You are here: / / Questions of Fact Existed About Whether Mortgage Lender Was Aware of Underlying...
,

Questions of Fact Existed About Whether Mortgage Lender Was Aware of Underlying “Foreclosure Rescue Scam”

In a full-fledged opinion by Justice Acosta, the First Department determined questions of fact existed about whether a mortgage loan (to Henry) was issued (by “Accredited”) with knowledge of fraud underlying the transaction.  Accredited alleged it was an “encumbrancer for value.”  After noting Accredited failed to submit evidence of its alleged “encumbrancer for value” status in admissible form (no official or certified title search was submitted), the First Department addressed evidence of Accredited’s knowledge of the underlying fraud:

Even assuming that defendants had established bona fide encumbrancer status, they would not be entitled to summary judgment because plaintiff has set forth evidence that defendants had notice of the underlying fraud.  * * *

…Accredited approved a $500,000 loan to Henry—a “buyer” who had no intention of purchasing a home and appears to have been coerced into attending the closing—without any proof that he had an ability to repay it. Indeed, the record is devoid of evidence to suggest that Accredited examined Henry’s paystubs, tax returns, or credit history before approving his loan application. These suspicious aspects of the transaction present issues of fact pertaining to Accredited’s knowledge of the foreclosure rescue scam.

The faulty appraisal also raises an inference that Accredited had notice of the underlying fraud. Although Accredited reduced the loan amount after becoming aware of the overstated appraisal, the fact that the initial appraisal was overstated would lead a reasonably prudent lender to investigate further to determine whether the prospective borrower was involved in a transaction free of fraud.  * * * Miller-Francis v Smith-Jackson, 2013 NY Slip Op 07821, 1st Dept 11-21-13

 

You might also like
WHEN A COURT DECIDES AN ACTION BROUGHT AS A SPECIAL PROCEEDING SHOULD HAVE BEEN BROUGHT AS A PLENARY ACTION, THE ACTION SHOULD NOT BE DISMISSED BECAUSE IT WAS BROUGHT IN THE WRONG FORM; THE PETITION SOULD BE DEEMED A COMPLAINT, NOT A MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).
THE JURY VERDICT FINDING THAT PLAINTIFF’S NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF HER INJURIES WAS NOT INCONSISTENT AND SHOULD NOT HAVE BEEN SET ASIDE (SECOND DEPT).
ALTHOUGH INDIVIDUAL DEFENDANTS, OFFICERS OR EMPLOYEES OF DEFENDANT CORPORATION, DID NOT SIGN THE AGREEMENT IN THEIR INDIVIDUAL CAPACITIES, THEY ARE ENTITLED TO ENFORCE THE ARBITRATION PROVISION OF THE AGREEMENT (FIRST DEPT).
IN A MED MAL CASE, AN EXPERT AFFIDAVIT WHICH MAKES ASSERTIONS UNSUPPORTED AND BELIED BY THE RECORD AND, FOR THE FIRST TIME, ASSERTS ISSUES NOT ENCOMPASSED BY THE COMPLAINT OR BILL OF PARTICULARS, DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).
THE DEPOSITION OF THE NONPARTY MAJORITY SHAREHOLDER IN THE COOPERATIVE REGARDING LEAKS IN THE UNITS WAS PROPER AND SHOULD NOT HAVE BEEN STOPPED AND SUPPRESSED BY THE JUDGE; SANCTIONS AGAINST PLAINTIFF’S ATTORNEY FOR FRIVOLOUS AND UNPROFESSIONAL CONDUCT WERE WARRANTED (FIRST DEPT). ​
THE ATTEMPT TO CORRECT A SENTENCING MISTAKE IN THE DEFENDANT’S ABSENCE VIOLATED DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHT TO BE PRESENT (FIRST DEPT). ​
Unauthorized Use of Another’s Credit Card Number Is Not Identity Theft Where the Card Owner’s Identity Is Not Otherwise Assumed/Unauthorized Use of Another’s Credit Card Number Can Constitute Possession of Stolen Property
THE INTERSTATE COMPACT FOR THE PLACEMENT OF CHILDREN (ICPC) APPLIES ONLY TO OUT-OF-STATE ADOPTION OR FOSTER CARE, NOT TO THE PLACEMENT OF A CHILD WITH AN OUT-OF-STATE PARENT; QUESTION CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; REGULATION RELIED ON TO APPLY THE ICPC CONFLICTS WITH THE CONTROLLING STATUTE (FIRST DEPT).

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

Court Should Have Instructed Jury on Plaintiff’s Comparative Fault in... Property Owned by Religious Group Entitled to Real Property Tax Exemption