J.m. Shrewsbury, A/k/a J. Michael Shrewsbury, and Kathy Shrewsbury, Defendants Below-Appellants v. the Bank of New…

Summary

The Court held that a mortgage assignee must be entitled to enforce the underlying debt secured by the mortgage before it may foreclose. The borrowers’ assertion that the assignee lacked the right to enforce the note was a plea in avoidance, and the record created a genuine factual dispute because the assignee did not produce the note or claim entitlement to enforce it. The Court reversed summary judgment and remanded for further proceedings. STRINE, Chief Justice, dissenting, would have affirmed because the foreclosure statute permits a mortgage holder to foreclose without separately proving ownership of the note.