January 2009 Archives

Defect in Assignment Defeats Bank's Foreclosure Action

January 19, 2009

Bank sought the appointment of a referee. Home owner did not appear to oppose the bank's motion. The court noted that the bank was not the lender but was assigned the mortgage by the lender. The assignment was dated after the foreclosure action was commenced but made effective as of a date prior to the commencement. The question before the court was whether this arrangement was sufficient to give the bank standing to pursue the foreclosure. The court decided that because that the bank had no interest in the mortgage as of the date that the foreclosure action was commenced it could not continue its foreclosure and the court was inclined to dismissed it. The court noted that date that the assignment was recorded was not the relevant issue. All that mattered was which bank held title to the mortgage as of the commencement of the lawsuit. Only that bank could sue for foreclosure.