One of the most effective defenses to assert in a mortgage foreclosure action is the Plaintiff's lack of standing. What does lack of standing mean? Simply put, it's when the Plaintiff cannot prove that it is the holder (owner) of the note. If the Plaintiff bank commences a foreclosure action and fails to demonstrate "standing", the foreclosure action will likely be dismissed by the court. This seems like a great result, but if there is also a statute of limitations defense that can be asserted (the Plaintiff bank waited more than six years after accelerating the mortgage (declaring entire loan amount due and owing) then the statute of limitations defense can be deemed moot if the Plaintiff bank or its predecessor never had standing when the mortgage was accelerated. The statute of limitations defense only applies when the loan was accelerated by the actual owner of the note. A statute of limitations defense is a complete defense to a foreclosure action while a lack of standing defense may or may not act as a complete defense to a foreclosure action (i.e. the real owner of the note commences a new foreclosure action). Thus, when a borrower has grounds to assert both defenses, the borrower may need to make a strategic decision not to raise the standing defense. Below is a court case that essentially disallowed the statute of limitations defense when it was shown that the Plaintiff bank did not have ownership of the note at the time it allegedly accelerated the loan. Obviously, there are many intricacies and it is imperative that a borrower in foreclosure always consult with an experienced foreclosure attorney. The case mentioned above can be reviewed by clicking the following site:
Arnold M. Bottalico is an experienced Long Island, NY foreclosure attorney with over 25 years of experience, and he welcomes your questions and comments.