This page covers New York law. "Standing" means the legal right to bring the case. In a foreclosure, the question is whether the company suing you actually owned or held your loan on the day it filed. Loans are often sold, pooled and serviced by different companies over their life, so the party named as plaintiff is frequently not the bank that made the loan. Challenging standing is one of the defenses KOR Law LLP's foreclosure defense practice lists among the matters it handles. For where this defense fits in the overall case, see what happens after you are served with a foreclosure summons in New York.
What does the plaintiff have to show?
In Aurora Loan Servs., LLC v Taylor, decided June 11, 2015, the New York Court of Appeals addressed standing directly. The court explained that "the note, and not the mortgage, is the dispositive instrument that conveys standing to foreclose under New York law," and that physical delivery of the note to the plaintiff before the case begins may, in some circumstances, be enough to transfer the obligation and create standing. Once a note is transferred, the mortgage passes with it. In that case the borrowers lost: the plaintiff proved through a business records affidavit that it took possession of the original note four days before it filed, and the court held that was what mattered.
Aurora shows both sides of the defense. A mismatch between the mortgage records and the plaintiff's name is not enough on its own, because the mortgage follows the note. But the plaintiff must prove when it obtained the note, and the date has to come before the case was started. Gaps in that proof, unclear indorsements, or a transfer dated after filing are where standing defenses are built.
The court also noted that "an entity with a mortgage but no note" lacks standing. It accepted a sworn affidavit from an employee who had examined the original note, observing that the borrowers never asked to see the original in discovery. Separately, the Appellate Division had reversed the judgment of foreclosure and sale because the referee computed the amount due without a hearing on notice to the borrowers. We explain that step in how a referee's report works and how to challenge the amount owed.
How does a note pass from one company to another?
When a note is a negotiable instrument, Article 3 of New York's Uniform Commercial Code governs how it changes hands. A note payable to order is transferred by delivery with any necessary indorsement, and a note payable to bearer by delivery alone (UCC 3-202(1)). An indorsement, the signed transfer language, must be written on the note itself or "on a paper so firmly affixed thereto as to become a part thereof" (UCC 3-202(2)). That attached page is called an allonge. In Aurora, the allonge showed the chain of indorsements from the original lender to the trustee that owned the loan.
The kind of indorsement matters. A special indorsement names the person the note is payable to, and the note can then be negotiated further only by that person's indorsement. A blank indorsement names no one and may be a bare signature; it makes the note payable to bearer, and it can then be negotiated by delivery alone until someone specially indorses it (UCC 3-204). With a note indorsed in blank, the question usually becomes who physically held it, and from what date.
| What the note shows | How it is transferred | What to check |
|---|---|---|
| Special indorsement ("pay to the order of" a named company) | Only by that company's own indorsement (UCC 3-204(1)) | Whether every named company in the chain signed over to the next |
| Blank indorsement (a signature naming no one) | By delivery alone, until specially indorsed (UCC 3-204(2)) | The date the plaintiff took physical possession of the original |
| Indorsement on a separate page (allonge) | Valid only if the page is firmly affixed to the note (UCC 3-202(2)) | Whether the allonge is attached to the original, and when it was signed |
| Original note lost or destroyed | The owner may still sue on due proof of ownership, the facts that prevent production, and the note's terms (UCC 3-804) | The lost-note affidavit, and the security the court must require |
What must the plaintiff file at the start of a home loan case?
For a home loan where the defendant lives in the property, CPLR 3012-b requires the plaintiff's attorney to file a certificate of merit with the complaint, certifying after review of the mortgage, the note and every assignment that there is a reasonable basis for the case and that the plaintiff "is currently the creditor entitled to enforce rights under such documents." Copies of the note, mortgage and assignments must be attached, or affidavits explaining that they are lost. If a plaintiff willfully fails to provide them, the court may dismiss the complaint without prejudice or deny interest, costs and fees (CPLR 3012-b(e)).
New York City courts add their own rules. Queens County's Residential Foreclosure Part rules say every residential foreclosure complaint should state that the plaintiff is the holder of the note and mortgage or has a current, valid assignment of them. Kings County's uniform foreclosure rules require every order of reference to attach the property's chain of assignment, with the date of each assignment. The Brooklyn courthouse steps are on our page about what to expect at Kings County Supreme Court in a foreclosure case.
When can standing be raised, and when is it too late?
The general rule in CPLR 3211(e) is that many defenses are waived if they are not raised in the answer or in a pre-answer motion to dismiss. RPAPL 1302-a creates an exception for home loans. It says a lack of standing defense in a foreclosure on a home loan "shall not be waived" if the defendant fails to raise it in the answer or the pre-answer motion. The same section draws a line at the sale: a defendant may not raise lack of standing after the foreclosure sale unless the judgment of foreclosure and sale was issued on the defendant's default.
| Situation | Can standing still be raised? |
|---|---|
| Home loan, defense left out of the answer | Yes, it is not waived (RPAPL 1302-a) |
| Home loan, after the sale, where the judgment was entered on your default | Yes (RPAPL 1302-a) |
| Home loan, after the sale, where you appeared and the judgment was not a default | No (RPAPL 1302-a) |
| Commercial loan or other loan outside the home loan definition | RPAPL 1302-a does not apply; raise it in the answer or the first motion to dismiss |
"Home loan" has the meaning in RPAPL 1304(6): a loan to a natural person for personal, family or household purposes, secured by a one to four family home or condominium unit that is the borrower's principal dwelling. For what has to go in the answer generally, see how long you have to answer a foreclosure complaint in New York, and what has to go in the answer.
A loan made to a company, or a property held through an LLC, usually falls outside that definition, so the ordinary waiver rule applies, and CPLR 3211(e) permits only one pre-answer motion to dismiss. We set the two tracks side by side in commercial or residential foreclosure in New York.
For a home loan, missing the answer deadline does not end the defense. A homeowner who appears at the settlement conference after missing the deadline may serve an answer within 30 days of that first appearance, "without any substantive defenses deemed to have been waived" (CPLR 3408(m)). If that window has passed, read what happens if you missed the deadline to answer a foreclosure in New York. After a default judgment, the court system's guide says defenses are raised in a request to vacate it, explained in whether you can undo a default judgment in New York.
What if the court already ruled against you on standing?
CPLR 2221 offers two routes back to the same judge. A motion for leave to reargue must be based on facts or law the court overlooked or misapprehended, cannot add new facts, and must be made within 30 days after service of the order with written notice of its entry (CPLR 2221(d)). A motion for leave to renew must rest on new facts that would change the result, with a reasonable justification for not offering them before, or on a change in the law (CPLR 2221(e)). An appeal is a separate track with its own deadline, explained in whether you can appeal or reargue a foreclosure judgment in New York.
What changes the answer for your standing defense?
The same paper trail can lead to different results depending on a few facts, each tied to a rule:
- Whether it is a home loan. The no-waiver rule covers only loans that meet the RPAPL 1304(6) definition (RPAPL 1302-a).
- Whether the sale has happened, and how the judgment was entered. After the sale, standing is off the table unless the judgment of foreclosure and sale was entered on your default (RPAPL 1302-a).
- How the note is indorsed. A specially indorsed note passes further only by the named holder's indorsement; one indorsed in blank passes by delivery alone (UCC 3-204).
- Whether the original note is missing. A plaintiff suing on a lost note must prove ownership, why it cannot produce the note, and its terms, and the court must require security of at least twice the unpaid amount (UCC 3-804). In a home loan case, affidavits of loss go with the certificate of merit (CPLR 3012-b(c)).
- An earlier case on the same loan. If a prior foreclosure ended and a new one is filed, CPLR 205-a limits who may use its six-month refiling window: a successor or assignee of the original plaintiff may not, unless it pleads and proves it is acting on the original plaintiff's behalf (CPLR 205-a(a)(1)). The wider timing rules are in how long a lender has to foreclose in New York.
For example: testing a plaintiff's proof in a Brooklyn case
For example, imagine a homeowner who lives in her Brooklyn condominium and borrowed from Bank A in 2007. (This is a made-up illustration, not a real client or result.) In March 2026 she is served with a summons and complaint naming Trust B as plaintiff. The certificate of merit attaches the note, with an allonge bearing a blank indorsement from Bank A, and an assignment of the mortgage to Trust B that was recorded two weeks after the case was filed.
Under Aurora, the late mortgage assignment does not defeat standing on its own, because the mortgage follows the note; the real question is when Trust B took possession of the original note. Her answer raises lack of standing. In discovery she asks to inspect the original note and the allonge and for the records showing the date of delivery, the step the borrowers in Aurora never took. When Trust B moves for summary judgment with an affidavit saying only that it held the note "prior to commencement," with no date and no account of how it got the note, her opposition points to those gaps. The judge decides whether the proof is enough. If the ruling goes against her, the 30-day reargument clock and the appeal deadline both run from service of the order with notice of entry.
Common mistakes with the standing defense
- Attacking the mortgage assignment instead of the note. Aurora held that the validity of the mortgage assignment was "irrelevant" to standing there. The note and the date of its delivery are what count.
- Never asking to see the original note. In Aurora the court noted that the borrowers never requested production of the original in discovery or moved to compel it.
- Waiting until after the sale. Unless the judgment was entered on your default, RPAPL 1302-a bars the defense once the property is sold.
- Leaving it out on a business loan. Outside the home loan rule, omitting standing from both the one pre-answer motion and the answer can waive it (CPLR 3211(e)).
- Missing the 30-day reargument clock. It runs from service of the order with written notice of entry, not from the day the judge signed it (CPLR 2221(d)).
What to do this week
- Write down the date and the way the summons reached you, and mark your answer deadline.
- Find the certificate of merit and its attachments. List every indorsement and allonge on the note, with each name and date.
- Line up the filing date against the date of each recorded assignment and indorsement. In Brooklyn, Queens, Manhattan and the Bronx, recorded documents are searchable in ACRIS, the city's online property records system.
- Collect every servicing transfer letter and any papers from an earlier foreclosure case on the same loan.
- If an order has already gone against you, note the date it was served with notice of entry and count 30 days from it.
- Bring everything on our foreclosure defense consultation checklist to a meeting with a lawyer before the deadline.
Frequently asked questions
Does a standing defense mean I do not owe the money?
No. Standing asks who may enforce the loan, not whether the debt exists. In Aurora, the borrowers never disputed their missed payments; the only issue was whether that plaintiff could bring the case.
Can a loan servicer foreclose in its own name?
It can, if it has the note. In Aurora, the servicer had taken physical custody of the original note before filing and held a limited power of attorney from the trustee that owned the loan. The Court of Appeals held that was enough for standing.
My mortgage names MERS. Does that matter?
Not by itself. In Aurora the mortgage was granted to MERS as nominee, but the note was never transferred to MERS. The court held that the note, not the mortgage, decides standing, and that "the mortgage passes as an incident to the note."
Is standing the same as a notice defense?
No. Standing asks whether this plaintiff may sue at all; a notice defense asks whether it first did what the law requires, such as mailing the 90-day notice correctly. The court system's list of common defenses names both, and both can be raised in one case. See New York's 90-day foreclosure notice and what happens if the lender got it wrong.
Can I raise standing while the settlement conference is going on?
You can raise it in your answer, but motions by either side are held in abeyance while the settlement conference process is ongoing, except motions about compliance with the conference rule (CPLR 3408(n)). Our page on what happens at a New York foreclosure settlement conference explains how that process runs.
If the case is dismissed for lack of standing, can the lender sue again?
Possibly. That turns on timing rules rather than on the dismissal itself: whether a new case would be on time depends on the six-year limitations period for an action on a note and mortgage (CPLR 213(4)) and the refiling limits in CPLR 205-a. If you answered the first case, defenses you raised on time there stay timely in a new action on the same loan (CPLR 205-a(b)).