New Jersey courts are now using the dictum espoused in Deutsche Bank Nat. Trust Co. v. Mitchell, 422 N.J. Super. 214, 225 (App. Div. 2011)—that “Deutsche Bank could have established standing as an assignee, N.J.S.A. 46:9-9, if it had presented an authenticated assignment indicating that it was assigned the note before it filed the original complaint”—to evaluate standing in mortgage foreclosure actions. In Deutsche Bank Nat. Trust Co v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), the Appellate Division stated: “In Mitchell, we held that either possession of the note or an assignment of the mortgage that predated the original complaint conferred standing.” And in Deutsche Bank Nat. Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012), the standard mutated (in the post-judgment context) into the mortgage assignee obtaining either the note or a valid assignment or both before entry of judgment.

It is this article’s thesis that, as to mortgages securing negotiable notes, Mitchell’s “either/or standard,” insofar as it permits a mortgage assignee (or its servicer) to establish standing without possession of the secured note, violates the law of negotiable instruments and mortgages.