Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
Articles |The FORUM |Law Library |Videos | Fraudsters & Co. |File Complaints |How they STEAL |Search MSFraud |Contact Us
Unregistered

Recently, there was some discussion in another thread about the necessity and desirability of a defendant filing a motion for defensive summary judgment.  A New York appellate case decided this week seems to afford some more support for the proposition that a defendant can sometimes benefit from a motion for defensive summary judgment.  The case is HSBC Bank USA v. Hernandez:

 

HSBC Bank USA v. Hernandez, 2012 NY Slip Op 01434 (N.Y. App. 2nd Dept. 2012)

http://www.nycourts.gov/reporter/3dseries/2012/2012_01434.htm

 

 

As I read the decision, the plaintiff failed to prove its standing.  But the plaintiff's failure to prove standing in its own motion for summary judgment does not inter alia entitle a defendant to a dismissal, absent an application to the court for a judgment via a summary judgment procedure.

 

This actually seems to be a reasonable result.  It might be otherwise if the proof presented affirmatively showed a lack of standing.  The absence of proof of standing is something different.

 

Even where a plaintiff fails to demonstrate standing in respect of its own motion, further evidence of standing might still be adduced either in a response to a defensive motion for summary judgment or at trial.

 

If the plaintiff's inability to show standing is real, this might still be corrected by a future defensive motion for summary judgment (or at trial).  If the plaintiff's inability was merely owing to an evidentiary deficiency at the plaintiff's summary judgment proceeding, the defendant will wish that it had filed a cross-motion to take advantage of the plaintiff's evidentiary problems while the plaintiff was still disorganized and incompetent! 

  

Quote 0 0
Unregistered
Would a defensive summary judgment mean the case would be decided on its merits rather than dismissed without prejudice? 
Quote 0 0
Unregistered
Sorry for asking the question before reading the decision. I saw that it was still dismissed without prejudice, even for the defendant's summary judgment. 
Quote 0 0
Write a reply...