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Barry M. Klayman and Mark E. Felger

In Shrewsbury v. The Bank of New York Mellon, No. 306, 2016 (Del. Apr. 17, 2017), a divided Delaware Supreme Court held that a mortgage assignee must be entitled to enforce the underlying obligation that the mortgage secures in order to foreclose on the mortgage. The decision means that the mortgage holder in a foreclosure action must also prove that it owns the underlying note. The majority opinion, while eschewing the notion that it was imposing a new pleading requirement for mortgage foreclosure actions, nevertheless suggested that best practice for plaintiffs counsel in a foreclosure action where a mortgage has been assigned would be to include an averment that the note, as well as the mortgage, was assigned to the plaintiff.

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