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Contact:
Nina McCann
Director of Public Relations
Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP
516-248-1700
nmccann@ForchelliLaw.com
Partner James
C. Ricca’s Decision
Published in The New York Law Journal
Mortgage Is Ruled No Longer a Valid Lien, May Be Canceled
as Cloud on Title, 10/21/09
9 N.Y.L.J. 27, (col. 1)
Uniondale, October 21, 2009 — Partner James
C. Ricca along with Partner Peter Alpert and Associate
Kathryn Sammon Burns were recently granted dismissal
of a foreclosure action in New York Supreme Court. Through
their efforts, a new law pertaining to mis-indexed mortgages
was created.
The matter commenced on March 1, 2004, when the Plaintiff
recorded a mortgage bearing the incorrect lot number, thereby
causing the City Register to mis-index the mortgage. On
September 15, 2004 a bona fide purchaser took title to
the subject premises and simultaneously acquired a mortgage
loan from a bona fide mortgagee. The deed and September
15th mortgage were properly recorded under the correct
lot designation. On February 13, 2008 the City Register
corrected the lot number on Plaintiff’s mortgage
and properly indexed it thereafter. On August 21, 2008,
Plaintiff commenced an action to foreclose on their mortgage.
Forchelli,
et al. (the Firm), was retained to represent both the Defendant
purchaser and Defendant mortgagee, moved for Summary Judgment
requesting dismissal of the Plaintiff’s
complaint, and further requested an order vacating the
Plaintiff’s mortgage on the grounds that Plaintiff’s
mortgage lien was defective and constituted a cloud on
title.
The court found that neither Defendant had
actual knowledge of Plaintiff’s mortgage, and because the “undisputed
error in indexing proves they were not on constructive
notice” of Plaintiff’s mortgage, it ceased
to be a valid lien on the premises, and should be canceled
as a cloud on title. As a result, the court granted
the Firm’s motion to dismiss and to cancel the mortgage
of record.
The decision was published in the latest
issue of The
New York Law Journal.
James C. Ricca concentrates his practice in the areas
of banking and finance law; foreclosures; creditor’s
rights; trusts and estates; corporate law; and real estate
litigation. Mr. Ricca counsels individuals, small
businesses and institutional lenders and has significant
experience representing private and institutional lenders
on large commercial mortgage loan transactions.
Peter Mills Alpert practices in the areas of real estate
acquisition, leasing, finance, corporate and commercial
law, and condominiums and cooperatives.
Kathryn Sammon Burns is an Associate, concentrating her practice in the areas
of real estate, banking, finance, foreclosures, creditors
rights and real estate litigation.
Founded
in 1976, Forchelli, Curto, Deegan, Schwartz, Mineo,
Cohn, & Terrana
LLP is one of Long Island's most acclaimed and distinguished
law firms. With offices in Uniondale and Melville,
NY, the firm is conveniently located for clients in
Nassau and Suffolk. The Firm employs nearly 50 attorneys
who provide counsel to a broad range of clients, including
national, regional and local businesses, major real
estate developers and organizations, banks, insurance
companies, municipalities, educational institutions,
and individuals. Personal attention and quality representation
that is both practical and cost-effective are hallmarks
of the Firm's policy towards clients.
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