In WILMINGTON SAVINGS FUND SOCIETY, FSB, DBA CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE FOR VENTURES TRUST 2013-I-H-R v. KIRK GIBSON, BRETT JONES, et al., after a non-jury trial, by Order entered on March 27, 2015, the Court: (i) granted Plaintiff “Judgment as a Matter of Law on all causes of action alleged in the Verified Amended Complaint”; (ii) dismissed “Defendant Jones’ counterclaims and affirmative defenses asserted in his Verified Amended Answer… as a matter of law”; and (iii) directed Plaintiff to “file a request for an order of reference under a separate order.”
Defendant Jones, who lives at the premises, but who previously transferred the premises to a straw-man borrower in order to qualify for the loan, appealed the order arguing that (1) the sale of the premises to the borrower was a fraudulent transaction and (2) the note holder did not have standing to foreclose.
Adam Leitman Bailey, P.C. successfully argued before the appellate panel that Plaintiff established its standing to commence the action as a matter of law by demonstrating through submission of credible evidence that the Note and Mortgage were validly assigned to Plaintiff prior to commencement of the action and, further, that a party may continue an action in the name of the plaintiff, even after assignment of the mortgage, without formal substitution.
Additionally, Adam Leitman Bailey, P.C. argued that Jones cannot execute a deed to the premises to the borrower and later argue fraud, as “a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written”.
Persuaded by Adam Leitman Bailey, P.C.’s arguments, in a decision and order dated January 24, 2018, the Appellate Division, Second Department, affirmed the lower court’s order granting judgment in favor of Plaintiff.
Jackie Halpern Weinstein, Esq. of the Foreclosure Group and Title Litigation Group and Colin E. Kaufman, Esq. of the Title Litigation Group at Adam Leitman Bailey, P.C. won this appeal for the note holder.