Legal Question in Real Estate Law in New York
Bank holds a 2007 second mortgage on property. Private lender holds a 2005 first mortgage on same property.
In January 2009 Bank, as plaintiff, brings suit against private lender as defendant. The Bank's Suit sets out equitable arguments as to why court should issue an order that will declare that bank 's 2007 second mortgage should be senior to private lender's 2005 mortgage.
A year after suit commences, private lender discovers that Bank was in FDIC receivership prior to the time Bank had filed suit.
Private lender ( defendant ) plans to file a dispositive motion based on the fact that bank lacked legal existence at the time suit was commenced.
There are several different types of 12 (b) motions to dismiss.
For a number of reasons, I only want to bring this as a 12 (b) (1) motion to dismiss .
( Court lacks jurisdiction over the subject matter )
I do not want to bring it in any of the other kinds of motions to dismiss.
In other words my question is as follows;
Does a 12 (b) (1) motion lie in a situation where the plaintiff lacked legal existence when it filed suit ?
Thank you.
Dennis Cook
4 Carmichal St
Essex, VT 05452
781-953-2486
1 Answer from Attorneys
We have substantial experience handling these types of cases, however, we would need some more information before making a complete and proper determination. You are welcome to contact us for a free consultation.
Law Offices of
STEVEN J. CZIK, P.C.
101 Avenue of the Americas, 15th Floor
New York, New York 10013
212.413.4462
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