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[NYSC] Standing is a threshold issue, pathway to the courthouse is blocked: WELLS FARGO v. CAMPBELL

[NYSC] Standing is a threshold issue, pathway to the courthouse is blocked: WELLS FARGO v. CAMPBELL


NEW YORK STATE SUPREME COURT – QUEENS COUNTY
Present:
Honorable JAMES J. GOLIA
Justice
Index No: 13555/07

WELLS FARGO BANK, N.A., D/B/A
AMERICA’S SERVICING COMPANY
,

against

ROXANNE CAMPBELL, AMERICA’S SERVICING
COMPANY, MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. AS NOMINEE
FOR WILMINGTON FINANCE, INC., NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD,
NEW YORK CITY PARKING VIOLATIONS
BUREAU, NEW YORK CITY TRANSIT
ADJUDICATION BUREAU, MR. KANE,

Excerpt:

Standing is a threshold issue. If standing is denied, the pathway to the courthouse is blocked.(Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801A[ 2003]) Therefore, the court first considers the issue of plaintiff’s standing.

A plaintiff has standing to maintain an action upon alleging an injury in fact that falls within its zone of interest” (Silver v Pataki, 96 NY2d 532, 539 [2001]). The requirement that a litigant asserting a claim have an injury in fact — an actual stake in the matter being adjudicated — ensures that a person seeking judicial review has some concrete interest in prosecuting the action, which casts the dispute in a form capable of judicial resolution (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772, 573 N.E.2d 1034, 570 NYS2d 778 [1991]).

To have standing in an action for foreclosure of a mortgage the action must be brought by one who has title to it (Kluge v Fugazy, 145 AD2d 537 [2d Dept 1988]) and an assignee of a mortgage does not have standing unless the assignment is complete at the time the action is commenced. (See U.S. Bank, N.A. v Collymore, 68 AD3d 752 [2d Dept 2009]; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709 [2d Dept 2009]). A retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action commenced prior to the execution of an assignment.” (Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 210, 887 N.Y.S.2d 615 [2d Dept 2009]).

[ipaper docId=39561306 access_key=key-of37m6lhm801q1hn0at height=600 width=600 /]

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