You are here: / / Purchaser of Mortgage Was Not a “Bona Fide Encumbrancer”—Another...

Purchaser of Mortgage Was Not a “Bona Fide Encumbrancer”—Another Previously Filed Mortgage Was the Operative Mortgage

The Second Department determined Deutsche Bank did not “win the race” to the recording office (so as to cut off another filed mortgage) and was not a “bona fide encumbrancer” because the person living in the mortgaged premises and paying taxes on the property was not consistent with Deutsche Bank’s mortgage:

“[T]o cut off a prior lien, such as a mortgage, the purchaser must have no knowledge of the outstanding lien and win the race to the recording office” … . * * *

” [W]here a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with [what] he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser'” … . “Similarly, a mortgagee is under a duty to make an inquiry where it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue'” … . ” Actual possession of real estate is sufficient notice to a person proposing to take a mortgage on the property, and to all the world of the existence of any right which the person in possession is able to establish'” … . Mortgage Elec Registration Sys Inc v Pagan, 2014 NY Slip Op 05309, 2nd Dept 7-16-14

 

You might also like
Proximate Cause Can Not Be Based Upon Speculation; Many Possible Causes
Disparaging Allegations in Complaint Protected by Judicial Privilege
RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES.
Causes of Action Against City Alleging Negligence In Responding to a 911 Call and In Preparing for and Responding to a Snow Storm Which Blocked Roads Should Have Been Dismissed—Only Governmental Functions Were Involved and there Was No Special Relationship between the City and Plaintiffs’ Decedent
EXCESSIVE INTERFERENCE BY THE TRIAL JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).
INDICATING INCONSISTENT DECISIONS SHOULD NO LONGER BE FOLLOWED, THE SECOND DEPT DETERMINED SUPREME COURT COULD NOT DISMISS A CASE BASED ON THE FAILURE TO FILE A NOTE OF ISSUE WITHIN 90 DAYS OF THE COURT’S ORDER UNLESS THE STATUTORY REQUIREMENTS OF CPLR 3216 ARE COMPLIED WITH (SECOND DEPT).
THE REFEREE’S REPORT, WHICH IS MERELY ADVISORY AND IS NOT BINDING ON THE COURT, SHOULD NOT HAVE BEEN ACCEPTED BY THE COURT BECAUSE IT WAS BASED UPON BUSINESS RECORDS THAT WERE NOT PROVIDED TO THE REFEREE (SECOND DEPT).
A PROPER FOUNDATION WAS NOT LAID FOR THE BUSINESS RECORDS RELIED UPON BY THE PLAINTIFF; THEREFORE THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE WERE NOT MET AND PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND 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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Black Letter Law Re: Rear-End Collisions and Premature Summary Judgment Motions... Sellers Entitled to Keep Downpayment Based Upon Purchaser’s Failure to...