Since the 2007 mortgage crisis, lack of standing by a mortgage assignee bringing a foreclosure action has received much attention from courts nationwide. However, there is nothing in Rules 4:64-1 and 2, or in current practice, which require a foreclosing mortgage assignee, its attorneys, employees or agents, to set forth in any pleading, proof or certification the date on which the mortgage assignee acquired actual physical possession of the note, an operative requirement for enforceability of a negotiable note under the Uniform Commercial Code (UCC), N.J.S.A.12A:3-203(a).
This is surprising given the often cited, comprehensive Chancery Division opinion by Judge Todd in Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 364 (2010). In dismissing the plaintiff’s complaint, Judge Todd held that any new foreclosure complaint must be accompanied by a certification from a person with personal knowledge “confirming that plaintiff is in possession of the original note as of the date any new action is filed,” and”must indicate the physical location of the note and the name of the individual or entity in possession.”
