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New York State Court Finds Bank Has Standing to Foreclose Against Defendant Borrower on Multiple Grounds Despite Alleged "Newly Discovered Evidence"

A New York State Supreme Court issued a Decision and Order finding that JPMorgan Chase Bank, N.A. (“Chase”) was entitled to a judgment of foreclosure on a residential property finding that the bank had standing to proceed against a borrower who had been on default on a mortgage for ten years.  (JPMorgan Chase Bank, N.A. v. Futterman, et al. Index No. 6384/2009 (Sup. Ct., Columbia Cty)).  In this action, the borrower contended that the Court should deny the foreclosure action because the bank was purportedly not the true owner of the note.   The Court found that the bank had standing to proceed both under the 2008 Purchase and Assumption Agreement between Washington Mutual and Chase and that Chase had made a sufficient showing that it possessed the original note.  Defendant moved to vacate the Decision and Order on the grounds of “newly discovered evidence” under CPLR 5015.  Specifically, the borrower argued that the key codes found in the loan’s history indicated that the loan was owned by Washington Mutual Asset Acceptance Corporation, which she argued was an independent subsidiary of Washington Mutual that was not acquired by Chase under the Purchase and Assumption Agreement. 

The Court denied these contentions noting that in the original Decision and Order, the Court had already found that the bank had sufficient standing on two grounds to proceed with the action.  The Court further found that the borrower had misconstrued the Purchase and Assumption Agreement and that the contention that the subsidiaries were not covered by the Purchase and Assumption Agreement was contradicted by the terms of the agreement.  Finally, the Court declined to exercise its discretion to overturn the Decision and Order because the loan was in default for ten years, the trial took place over two years ago, the Decision and Order was issued one year ago and this was the second attempt by defendant to present “new evidence.”  The Court further cautioned defendant from engaging in further frivolous motion practice which “shall result in the imposition of monetary sanctions on counsel, defendant or both”  and awarded costs and disbursements to Chase. 

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