Practitioners in the area of mortgage foreclosures know that for the past several years at the center of virtually every contested mortgage foreclosure proceeding is a defense founded upon the plaintiff’s alleged lack of standing. Where a defendant-borrower puts the plaintiff-lender’s standing into issue, it is the lender that has the burden of proving its standing in order to be entitled to relief. See Bank of New York v. Silverberg, 86 A.D.3d 274, 926 N.Y.S.2d 532 (2d Dept. 2011) (“Where…the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief.”).
Until recently, lenders could generally rest assured that, if a borrower in a mortgage foreclosure action did not specifically plead the affirmative defense of lack of standing in its answer, standing was not in issue in the proceeding and the lender did not have the burden of establishing its standing. Indeed, generally speaking, courts have held that, where the borrower did not specifically plead standing as an affirmative defense, the defense was deemed waived pursuant to CPLR 3018(b). See CPLR 3018(b) (titled “responsive pleadings” and providing that “[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading,” and providing a non-exhaustive list of defenses which must be pleaded in an answer).
