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Standing – the Defense Applied Outside the No-Fault Arena

Wells Fargo Bank, N.A. v Marchione, 2009 NY Slip Op 07624 (2d Dept. 2009)

There seems to be an air of schizophrenia when the word “standing” finds its way in the Appellate Division reporter.  As I reported earlier, outside of the realm of no-fault practice, the “defense” of standing must be preserved through an affirmative defense in the answer or through a pre-answer motion.

In the newest Opinion and Order on this issue, the Appellate Division discusses the contours of the standing issue in the context of a foreclosure case.  The first line of Wells Fargo represents the issue, the holding and the rule of law, as set forth herein:  “The issue presented on this appeal is whether an assignee of a note and mortgage has standing to commence a foreclosure action prior to the date of the execution of the assignment. We hold that an assignee in such a case has no standing.”

Compare the holding in Wells Fargo to the issue of standing in the realm of no-fault litigation.  In no-fault practice, the failure to issue proper and timely additional verification requests, during the claims stage, will waive the standing defense.  As we all know, had this fact pattern occurred in the context of no-fault litigation, then the complaint would not have been dismissed.  This is true even if the affirmative defense of lack of standing is preserved in the answer.

While this case represents nothing new or earth shattering, it is just another example at how a uniform concept is interpreted in a less than uniform fashion.