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Attributes of Equitable Mortgage Explained

In affirming the denial of plaintiff’s motion for summary judgment based upon allegations of the existence of an equitable mortgage, the Fourth Department explained the attributes of an equitable mortgage:

“Equity generally will keep an encumbrance alive, or consider it extinguished, as will best serve the purposes of justice’ ” … . “The whole doctrine of equitable mortgages is founded upon [the] cardinal maxim of equity which regards that as done which has been agreed to be done, and ought to have been done” … .

” [A]n equitable mortgage may be constituted by any writing from which the intention so to do may be gathered, and an attempt to make a legal mortgage, which fails for the want of some solemnity, is valid in equity’ ” … . “While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation’ . . . , it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances’ ” . .. . Canandaigua Natl Bank & Trust Co v Palmer, 2014 NY Slip Op 05263, 4th Dept 7-11-14

 

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