NEW YORK SUPREME COURT – QUEENS COUNTY
EMC MORTGAGE CORP.,
In order to commence a foreclosure action, plaintiff must have a legal and equitable interest in the subject mortgage (Wells Fargo Bank v Machine 69 AD3rd 204). Here, the subject mortgage was not assigned until October 2, 2007, which was after the action was commenced on October 1, 2007. A retroactive assignment to September 25, 2007 cannot be used to confer standing upon the foreclosure action commenced prior to the execution of the assignment. (Countrywide Home Loans v Giess 68 AD3rd 709).
The plaintiff, not being the holder of the assignment at the time the action was commenced, it did not have standing to commence this action. Accordingly, the Court vacates the Judgment of Foreclosure and Sale, which the County Clerks minutes indicate was executed on April 9, 2009 and dismisses the complaint.
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