The Note & NY foreclosure defenses
Just as I posted a blog yesterday on foreclosure, the Supreme Court, Kings County just came down with a decision that denied a banks motion for Summary Judgment in a foreclosure action. In the present case, CitiMortgage v. Williamson, 30075/09, NYLJ 1202635577540, at *1 (Sup., KI, Decided December 9, 2013), Citibank moved for Summary Judgment (essentially saying this is a pretty cut and dry foreclosure action.) The Defendants, who I believe were represented Pro Bono, by Bed Stuy Community Legal Services, essentially brought up several defenses. The most common foreclosure defense is that CitiMortgage is not the holder of the Note because the assignment was defective. Why was the assignment defective? Because, according to the Defendants (and the Court), the affidavit that came with it came from out of state, and was not accompanied by the proper Certificate of Conformity. The Court sides with the Defendants and states:
Significantly, this Court observes that the instant caption states that Citimortgage, Inc. is the successor by merger to Citifinancial Mortgage Company, Inc. However, Plaintiff does not submit any documentation, which substantiates that Citimortgage, Inc. is the successor, and has standing to commence this action. Plaintiff has also not established that it is the holder of the note and mortgage by way of physical delivery, as the allonge to the note is 1) undated, and 2) on a separate, unnumbered page that is not firmly affixed to the note (see UCC 3-202; U.S. Bank Natl. Assn. v. Guy, 2013 NY Slip Op 51532(U) [Sup Ct, Kings Cty 2013]). Thus, this Court determines that Plaintiff has not met its prima facie case.
The Court goes on to state that because the affidavit was defective, the banks motion for Summary Judgment is denied.
So, what does all this actually mean? It means
(1) Citibank-LOL (1) no matter what, you should always, always, always explore every single defense to a foreclosure action you possibly can; and (2) that many Courts will come down on banks that have not followed the rules.
This, of course, is simply a Motion for Summary Judgment, and nothing precludes the Bank from moving forward and ultimately prevailing at trial. However, this may prove to be a very stick situation for the Bank if they can’t come up with the proper paperwork to establish that they are the actual, legitimate holders of the Note and Mortgage.