropaolo-Appellants-Reply-Brief-03-Apr-2006


The full text of the Mastropaolo decision is now on Google Scholar:
Wells Fargo v. Mastropaolo, 837 N.Y.S.2d 247, 42 A.D.3d 239 (NY Sup. Ct. App. Div. 2nd Dept 2007)
http://scholar.google.com/scholar_case?case=12261010414697130317

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William A. Roper, Jr.
Preserving the Standing Argument

While the discussion and cases cited above underscore the critical need to raise the standing defense in the defendant's first defensive pleading, in my view even if this argument was NOT timely made, it probably should still be presented belatedly.

Although I have not researched the topic extensively, I am not persuaded that these holdings are necessarily fully supported by the New York Court of Appeals.

This is NOT to say that anyone should gamble and delay in making the standing argument.  Nor is it very likely that a trial court is going to rule in favor of a litigant presenting the argument later in the case.  But if the argument is not made at all, then the issue is not preserved for appeal

For a litigant in New York State who failed to timely present the standing argument, an examination of the cases cited in the Mastropaolo Respondent's Brief and further research might be in order.  I cannot emphasize enough that this would ba a long shot.  But if a litigant fails to make the argument at all, it is clearly waived.  While appellate courts in NY State have held that a failure to make the argument in the first defensive pleading waives the argument, if the argument is made and properly preserved, the New York Court of Appeals could always decide otherwise!
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Angelol
Just to add to Williams point, there are times that the standing issue can be raised and accepted at a later date.  Here is an excerpt for Wells v. Marchione.....

The defendants first addressed the issue of the assignment in a February 3, 2008, reply affirmation of counsel which pointed out that Wells Fargo lacked standing to bring the action. Wells Fargo argues that the Supreme Court erred in relying on this argument, as it was first raised in the defendants' reply papers. "The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion" (Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678 [2005]; see also Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]; Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Here, however, 207*207 the Supreme Court correctly recognized that the defendants' raising of the issue of standing in their reply was proper. The defendants' argument that the plaintiff lacked standing was in response to the plaintiff's submission of the assignment, presented for the first time in the papers the plaintiff submitted in opposition to the motion. Accordingly, the Supreme Court, in the exercise of its discretion, properly considered the response to the new evidence offered for the first time in the reply (see Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 382 [2006]).

Here is the google scholar link to the decision
http://scholar.google.com/scholar_case?case=1142744624508210989
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