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The case law requires that the Plaintiff, on the date of the foreclosure action either be the holder of record of the mortgage or be in actual physical possession of the original mortgage documents. My attorney informs me that in Wells Fargo Bank, N.A. v. Marchione, 69 AD3d 204, 887 N.Y.S. 2d 615 [2d Dept 2009], the Court ruled that where the plaintiff was not the assignee of the mortgage on the date of the commencement of the action that the plaintiff lacks standing to maintain the action. As stated in LaSalle Bank National Association v. Ahearn, 59 A.D.3d 911, 875 NYS 2d 595 (3d Dept 2009) “foreclosure of a mortgage may not be brought by one who has no title to it…and an assignee of such a mortgage does not have standing unless the assignment is complete at the time the action is commenced.” “Thus a retroactive assignment cannot be used to confer standing upon the assignee in a foreclosure action.”
My attorney has also informed me that Courts have denied the Plaintiff relief and dismissed foreclosure actions where the assignment(s) for the mortgage and note have been found defective. Even where the Plaintiff intends to assign the mortgage but does not formally record the assignment in a timely manner, Courts have dismissed a “retroactive assignments” based on lack of standing. Chase vs. Gertrude George, 27 Misc. 1217 (A), 910 N.Y.S 2d 762 (NY Sup, 2010); Deutsche Bank v. Francis, 30 Misc. 1241 (A), 2011 WL 1107080 (NY Sup, 2011); BNY vs. Mulligan, 28 Misc. 3d 1226 (A): 2010 WL 3339452 (2010). Deutsche Bank National Trust Company v. Campbell, 21 Misc.3d 1145(A), 2008 WL 5220543 (N.Y. Sup.), Washington Mutual Bank v. Patterson, 21 Misc.3d 1145(A), 2008 WL 5233195 (N.Y. Sup.) (Plaintiff failed to document proper MERS assignments); HSBC Bank USA, N.A. v. Yeasmin, 19 Misc.3d 1127(A), 2008 WL 1915130 (N.Y. Sup.), LaSalle Bank National Association v. Lamy, 12 Misc.3d 1191(A), 2006 WL 2251721 (N.Y. Sup.).- Thefore at the commencement of a Smithtown foreclosure the assignment of a mortgage must be completed.
My attorney has also informed me that Courts have denied the Plaintiff relief and dismissed foreclosure actions where the assignment(s) for the mortgage and note have been found defective. Even where the Plaintiff intends to assign the mortgage but does not formally record the assignment in a timely manner, Courts have dismissed a “retroactive assignments” based on lack of standing. 
