Editor: David Reiss
Brooklyn Law School

January 12, 2013

New Jersey Appellate Division Finds Bank of New York Does Not Have Standing to Prosecute Foreclosure Action

By Joseph Kelly

In Bank of New York As Tr. For Certificate Holders CWABS, Inc. v. Cupo, A-1212-10T2, 2012 WL 611849 (N.J. Super. Ct. App. Div. Feb. 28, 2012) the Appellate Division of the Superior Court of New Jersey ruled in favor of homeowner Alexander Cupo’s motion challenging the propriety of Bank of New York’s foreclosure. In reversing the trial court, the Appellate Division cited Deutsche Bank Nat’l Trust Co. v. Mitchell for the prevailing standard in New Jersey that “a foreclosing mortgagee must demonstrate that it had the legal authority to enforce the promissory note at the time it filed the original complaint for foreclosure.” Here, because MERS, as nominee for the original lender (Countrywide) had assigned the promissory note and mortgage to plaintiff (Bank of New York) thirty-nine days after the complaint was filed, the court found Bank of New York did not have standing as an assignee to prosecute this foreclosure action. However, the court also remanded for purposes of determining whether there was an alternative basis to achieve standing pursuant to N.J.S.A. 12A:3-301.

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