Justice Wayne Saitta
Wells Fargo Bank moved for summary judgment in this action to foreclose on a mortgage. Erobobo filed an answer containing a general denial. The bank was the trustee for a securitized trust, which was subject to the terms of a Pooling and Servicing Agreement (PSA). Erobobo argued the bank was not the owner or holder of the note as it obtained the note and mortgage after the trust closed in violation of the PSA, thus the acquisition was void. Plaintiff argued as defendant failed to raise standing in his answer as an affirmative defense or pre-answer motion, he could not do so now. The court disagreed finding plaintiff’s ownership of the note was not an issue of standing, stating it was not an affirmative defense as it was a denial of an allegation in the complaint that was an element of plaintiff’s cause of action. Defendant’s general denial in his answer was a denial of all of plaintiff’s allegations, including that it owned the note. The court noted the PSA prohibited acquisition of any asset after the closing date, thus as the trustee acquired the note and mortgage after the closing date, the trustee exceeded its authority and violated the terms of the trust, voiding the acceptance of the note and mortgage. Plaintiff’s motion was denied.
