Lend-Mor Mortgage Bankers Corp. v. Nicholas, 2008-09654
| Court | New York Supreme Court Appellate Division |
| Citation | 2010 NY Slip Op 224,893 N.Y.S.2d 566,69 A.D.3d 680 |
| Docket Number | 2008-09654 |
| Parties | LEND-MOR MORTGAGE BANKERS CORP., Respondent, v. EDWARD NICHOLAS et al., Defendants, and AMERIQUEST MORTGAGE COMPANY, Appellant. |
| Decision Date | 12 January 2010 |
v.
EDWARD NICHOLAS et al., Defendants, and
AMERIQUEST MORTGAGE COMPANY, Appellant.
In an action to foreclose a mortgage, the defendant Ameriquest Mortgage Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Cullen, J.), dated September 16, 2008, as granted that branch of the plaintiff's motion which was for summary judgment declaring that the mortgage held by the plaintiff is superior in priority to the mortgage held by it, and denied that branch of its cross motion which was for summary judgment declaring, inter alia, that the mortgage held by it was superior in priority to the mortgage held by the plaintiff.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Under New York's Recording Act (Real Property Law § 291), a mortgage loses its priority to a subsequent mortgage where the subsequent mortgagee is a good-faith lender for value, and records its mortgage first without actual or constructive knowledge of the prior mortgage" (Washington Mut. Bank, FA v Peak Health Club, Inc., 48 AD3d 793, 797 [2008]). Here, at the time
the plaintiff, Lend-Mor Mortgage Bankers Corp. (hereinafter Lend-Mor), received a mortgage on the subject property for the sum of $244,000, a prior mortgage in favor of the defendant Ameriquest Mortgage Company (hereinafter Ameriquest) was unrecorded and did not appear in the chain of title. On its motion for summary judgment, Lend-Mor demonstrated its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) by establishing that its mortgage was valid and superior in priority to Ameriquest's mortgage. Lend-Mor provided evidence establishing that it gave valuable consideration for its recorded mortgage, and that it did not have actual knowledge of Ameriquest's unrecorded mortgage or knowledge of facts that would have put it on "inquiry notice" of that mortgage (see Real Property Law § 291; Washington Mut. Bank, FA v Peak Health Club, Inc., 48 AD3d at 797). Lend-Mor obtained a title search which did not contain any indication that the subject property was encumbered by the Ameriquest mortgage. To the contrary, both the mortgage application and a credit report indicated that the...
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...77 N.Y.S.3d 439that its mortgage was valid and superior in priority to JPMorgan's mortgage (see Lend–Mor Mtge. Bankers Corp. v. Nicholas, 69 A.D.3d 680, 681, 893 N.Y.S.2d 566 ; Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 A.D.3d 793, 797, 853 N.Y.S.2d 112 ).In opposition to Wells ......
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...853 N.Y.S.2d 112 ; see Wells Fargo, N.A. v. Savinetti, 116 A.D.3d 765, 766, 984 N.Y.S.2d 73 ; Lend–Mor Mtge. Bankers Corp. v. Nicholas, 69 A.D.3d 680, 680, 893 N.Y.S.2d 566 ). "A mortgagee is under a duty to make an inquiry where it is aware of facts that would lead a reasonable, prudent le......
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...record “must contain all of the relevant papers that were before the Supreme Court” [89 A.D.3d 671] ( LaSalle Bank N.A. v. Henderson, 69 A.D.3d at 680, 891 N.Y.S.2d 655 [internal quotation marks omitted]; see CPLR 5526; Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605). Here, alt......
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JP Morgan Chase Bank, NA v. Levin, 2015–07941
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WMC Mortg. Corp. v. Vandermulen, 2019–06996
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