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CAVEAT EMPTOR (BUYER BEWARE) DOES NOT APPLY TO JUDICIAL FORECLOSURE SALES; HERE THE BANK DID NOT DISCLOSE THE EXISTENCE OF A SENIOR MORTGAGE; SALE SET ASIDE AND DOWN PAYMENT RETURNED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure judicial sale should have been set aside because plaintiff bank failed to disclose the existence of a senior mortgage:

“The rule that a buyer must protect himself [or herself] against undisclosed defects does not apply in all strictness to a purchaser at a judicial sale” … . “‘[A] sale of land in the haste and confusion of an auction room is not governed by the strict rules applicable to formal contracts made with deliberation after ample opportunity to investigate and inquire'” … . “‘As a general rule, a purchaser at a foreclosure sale is entitled to a good, marketable title'” … . “‘[A] purchaser at a judicial sale should not be compelled by the courts to accept a doubtful title,'” and “‘if it was bad or doubtful, he [or she] should, on his [or her] application, be relieved from completing the purchase'” … . Accordingly, since the plaintiff failed to disclose the existence of the senior mortgage at the time of sale, or otherwise, the Supreme Court improvidently exercised its discretion in denying those branches of the nonparties’ motion which were to set aside the foreclosure sale and to direct the referee to return [the buyer’s] down payment. Wells Fargo Bank, N.A. v Schepisi, 2023 NY Slip Op 03943, Second Dept 7-26-23

Practice Point: Caveat emptor (buyer beware) does not apply to judicial foreclosure sales. Here the bank’s failure to disclose the existence of a senior mortgage required the sale be set aside and the down payment returned.

 

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