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"Standing" and Fighting a Foreclosure

Posted by 15789465 on

This is probably more interesting to you lawyers than anyone else.

The Alabama Supreme Court issued an opinion on September 13, 2013, that address the question of "standing" as it relates to a foreclosing lender/servicer who did not actually own the note and mortgage at the time of the foreclosure. The consolidated cases were Ex parte BAC Home Loans Servicing, LP, and Robinson v. Cox, case numbers 1110373 and 1110458.

The issue in one case was whether the question of ownership of the loans could be raised, for the first time, on appeal. Prior authority cast this as a "standing" issue, which could be raised at any time, because it questioned the court's jurisdiction. The question in the other case went to the borrower's reliance on a "standing" defense at the trial level, which was denied by the trial court.

The Alabama Supreme Court opinion contained a detailed and excellent discussion of the concept of standing. It corrected prior loose language on the topic, and clarified subtle differences between a standing defense, and a defense regarding failure to prove the elements of one's cause of action. They held that when a borrower disputes a post-foreclosure ejectment action on the basis of standing, that is the wrong defense, and it should be denied.  You can read the entire decision HERE.


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