Argent Mortg. Co., LLC v. Mentesana
| Decision Date | 28 December 2010 |
| Citation | 915 N.Y.S.2d 591,79 A.D.3d 1079 |
| Parties | ARGENT MORTGAGE COMPANY, LLC, appellant, v. Leonard MENTESANA, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
79 A.D.3d 1079
ARGENT MORTGAGE COMPANY, LLC, appellant,
v.
Leonard MENTESANA, et al., respondents.
Supreme Court, Appellate Division, Second Department, New York.
Dec. 28, 2010.
Fein, Such and Crane, LLP, Rochester, N.Y. (Melvin Bressler and David Case of counsel), for appellant.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated May 18, 2009, which denied its motion for summary judgment on the complaint.
ORDERED that the order is reversed, on the law, without costs
In August 2004 the plaintiff commenced this action to foreclose a mortgage. Although the mortgagor failed to appear, the Supreme Court denied the plaintiff's motion for an order of reference, and required it to submit, inter alia, the mortgagor's initial mortgage application. After reviewing documents submitted by the plaintiff, the court set the matter down for a hearing, due to concerns over the plaintiff's decision to lend funds to the mortgagor. On July 6, 2006, the court appointed a special referee. The special referee located the mortgagor, who told the referee that he had signed the note and mortgage as a favor to the former owner of the subject property, and that he was not supposed to make payments on the mortgage. In December 2006, a guardian ad litem was appointed to represent the mortgagor based upon the report of a special referee indicating that there was a possibility that the mortgagor was "incapable of adequately defending or prosecuting his rights." The guardian ad litem submitted an answer on behalf of the mortgagor, and submitted a report to the court dated October 23, 2007. The guardian ad litem indicated in the report that she had spoken with the mortgagor, and opined that the mortgagor willingly and knowingly purchased the subject property and obtained a mortgage, and that the mortgagor understood the associated risks involved in the transactions. The plaintiff subsequently made an unopposed motion for summary judgment on the complaint. The Supreme Court denied the motion, holding that the plaintiff was requesting...
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