Appellate Division, Fourth Department
Standing – Assignment
First Franklin Financial Corporation v. Norton, et al.
Appealed from Supreme Court, Chautauqua County
Background: The plaintiff appealed from an order that dismissed the complaint against him and sua sponte cancelled the mortgage in this mortgage foreclosure action.
Ruling: The Appellate Division held that the lower court properly granted the motion to dismiss the complaint on the ground that the plaintiff lacked standing. The defendant established that it did not have a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action. The Appellate Division modified the order as it was improper to sua sponte cancel and discharge the mortgage.
John A. Cirando of Fein, Such & Crane for the plaintiff-appellant; Marco Cercone of Rupp Baase Pfalzgraf Cunningham for the defendant-respondent