Trustco Bank, Nat. Ass'n v. Eakin

• Decision Date: 10 December 1998
• Citation: 256 A.D.2d 778,681 N.Y.S.2d 410
• Parties: 1998 N.Y. Slip Op. 10,987 TRUSTCO BANK, NATIONAL ASSOCIATION, Appellant, v. Robert J. EAKIN Jr. et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 410

681 N.Y.S.2d 410

1998 N.Y. Slip Op. 10,987

TRUSTCO BANK, NATIONAL ASSOCIATION, Appellant, v. Robert J. EAKIN Jr. et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division,

Third Department.

Dec. 10, 1998.

McNamee, Lochner, Titus & Williams P.C. (Francis J. Smith Jr. of counsel), Albany, for appellant.

Kurt David Clobridge, West Sand Lake, for respondents.

Before CARDONA, P.J., MERCURE, WHITE, SPAIN and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from an order of the Supreme Court (Canfield, J.), entered January 14, 1998 in Rensselaer County, which, inter alia, denied plaintiff's motion for leave to enter a deficiency judgment.

On this appeal from an order in which Supreme Court refused to enter a deficiency judgment in favor of plaintiff, we are asked to determine who is responsible for vandalism which occurs when the mortgagors, mortgagee and court-appointed receiver of rents all do nothing to secure a vacant mortgaged premises during the pendency of a foreclosure action. Supreme Court concluded that plaintiff, the mortgagee, was responsible for advancing sufficient funds to the receiver to board up the property and, because it failed to do so, found that "[e]quity will not permit this Court to condone [plaintiff's] actions". In addition to denying the application for a deficiency judgment, Supreme Court also imposed costs against plaintiff, awarding defendants and the receiver, respectively, $1,000 each.

Our review of the record reveals the following. In 1993, defendants Robert J. Eakin Jr. and Christine M. Eakin (hereinafter collectively referred to as defendants) purchased two connecting, three-story walk-up apartment buildings in the City of Troy, Rensselaer County, for $188,000. In 1995, defendants executed a mortgage on the premises in favor of plaintiff in the amount of $157,000. In the fall of that year, defendants contracted to sell the property for $160,000; while the transaction never consummated due to the purchasers' default, the contract price gives the court some indication of the fair market value of the property at that time. Shortly thereafter, in February 1996, defendants defaulted on the mortgage.

The instant foreclosure action was commenced in June 1996. The following month, Supreme Court appointed a receiver of rents who, by the terms of the court's order, was "totally responsible to protect and preserve the Mortgaged Premises". For reasons not entirely clear from the record, the receiver did not qualify to serve until the posting of his bond in September 1996, at which time the premises were entirely vacant, having been abandoned by defendants. Although defendants did, at the receiver's request, drain the water pipes in anticipation of winter, they refused his specific request for additional funds to further secure the property. During the entire receivership, the total amount of rent proceeds turned over to the receiver by defendants was $84.46.

In January 1997, the receiver wrote to plaintiff's attorney stating:

The property has been secured as well as possible. The gas, water, and electricity have all been turned off. The Defendant and his counsel had the water pipes drained. There are no tenants and to my knowledge there are no occupants in these apartments. The accesses and lower windows should be boarded up. Unfortunately, there are no funds to do so.

Plaintiff declined to provide any funds to assist the receiver in preserving the premises. Apparently, the property remained unsupervised, unlet and unsecured until plaintiff's purchase of same at the foreclosure sale in May 1997 with a bid of $75,000. The premises were subsequently sold by plaintiff to a third party for $27,500.

At a hearing conducted by Supreme Court on plaintiff's application for a deficiency judgment, plaintiff offered the testimony of its appraiser who testified that the property was worth $75,000 at the time of the foreclosure sale based in part on his observation that some of the units had been "trashed". Defendants offered the testimony of two appraisers who valued the property at $174,000 and $140,000, respectively, with the latter appraiser testifying that most of the damage was "cosmetic". Alternatively, defendants argued that no deficiency judgment should be awarded at all based upon plaintiff's refusal to advance funds to the receiver to secure the property, and that the receiver himself should be surcharged for his failure to protect the property during the term of his receivership. Plaintiff appeals from Supreme Court's determination denying its application for a deficiency judgment in its entirety and assessing costs against it.

We begin our analysis by noting that a court-appointed receiver in a foreclosure action is an officer of the court and not an agent of the party who procured the appointment (see, Kaplan v. 2108-2116 Walton Ave. Realty Co., 74 A.D.2d 786, 425 N.Y.S.2d 817). During the pendency of the receivership, the property is, in essence, in the possession of the court itself (see, Walling v. Miller, 108 N.Y. 173, 178, 15 N.E. 65) and we assess the legal consequences of any diminution in the value of the property in this context. While it may have been more prudent for the receiver to have applied to the court to terminate the receivership upon discovering that the premises were vacant at the time of qualification (see, Emigrant Indus. Sav. Bank v. Feldblum Realty Corp., 238 App.Div. 231, 232, 264 N.Y.S. 104), we cannot disagree with Supreme Court's conclusion that the receiver should not be surcharged. Ordinarily, a...