You are here: / / Wife’s Encumbrance of Marital Property in Violation of Court Order and K...
,

Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds

The Second Department determined the holder of a mortgage (Marie Holdings), which was undertaken by the wife in violation of the matrimonial court’s order not to encumber the marital residence, was not entitled to any of the surplus proceeds after a foreclosure sale of the property.  The facts that the wife violated the matrimonial court’s order and the attorney who was the agent for the mortgage holder knew of the court-order were determinative:

“The surplus funds of a foreclosure sale stand in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land” … . Accordingly, “[s]urplus money takes the place of the equity of redemption and only one who had a vested estate or interest in the land sold under foreclosure which was cut off by the foreclosure sale is entitled to share in the surplus money with priority in each creditor determined by the filing date of his lien or judgment” … . * * *

Contrary to Marie Holdings’ contention, the matrimonial court had authority to determine that the husband was entitled to the surplus funds as part of the equitable distribution of the marital property … . Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order … , and because Marie Holdings’ agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife’s interest therein … . The matrimonial court, in its discretion, divested the wife of that interest based upon her conduct. Emigrant Mtge Co Inc v Biggio, 2013 NY slip Op 06344, 2nd Dept 10-2-13

 

You might also like
Petitioner-Employee Did Not Demonstrate the Union Breached Its Duty of Fair Representation, Therefore Petitioner Did Not Demonstrate an Exception to the “Exhaustion of Remedies” Pre-Requisite for an Article 78 Proceeding
“Economic Necessity” Justified Relocation
10-Year-Old Plaintiff’s Testimony Should Have Been Considered—No Need for Hearing to Determine Testimonial Capacity
Family Court Should Not Have Directed that Visitation With the Father Be Only to the Extent Agreed Upon by the Parties Without Holding a Hearing—There Is a Presumption Visitation with a Noncustodial Parent Is In the Best Interests of the Child, Even Where the Noncustodial Parent Is Incarcerated—Absent Exceptional Circumstances, Visitation with a Noncustodial Parent Is Always Appropriate
Criteria for Appointment of Temporary Receiver to Wind Up Dissolution of Partnership Not Met
BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT).
THE PROFESSIONAL LIABILITY INSURANCE POLICYHOLDERS (DOCTORS), NOT THE POLICYHOLDERS’ EMPLOYER WHICH PAID THE PREMIUMS, ARE ENTITLED TO THE PAYMENTS ASSOCIATED WITH THE CONVERSION OF THE MUTUAL INSURANCE COMPANY TO A STOCK INSURANCE COMPANY (SECOND DEPT).
Appellant’s Running From Area Where Gunshots Were Heard and a Visible Bulge Under Appellant’s Clothing Provided Police With Reasonable Suspicion to Justify Stopping Appellant

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Request to File Late Notice of Claim Granted in Absence of Good Reason for... Relief Granted By Court Went Too Far Beyond Relief Requested