191 A.D.3d 37
N.Y. App. Div.2020Background
- In Feb 2007 Coombs executed a $419,225 note secured by a Brooklyn residential mortgage; GMAC Mortgage, LLC commenced foreclosure in Nov 2008.
- Coombs filed a verified answer but did not plead lack of standing as an affirmative defense.
- Coombs moved to dismiss (raising standing) and GMAC moved for summary judgment; both motions were denied in Dec 2013. GMAC later obtained leave to reargue and, on reargument, the Supreme Court (Kings County) granted summary judgment for GMAC, finding Coombs waived the standing defense by not pleading it.
- The Appellate Division considered whether RPAPL 1302-a (effective Dec 23, 2019) altered waiver rules for standing in residential mortgage foreclosures and whether Coombs could amend his answer to assert lack of standing.
- The court held RPAPL 1302-a prevents waiver of standing under CPLR 3211(e) for covered home-loan foreclosures but does not let courts raise standing sua sponte or change other pleading rules; here the court should have allowed amendment (or deemed the answer amended), but GMAC nonetheless proved standing by showing physical possession of the note before suit.
- Because GMAC established prima facie standing and Coombs failed to raise a triable issue, the Appellate Division affirmed the grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to plead lack of standing in answer waived the defense and precluded later assertion | GMAC: defense waived under CPLR 3211(e)/CPLR 3018(b); defendant cannot raise it after failing to plead | Coombs: RPAPL 1302-a and CPLR 3025(b) allow belated assertion; court should permit amendment | Court: RPAPL 1302-a prevents waiver under CPLR 3211(e) for covered home-loan foreclosures; leave to amend (or deeming amended) should be allowed under CPLR 3025(b) here |
| Effect of RPAPL 1302-a on standing and waiver doctrine | GMAC: statute does not displace existing pleading burdens beyond CPLR 3211(e) | Coombs: statute preserves right to raise standing even if omitted earlier | Court: RPAPL 1302-a bars CPLR 3211(e)-based waiver of standing in home-loan foreclosures but does not let courts raise standing sua sponte or impose new pleading elements |
| Whether court may raise standing sua sponte | GMAC: court may consider standing at any time | Coombs: court should not sua sponte raise standing; defendant must raise it | Court: court should not raise lack of standing on its own; defendant must assert the defense (but RPAPL 1302-a preserves defendant's ability to raise it even if omitted) |
| Whether GMAC established standing to win summary judgment despite amendment | GMAC: proved physical possession of note before suit; therefore standing established | Coombs: challenged validity of assignments and mortgage assignments to undermine standing | Held: GMAC established prima facie standing by possession; assignment arguments irrelevant where plaintiff relied on possession; summary judgment affirmed |
Key Cases Cited
- Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239 (App. Div. 2007) (treating lack of standing as waivable and analogous to capacity defenses)
- Addesso v. Shemtob, 70 N.Y.2d 689 (Ct. App. 1987) (jurisdictional defenses listed in CPLR 3211(a)(8) and (9) cannot be retracted by later amendment)
- Barrett v. Kasco Constr. Co., 56 N.Y.2d 830 (Ct. App. 1982) (court may deem answer amended to assert affirmative defense raised first in opposition to summary judgment)
- Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355 (Ct. App. 2015) (standing in foreclosure can be established by possession of the note)
- U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752 (App. Div. 2009) (assignment or physical delivery of the note transfers the obligation; mortgage passes with the debt)