Assignment Must Be Completed at Commencement of Smithtown Foreclosure

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.”