Wednesday, March 24, 2010

Foreclosure Defendant Waives Defenses of Lack of Standing and Improper Service

By  Nicholas M. Moccia
      Law Offices of Robert E. Brown, P.C.

Wells Fargo Bank Minn., Natl. Assn. v Perez, 2010 NY Slip Op 00956 (2d Dep't 2010)

Here, a foreclosing plaintiff was awarded summary judgment in an action to foreclose a mortgage, and the Second Department affirmed upon appeal.  During this appeal, the defendant failed to raise the defenses of lack of standing or improper service.  Thereafter, the plaintiff moved for a judgment of foreclosure and sale. When the defendant opposed the motion, she raised the previously mentioned defenses.  The Second Department held that the defendant waived her defenses since she already had a full and fair opportunity to address the issues on the prior appeal. Moreover, she provided no basis for re-examining those issues.

"As a general rule, the law of the case doctrine precludes this Court from re-examining an issue which has been raised and decided against a party on a prior appeal where that party had a full and fair opportunity to address the issue." Frankson v Brown & Williamson Tobacco Corp., 67 A.D.3d 213, 217 (2d Dep't 2009); see Allison v Allison, 60 A.D.3d 711, 711 (2d Dep't 2009). The doctrine forecloses re-examination of an issue "absent a showing of subsequent evidence or change of law."  J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 A.D.3d 809, 809 (2d Dep't 2007), quoting Matter of Yeampierre v Gutman, 57 AD2d 898, 899 (2d Dep't 1977).
Wells Fargo Bank Minn., Natl. Assn. v Perez

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