RPAPL 1302-a was enacted on December 23, 2019 and became effective on that date. It provides as follows: “Notwithstanding the provisions of[CPLR3211(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 [RPAPL 1304(6)(a)], shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss. A defendant may not raise an objection or defense of lack of standing following a foreclosure sale, however, unless the judgment of foreclosure and sale was issued upon defendant’s default” (RPAPL 1302-a).”
This provision applies only to residential mortgage foreclosures and provides that failure to raise standing a defense in a pleading does not constitute waiver pursuant to CPLR 3211(e). The law was implemented to have cases regarding standing be resolved on the merits and not a technicality.
A recent decision GMAC Mortgage, LLC v. Coombs, AD 2nd, 2017-08030 issued November 25, 2020, sheds light on the Court’s interpretation of the law. The Court found that the statute does not impact CPLR 3018 (b), “where, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead lack of standing as an affirmative defense in the answer in order to properly raise the issue in its responsive pleading”.
– The defense of standing is exempt from waiver provisions of CPLR 3211 (e), but, it does not excuse defendant from raising the issue before it may be considered by the Court.
– The Court was not vested with the authority to raise standing on its own initiative, as the legislature did not go that far in its change to the law.
As applied to the case, the Court found that defendant’s answer be deemed amended to include lack of standing in the opposition to plaintiff’s motion for summary judgment, as plaintiff had the duty of establishing standing in order to be entitled to summary judgment. Here, this was brought up in the opposition, therefore, plaintiff in the reply provided that they had physical possession of the note and mortgage prior to commencement. While the defendant did make allegations regarding the validity of the assignment, the Court found that it was of no relevance as standing based on the note.
Therefore, the Court agreed with the Supreme Court’s determination to grant leave to reargue, and upon re-argument grant plaintiff’s motion for summary judgment.
If you have any questions regarding this case, please contact Deborah Gallo, Esq., Director of Operations at dgallo@friedmanvartolo.com.
