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REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE.

The Second Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment in the Real Property Actions and Proceedings Law (RPAPL) 1501 action to set aside the deed and mortgages which were the bases for foreclosure by defendant Wells Fargo bank. Plaintiff demonstrated the initial deed was a forgery. Wells Fargo argued the proper procedure required that plaintiff move to vacate the judgment of foreclosure:

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RPAPL 1501(1) provides that any person who “claims an estate or interest in real property” may “maintain an action against any other person . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, . . . the defendant might make.” A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid … .

Contrary to Wells Fargo’s contention, the plaintiff, who, like the decedent, was not a defendant in the foreclosure action… , properly commenced the instant action … .

Wells Fargo otherwise failed to carry its prima facie burden on its motion by demonstrating the absence of a triable issue of fact as to whether the subject deed was valid … . Accordingly, the Supreme Court erred in granting Wells Fargo’s motion … . Deramo v Laffey, 2017 NY Slip Op 02772, 2nd Dept 4-12-17

REAL PROPERTY (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)/FORECLOSURE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)/DEEDS (FORGED, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1501 WAS THE PROPER BASIS FOR THE ACTION SEEKING TO SET ASIDE THE DEED AND MORTGAGES WHICH WERE THE BASES FOR THE BANK’S JUDGMENT OF FORECLOSURE)

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