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


Asked on 2/14/11, 7:04 pm

1 Answer from Attorneys
Steven Czik CZIK LAW PLLC

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

[email protected]

The information provided by The Law Offices of Steven J. Czik, P.C. (LOSJC) is for general educational purposes only. There is no attorney-client relationship established by this communication and no privilege attaches to such communication. LOSJC is not taking and will not take any action on your behalf and will not be considered your attorney until both you and LOSJC have signed a written retainer agreement. There are strict deadlines, called statutes of limitation, within which claims or lawsuits must be filed. Therefore, if you desire the services of an attorney and decide not to retain LOSJC on terms acceptable to LOSJC, you are advised to immediately seek the services of another attorney.

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Answered on 2/16/11, 1:10 pm


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