Because a sale of the note and mortgage—the assignment—during the course of a foreclosure action is so common, the question arises with frequency: Is there a mandate to submit an order or notice a motion to change the caption of the action to reflect the name of the new mortgage holder as the plaintiff?
The answer is no, as a matter of statute (CPLR §1018) and decisional law.1 Nonetheless, recent case law has revealed a practical, if not a legal, problem on this point. In one action, the trial court ruled correctly, but the foreclosing party suffered the time and expense of an appeal initiated by the chagrined borrower.2 In two other instances, the trial court stumbled and the bemused lender was constrained to appeal to right the wrong.3 The lower court decisions even erroneously raised the bugaboo of standing to further complicate what in the end was neither a complex nor a recondite legal principle.
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