Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
2Activity
0 of .
Results for:
No results containing your search query
P. 1
MERS v R w

MERS v R w

Ratings: (0)|Views: 431|Likes:
Published by DinSFLA

More info:

Published by: DinSFLA on Jun 01, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

09/24/2013

pdf

text

original

 
[*1] Decided on May 23, 2011
Supreme Court, Kings County
 23508/09Plaintiff was represented by Bradley D. Wank, Esq., Delbello, Donnellan, Weingarten, Wise& Wiederkehr, LLP, One North Lexington Ave., White Plains, NY 10601.Defendant HSBCUSA, NA was represented by Eric Rosenberg, Esq., The Law Division of Fidelity National Title Group., Inc., 350 Fifth Ave., NY, NY 10118.Herbert Kramer, J.Is a mortgagee a bona fide purchaser in the situation where apparent discrepanciesexisted between affidavits of zero-consideration, the HUD-1 form, and the closing checks?This Court holds that a genuine issue of material fact exists as to whether themortgagee was a bona fide purchaser due to the discrepancies in the closing documents.
 Background 
 Plaintiff alleges that on or about April 10, 2005, title to the premises which is the
Mortgage Elec. Registration Sys., Inc. v Rambaran
2011 NY Slip Op 50966(U)Decided on May 23, 2011Supreme Court, Kings CountyKramer, J.Published by New York State Law Reporting Bureaupursuant to Judiciary Law§ 431.This opinion is uncorrected and will not be published in the printed OfficialReports. 
Mortgage Electronic Registration Systems, Inc., as Nominee forFreemont Investment & Loan, Plaintiffs,againstSushma Rambaran, Seema Rambaran, Hemant Rambaran,HSBC Bank USA, NA, as Indenture Trustee for the RegisteredNoteholders of Renaissance Home Equity Loan Trust 2007-2and Philip Baldeo, Defendants.
 
Page 1 of 4Mortgage Elec. Registration Sys., Inc. v Rambaran (2011 NY Slip Op 50966(U))6/1/2011http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50966.htm
www.StopForeclosureFraud.com
 
subject of this action (the Property) was transferred from defendant Hemant Rambaran(Hemant) to himself and defendant Baldeo both at 50% ownership. On or about August 10,2005, Baldeo and Hemant obtained a loan in the amount of $302,250.00 from FreemontInvestment and Loan (Freemont). In connection with the loan Baldeo and Hemant executeda note and as collateral security executed a mortgage for Freemont. It is undisputed that thenote and mortgage was not recorded. Furthermore, Freemont admits that it not currently in possession of the mortgage documents.[*2] Thereafter on March 30, 2007, Hemant executed a deed purportedly conveying all of his right title and interest to the premises to defendants Seema and Sushma, his daughters.The deed was recorded on March 30, 2007. On March 30, 2007 Seema and Sushmaexecuted a note and mortgage for $423,750.00 secured by the Premises in favor of MERS asnominee for Delta Funding Corporation (Delta). The mortgage was transferred from MERSas nominee for Delta to HSBC.Plaintiff alleges that Hemant's transfer to his daughters was fraudulent and that HSBCwas or should have been on notice of the fraudulent transfer and therefore Freemont'smortgage should have primacy. In support of this position plaintiff relies upon two affidavitsdelivered at the March 30, 2007, closing in which Hemant states that he has received zeroconsideration for the transfer of the premises, that the transfer was between family membersand two transfer tax documents which state that the consideration for the transfer was $0. Incontrast to those documents, the HUD-1 form states that Hemant received $296,000.00 inconsideration for the transfer. Lastly, plaintiff asserts that the checks issued at the closingwere endorsed to parties other than Hemant and his daughters, further casting a suspiciouslight on the transfer.
[FN1]
 
 Real Property Law 
  New York is a "race-notice" state as provided in NY RPL § 291: "A conveyance . ..may be recorded. . .Every such conveyance not so recorded is void as against any personwho subsequently purchases or . . contracts to purchase...the same real property in good faithand for valuable consideration, from the same vendor...and whose conveyance...or contractis first duly recorded..." Essentially there are two basic aspects to the statute. First, one whorecords will have priority over subsequent claimants, whether they have recorded or not.Second, one who records, without notice of an unrecorded prior claimant, will also have priority.
See
NY RPL § 291;
Mortgage Liens in New York 
§ 10:3 et. seq.However, there are several exceptions carved out of this general rule. For example, a prior recorded mortgage would lose priority to an unrecorded mortgage if the mortgagee hadnotice, actual or constructive of such a conveyance. If a purchaser has knowledge of anyfact, sufficient to put him on inquiry as to the existence of some right or title in conflict withthat he is about to purchase, he is presumed either to have made the inquiry, and ascertainedthe extent of such prior right, or to have been guilty if a degree of negligence equally fatal tohis claim, to be considered a bona fide purchaser.
Maiorano v. Garson
, 886 N.Y.S.2d 190[2d Dep't 2009]
citing Williamson v. Brown
, 15 NY 354, 362 (internal citations omitted).
Page 2 of 4Mortgage Elec. Registration Sys., Inc. v Rambaran (2011 NY Slip Op 50966(U))6/1/2011http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50966.htm
www.StopForeclosureFraud.com
 
 Summary Judgement 
 On a summary judgment motion the court must view the evidence in the light mostfavorable to the party opposing the motion, giving that party the benefit of every reasonableinference and determine whether there are any triable issues of fact outstanding.
 Branham v. Loews Orpheum Cinemas, Inc.
, 8 NY3d 931[2007]. The court must determine if the[*3]moving party's papers justify holding as a matter of law that the "cause of action or defensehas no merit."
Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co.
,168 AD2d 610 [1990]. It is well established that summary judgment is a drastic remedy thatshould not be granted where there is any doubt as to the existence of a material issue of factor where the issue is arguable.
Stillman v. Twentieth Century-Fox Film Corp.
, 3 NY2d 395[1957].Initially, a summary judgment movant has burden to set forth evidentiary factssufficient to entitle that party to a judgment as a matter of law, tendering sufficient evidenceto eliminate any material issue of fact from the case, and that showing must be made by producing evidentiary proof in admissible form.
Santanastasio v. Doe
, 301 AD2d 511[2003]. Generally, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of itsclaim or defense.
 Dalton v. Educational Testing Service
, 294 AD2d 462 [2002].
 Discussion
 The defendant, HSBC moves for dismissal on the grounds that the defendant's purported lien was not recorded at the time that HSBC took a mortgage on the subject property. HSBC asserts that it had no knowledge, actual or constructive of the purported lienand therefore a bona fide good faith purchasers/encumbrancers and that the mortgage whichthey hold has priority.
[FN2]
 Plaintiff, in opposition to the motion contends that HSBC is not a bona fide purchaser in good faith because, as discussed above, the closing documents associated with the transfer of the property between Hemant and his daughters conflict. Plaintiff further asserts that thecontradiction between the documents raised HSBC's duty to inquire as to whether thetransfer was a fraudulent transfer designed to evade Hemant's creditors.This Court holds thatthe discrepancies in the closing documents were sufficient to put HSBC on notice to further inquire as to the bona fides of the transaction. No evidence has submitted that HSBCengaged in any additional investigation in light of the discrepancies. Rather, it seems thatHSBC simply pushed the documents through without the critical eye which is required inthese transactions. Gone are the days in which closing documents are merely meant to beshuffled and stacked. A lending institution has an affirmative duty to inquire into the bonafides of the documents, prior to taking mortgage[*4]on a property. If they fail in that dutytheir status as a bona fide purchaser is threatened.
See
,
Southwell v. Middleton
, 17 Misc 3d1129(A) [Sup. Kings. 2007].
[FN3]
 Accordingly, the motion is denied.This constitutes the decision and order of the court.
 
Page 3 of 4Mortgage Elec. Registration Sys., Inc. v Rambaran (2011 NY Slip Op 50966(U))6/1/2011http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50966.htm
www.StopForeclosureFraud.com

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->