By Keith L. Abramson, Esq.

Frenkel LambertWeisman & Gordon, LLP

USFN Member (FL, NJ, NY)

On May 20, 2026, the New York Appellate Division, Second Department, issued a Decision and Order in US Bank National Association v. Nelson, ___ N.Y.S.3d ___ (2d Dept. 2026), involving the borrowers’ attempt to amend their answers, post-Judgment of Foreclosure and Sale, to raise a defense that the plaintiff lacked standing.

RPAPL 1302-a, which became effective on December 23, 2019, states, in relevant part:

Notwithstanding the provisions of subdivision (e) of rule thirty-two hundred eleven of the civil practice law and rules, any objection or defense based on the plaintiff’s lack of standing in a foreclosure proceeding related to a home loan, as defined in paragraph (a) of subdivision six of section thirteen hundred four of this article, shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss.  A defendant may not raise an objection or defense of lack of standing following a foreclosure sale, however, unless the judgment of foreclosure and sale was issued upon defendant’s default.  (emphasis added). 

Since its enactment, defendants in foreclosure actions have tried to persuade the courts that RPAPL 1302-a allows defendants to raise a defense based on lack of standing “at any time.”  The Appellate Division’s decision in Nelson is the latest in a number of cases in which the court continues to dispel that notion[1].

To understand the court’s decision in Nelson, it is important to consider the procedural history of the case. Nelson was commenced in September 2009, a decade before RPAPL 1302-a was enacted. The defendants interposed timely answers to the complaint but did not include the defense of lack of standing. Plaintiff was awarded summary judgment in 2015 over the defendants’ opposition, and defendants did not attempt to raise the defense at that time. Later, when the plaintiff moved for a Judgment of Foreclosure and Sale, defendants opposed and filed a cross-motion, arguing for the first time, inter alia, that plaintiff lacked standing to commence the action. By Decision and Order dated December 15, 2015, the court granted the plaintiff’s motion and denied the cross-motion, holding that the standing defense should have been raised previously when plaintiff successfully sought summary judgment and an order of reference. The defendants’ first appeal followed.

On January 23, 2019, still prior to the enactment of RPAPL 1302-a, the Appellate Division, Second Department, affirmed the Judgment of Foreclosure and Sale, holding in part that the defendants waived the defense of lack of standing by failing to raise the affirmative defense in their answers. US Bank National Association v. Nelson, 169 A.D.3d 110, 93 N.Y.S.3d 138 (2d Dept. 2019). Defendants moved for leave to reargue the appeal or, in the alternative, for leave to appeal to the Court of Appeals. The court denied leave to reargue but granted leave to appeal to the Court of Appeals.

On December 17, 2020, the New York State Court of Appeals handed down its Memorandum opinion affirming the order of the Appellate Division. The Court concluded that, “under the circumstances of this case, Supreme Court did not err in granting plaintiff’s motions for summary judgment and for a judgment of foreclosure and sale.” US Bank National Association v. Nelson, 36 N.Y.3d 998, 999, 163 N.E.3d 49, 139 N.Y.S.3d 118 (2020). The Court held that, under the law in effect at the time of the orders appealed from, the defense of lack of standing had been waived by the defendants by failing to raise standing in their answers or in pre-answer motions as required by CPLR 3211(e).  Id. The Court expressly stated that it did not reach the issue of whether RPAPL 1302-a, enacted while the appeal was pending, would afford defendants an opportunity to raise standing at this stage of the litigation, and the Court remitted to the Supreme Court for further proceedings.

Back in Supreme Court, the defendants moved for leave to amend their answers to add a defense that the plaintiff lacked standing, to vacate summary judgment and the judgment of foreclosure and sale, and for related relief. In their motion, defendants argued that, pursuant to RPAPL 1302-a, “the defense of standing is not waivable and can be raised at any time prior to a foreclosure sale.”  Plaintiff opposed, and the trial court, relying heavily on the language of the Court of Appeals’ opinion, held that “1302-a does not allow a defendant who defended the action on the merits to raise standing following the grant of judgment of foreclosure and sale.” Unlike at the motion for summary judgment stage, where attempts to raise standing for the first time should be credited, the court observed that “[t]here appears to be no appellate precedent supporting the proposition that a non-defaulting defendant can raise a standing defense post-JFS.”  Accordingly, the defendants’ motion was denied by the trial court. Once again, the defendants appealed.

The Appellate Division affirmed, holding that “the Supreme Court, upon determining that RPAPL 1302-a did not provide an independent basis to vacate a judgment of foreclosure and sale, properly denied the defendants’ motion”.  Nelson, supra, ___, N.Y.S.3d ___ (2d Dept. 2026). It remains to be seen whether the defendants will seek leave to appeal to the Court of Appeals, or whether such leave will be granted.  But for now, the law is clear: A defense that the plaintiff lacks standing may not be raised “at any time.”  More specifically, RPAPL 1302-a does not permit a non-defaulting defendant to raise a standing defense post-Judgment of Foreclosure and Sale.

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USFNews - June 10, 2026