On Nov. 25, 2020, the Appellate Division, Second Department interpreted RPAPL 1302-a for the first time, and, fortunately, determined that this new statute does not fundamentally alter the standing defense in residential mortgage foreclosure actions. Standing is, and remains, a non-jurisdictional affirmative defense that must be raised by the defendant to be put at issue in foreclosure litigation. The decision is a welcome relief to the mortgage servicing industry that anxiously awaited the Appellate Division’s interpretation of RPAPL 1302-a.
RPAPL 1302-a was enacted and became effective on Dec. 23, 2019. The statute provides:
Notwithstanding the provisions of [CPLR3211(e)], any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in [RPAPL 1304(6)(a)], shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss. A defendant may not raise an objection or defense of lack of standing following a foreclosure sale, however, unless the judgment of foreclosure and sale was issued upon defendant’s default” (RPAPL 1302-a).
