“Standing to sue requires an interest in the claim at issue.” Deutsche Bank Nat. Trust Co. v. Castellanos, 15 Misc.3d 1134 (Sup. Ct. Kings Co. 2007) (citing, Caprer v. Nussbaum, 36 A.D.3d 176, 181 (2d Dept. 2006).  “‘Standing requires an inquiry into whether a litigant has “an interest … in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.’’” Matter of Montano v County Legislature of County of Suffolk, 70 A.D.3d 203, 215 (2d Dept. 2009). “A party ‘has standing to maintain an action upon alleging an injury in fact that falls within his or her zone of interest.’” Id.

If you need help establishing standing to sue, or asserting a lack of standing defense, contact us online or call Scott Lanin, Esq. at (212) 764-7250 Ext.201. We offer a free phone consult to review and evaluate your case or you can schedule an office consult.

In the context of foreclosure, believe it or not, there have been cases filed by mortgage lenders who did not even own the note (and, therefore, lacked standing to sue).  This happens in some cases where a mortgage has been assigned between lenders or internally transferred within MERS (the Mortgage Electronic Registration System).  The general rule is that a lender has no foundation in law or fact to foreclose upon a mortgage in which the Plaintiff has no legal or equitable interest.  Katz v. East-Ville Realty Co., 249A.D.2d 243 (1st Dept. 1998).  Indeed, foreclosure of a mortgage may not be brought by one who has no title to it.  Kluge v. Fugazy, 145 A.D.2d 537 (2d Dept. 1988).  because the Plaintiff has not established documentary evidence to show that it has standing. (See First Affirmative defense in answer, plaintiff’s Exhibit “3”).  The Plaintiff must prove it has possession of the original note.  It must produce this, not just a copy. Citimortgage, Inc. v. Rosenthal, 88 A.D.3d 759 (2d Dept. 2011); Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279 (2d Dept. 2011).  Where standing is not established, a foreclosure action must be dismissed.  Silverberg, 86 A.D.3d 274.