ABN Amro Mortg. Grp., Inc. v. Stephens

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: ABN Amro Mortg. Grp., Inc. v. Stephens, 91 A.D.3d 801, 939 N.Y.S.2d 70, 2012 N.Y. Slip Op. 477 (N.Y. App. Div. 2012)
• Decision Date: 24 January 2012
• Parties: ABN AMRO MORTGAGE GROUP, INC., appellant, v. Kayann STEPHENS, et al., respondents.

2012 N.Y. Slip Op. 00477

91 A.D.3d 801

939 N.Y.S.2d 70

ABN AMRO MORTGAGE GROUP, INC., appellant,

v.Kayann STEPHENS, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 24, 2012.

Solomon & Siris, P.C., Garden City, N.Y. (Stuart Siris and Bill Tsevis of counsel), for appellant.

Miller, Rosado & Algios, LLP, Mineola, N.Y. (Neil A. Miller of counsel), for respondents.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action pursuant to RPAPL article 15, inter alia, to determine claims to real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated August 11, 2010, which denied its motion for summary judgment on the complaint and dismissing the counterclaims.

ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion for summary judgment on the complaint and dismissing the counterclaims is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the power of attorney purportedly granted by Sally Mandeville to Bertram Brown is a forgery, that the defendants' interests in the subject property are null and void, and that the plaintiff's mortgage is valid.

On August 29, 2005, a power of attorney was recorded in the Office of the City Register of the City of New York, in and for the County of Kings (hereinafter the City Register), purporting to authorize Bertram Brown to sell a parcel of real property on behalf of “Sally Manderville” (hereinafter the Brown power of attorney). On the same day, a deed was recorded with the City Register purporting to transfer the interest of “Sally Manderville” in the subject property to Westport Marketing, Inc. (hereinafter Westport). Westport's purported interest was transferred to Hometech Building Corp. (hereinafter Hometech) by a deed recorded on November 18, 2005, and Hometech transferred its purported interest to the defendant Kayann Stephens by a deed recorded on July 24, 2006. Stephens purportedly mortgaged the subject property to the defendant Mortgage Lender's Network, USA, Inc. (hereinafter Mortgage Lender's). The plaintiff, ABN AMRO Mortgage Group, Inc., took a mortgage on the subject properly from another purported owner, Rachida Allam.

The plaintiff commenced this action on November 30, 2006, pursuant to RPAPL article 15. The plaintiff's first and second causes of action sought a judgment declaring that the Brown power of attorney was a forgery, that the defendants' interests in the property were null and void, and that its mortgage was valid pursuant to an unrecorded chain of title. The third cause of action sought cancellation of the defendants' deed and mortgage. In their answer to the complaint, the defendants asserted counterclaims alleging that the defendant Stephens was the lawful owner of the subject premises and that the defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for Mortgage Lender's, held two valid mortgages on the subject property.

The plaintiff moved for summary judgment on the complaint and dismissing the defendants' counterclaims. In support of the motion, the plaintiff submitted evidence that Sally Mandeville moved from Brooklyn to South Carolina in February 2002, when she was approximately 77 years old, and was in an assisted care facility in South Carolina in December 2004, when the person purporting to be “Sally Manderville” signed the Brown power of attorney in Brooklyn. The plaintiff also submitted the affidavit of the notary public who acknowledged the Brown power of attorney stating that the “Sally Manderville” who came into his office with Brown was a woman in her forties.

Concerning its own interest in the subject property, the plaintiff submitted a power of attorney dated September 12, 2003, and signed by Sally Mandeville, which authorized Patrick A. Hallums Mitchell to act in her place, among other things, in real estate transactions. The power of attorney was acknowledged by a notary public. The plaintiff additionally submitted a deed, signed by Mitchell as Mandeville's attorney-in-fact, conveying Mandeville's interest in the subject property to Jolton Sanchez; a deed conveying Sanchez's interest to Rachida Allam; and a mortgage from Allam to the plaintiff. All three documents were dated November 19, 2003, and were acknowledged by a notary public, although none was recorded with the City Register.

In opposition to the motion, the defendants did not defend the validity of the Brown power of attorney, but merely asserted that the plaintiff failed to establish the validity of its own interest in the property. The Supreme Court denied the plaintiff's motion. We reverse.

If a signature on a power of attorney is forged, any document executed by the purported attorney-in-fact pursuant to the power of attorney is void ( see First Natl. Bank of Nev. v. Williams, 74 A.D.3d 740, 741, 904 N.Y.S.2d 707; Hoffman v. Kraus, 260 A.D.2d 435, 436, 688 N.Y.S.2d 575). If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing ( see First Natl. Bank of Nev. v. Williams, 74 A.D.3d at 741, 904 N.Y.S.2d 707; LaSalle Bank Natl. Assn. v. Ally, 39 A.D.3d 597, 600, 835 N.Y.S.2d 264; Karan v. Hoskins, 22 A.D.3d 638, 639, 803 N.Y.S.2d 666; Public Adm'r of Kings County v. Samerson, 298 A.D.2d 512, 513, 750 N.Y.S.2d 301; Yin Wu v. Wu, 288 A.D.2d 104, 105, 733 N.Y.S.2d 45; Kraker v. Roll, 100 A.D.2d 424, 430, 474 N.Y.S.2d 527). “A deed based on forgery or obtained by false...