,

DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the defendant did have standing to move to vacate a default judgment on the ground that the court which issued the judgment did not have personal jurisdiction over the defendant. The judgment had been satisfied by a property execution on the defendant’s bank account:

​

Where, as here, a defendant moves to vacate a default judgment on the ground that the court that rendered the judgment lacked personal jurisdiction over the defendant … a finding in favor of the defendant would mean that the judgment was “a nullity” . It necessarily follows that, “if a judgment is a nullity, it never legally existed so as to become extinguished by payment” … . …

​

In addition, inasmuch as plaintiff levied the judgment amount with interest by a property execution on defendant’s bank account, we conclude that defendant did not voluntarily pay and satisfy the judgment … . Thus, it cannot be said that she waived the defense of lack of personal jurisdiction … . Cach, LLC v Ryan, 2018 NY Slip Op 00755, Fourth Dept 2-2-18

 

DEBTOR-CREDITOR (DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/CIVIL PROCEDURE (PERSONAL JURISDICTION, DEFAULT JUDGMENT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/DEFAULT JUDGMENT (PERSONAL JURISDICTION, (DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))/PERSONAL JURISDICTION (DEFAULT JUDGMENT, DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT ON THE GROUND THAT THE ISSUING COURT DID NOT HAVE PERSONAL JURISDICTION SHOULD NOT HAVE BEEN DISMISSED EVEN THOUGH THE JUDGMENT HAD BEEN SATISFIED BY A PROPERTY EXECUTION, IF DEFENDANT CAN DEMONSTRATE A LACK OF PERSONAL JURISDICTION, THE JUDGMENT WILL BE A NULLITY (FOURTH DEPT))

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ORAL AGREEMENT BETWEEN TWO BOOKMAKERS FOR REPAYMENT OF A $170,000 LOAN ENFORCEABLE, DESPITE THE MONEY-LAUNDERING PURPOSE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined that the trial court’s finding that an oral agreement concerning the repayment of a $170,000 loan was enforceable, because the loan could have been paid off within a year (re: the statute of frauds). Both plaintiff and defendant were bookmakers who had been convicted of promoting gambling. The fact that plaintiff refused to answer questions about whether he paid income tax on the proceeds, based upon the Fifth Amendment, did not affect the result because there was nothing illegal about the loan agreement itself. The two dissenters argued the parties were engaged in money laundering and the loan agreement should not be enforced as a matter of public policy:

​

We are mindful that plaintiff testified that the source of the loan proceeds was cash obtained through his illegal bookmaking activities. Indeed, both plaintiff and defendant were convicted of promoting gambling and required to pay fines in the amount of $100,000 and $50,000, respectively. Although plaintiff asserted his Fifth Amendment right against self-incrimination when asked whether he ever reported the cash as income, we are not persuaded by defendant’s contention that Supreme Court erred in failing to draw a negative inference because the source and/or taxable status of the funds was not probative of the issue presented. According due deference to Supreme Court’s credibility assessments, we find ample evidence to support the determination that plaintiff and defendant agreed to the loan that defendant breached by failing to make all of the payments due… . Contrary to defendant’s argument, because there was nothing prohibiting defendant from repaying the loan within one year, the statute of frauds did not bar enforcement of the oral agreement … .

We also find that defendant waived his right to challenge the loan on the basis of illegality because it was not raised as an affirmative defense … . Were we to consider the issue, we would find that, because neither the agreement nor the performance of the agreement was illegal, the judgment was enforceable … . Centi v McGillin, 2017 NY Slip Op 08430, Third Dept 11-30-17

 

DEBTOR-CREDITOR (ORAL AGREEMENT BETWEEN TWO BOOKMAKERS FOR REPAYMENT OF A $170,000 LOAN ENFORCEABLE, DESPITE THE MONEY-LAUNDERING PURPOSE (THIRD DEPT))/CONTRACT LAW (STATUTE OF FRAUDS, DEBTOR-CREDITOR, ORAL AGREEMENT BETWEEN TWO BOOKMAKERS FOR REPAYMENT OF A $170,000 LOAN ENFORCEABLE, DESPITE THE MONEY-LAUNDERING PURPOSE (THIRD DEPT))/CRIMINAL LAW (DEBTOR-CREDITOR, MONEY LAUNDERING, ORAL AGREEMENT BETWEEN TWO BOOKMAKERS FOR REPAYMENT OF A $170,000 LOAN ENFORCEABLE, DESPITE THE MONEY-LAUNDERING PURPOSE (THIRD DEPT))/MONEY LAUNDERING (DEBTOR-CREDITOR, CONTRACT LAW, (ORAL AGREEMENT BETWEEN TWO BOOKMAKERS FOR REPAYMENT OF A $170,000 LOAN ENFORCEABLE, DESPITE THE MONEY-LAUNDERING PURPOSE (THIRD DEPT))

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SUMMARY JUDGMENT ENTERING A RENEWAL JUDGMENT PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

In finding plaintiff was properly granted summary judgment in this action for entry of a renewal judgment the court explained the criteria:

​

The Supreme Court properly granted the plaintiff’s motion for summary judgment and entered a renewal judgment pursuant to CPLR 5014(1). The plaintiff established its prima facie entitlement to a renewal judgment as a matter of law by showing: (1) the existence of the original judgment; (2) that the defendant was the judgment debtor; (3) that the original judgment was docketed at least nine years prior to the commencement of this action; and (4) that the original judgment remains partially or completely unsatisfied … . Jones Morrison, LLP v Schloss, 2017 NY Slip Op 07712, Second Dept 11-8-17

 

CIVIL PROCEDURE (SUMMARY JUDGMENT ENTERING A RENEWAL JUDGMENT PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/DEBTOR-CREDITOR (RENEWAL JUDGMENT, SUMMARY JUDGMENT ENTERING A RENEWAL JUDGMENT PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/RENEWAL JUDGMENT (SUMMARY JUDGMENT ENTERING A RENEWAL JUDGMENT PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))/CPLR 5014 (1) (RENEWAL JUDGMENT, SUMMARY JUDGMENT ENTERING A RENEWAL JUDGMENT PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT))

PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT.

The First Department, reversing Supreme Court, determined the warrant of attachment should not have been granted. Plaintiff did not demonstrate the fraud cause of action would succeed on its merits:

… [S]tating a cause of action does not equate to a probability of success on the merits. In her moving papers, plaintiff submitted no affidavit or written evidence that [defendant] had committed fraud. Rather, she relied solely on the fact that partial summary judgment had been granted against three other defendants. However, ‘[t]o sustain a warrant of attachment against the property of a defendant, the moving papers must establish both a cause of action and a ground of attachment as to that particular defendant” … . Genger v Genger, 2017 NY Slip Op 05687, 1st Dept 7-13-17

DEBTOR-CREDITOR (WARRANT OF ATTACHMENT, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)/ATTACHMENT, WARRANT OF, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)/FRAUD (DEBTOR-CREDITOR, WARRANT OF ATTACHMENT, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)

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REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff, seeking payment of a note, did not submit proof of the payment history of the note in admissible form (requirements of the business records exception to the hearsay rule not met). Therefore plaintiff’s motion for summary judgment should not have been granted:

​

… [T]he plaintiff failed to demonstrate the admissibility of the records relied upon by its account officer under the business records exception to the hearsay rule (see CPLR 4518[a]), and thus, failed to establish a default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the plaintiff’s account officer did not allege that she was personally familiar with HSBC’s record keeping practices and procedures, and thus failed to lay a proper foundation for the admission of records concerning the payment history under the note … . Inasmuch as the plaintiff’s motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law … . Cadlerock Joint Venture, L.P. v Trombley, 2017 NY Slip Op 03927, 2nd Dept 5-17-17

CIVIL PROCEDURE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)/DEBTOR-CREDITOR (BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, REQUIREMENTS OF BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SEEKING PAYMENT OF A NOTE SHOULD NOT HAVE BEEN GRANTED)

,

CAUSE OF ACTION BASED UPON A LOAN PAYABLE UPON DEMAND ACCRUES WHEN THE LOAN IS MADE.

The Second Department determined plaintiff’s causes of action based upon loans repayable on demand accrued when the loan was made, rendering them time-barred, despite the provision that payment became due three months after a demand for payment:

​

Here, the parties’ agreement … provided that the sums loaned to the defendants were repayable on demand. Accordingly, the plaintiff possessed a legal right to demand payment at the time that each loan was advanced to the defendants, and the statute of limitations began to run at each of those respective times … . Contrary to the plaintiff’s contention, the three-month period for repayment following a demand did not constitute a condition that had to be fulfilled before the right to final payment arose… . Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss as time-barred so much of the first cause of action as was predicated upon loans that allegedly were made more than six years prior to the commencement of the action. Elia v Perla, 2017 NY Slip Op 03930, 2nd Dept 5-17-17

CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CAUSE OF ACTION BASED UPON A LOAN PAYABLE UPON DEMAND ACCRUES WHEN THE LOAN IS MADE)/DEBTOR-CREDITOR (LOAN PAYABLE UPON DEMAND, CAUSE OF ACTION BASED UPON A LOAN PAYABLE UPON DEMAND ACCRUES WHEN THE LOAN IS MADE)

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ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES.

The Third Department determined plaintiff was entitled a judgment based upon a note with was not negotiable but which was enforceable as a contract. Although the note did not specify when the money was to be paid back, payback in a reasonable time could be implied:

​

Defendant asserts that the note was unenforceable as a matter of law. Although the note did not constitute a negotiable instrument, it may still be enforceable under traditional principles of contract law … . As Supreme Court found, the note “memorialize[d] a debt between the parties and by signing same . . . defendant has acknowledged that debt and his obligation to pay same.” And, while the note stated that the money was to be repaid at a time “[t]o be agreed upon” by the parties, “[w]hen a contract does not specify time of performance, the law implies a reasonable time” … ; here, plaintiff testified that there was an expectation that he would be repaid within two years. Shlang v Inbar, 2017 NY Slip Op 03107, 3rd Dept 4-20-17

CONTRACT LAW (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)/DEBTOR-CREDITOR  (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)/NOTES (ALTHOUGH THE NOTE WAS NOT NEGOTIABLE, IT SUFFICIENTLY MEMORIALIZED THE DEBT UNDER CONTRACT PRINCIPLES)

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NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED.

The Second Department determined the Bank of America’s (BOA’s) motion to dismiss a CPLR Article 52 proceeding contesting BOA’s application of the Exempt Income Protection Act (EIPA) was properly denied. The EIPA exempts $1740 in a bank account from restraint by judgment creditors. BOA aggregated the amount in all of the plaintiffs’ accounts, sent the plaintiffs $1740 and froze the rest. The plaintiffs argued the accounts should not be aggregated, rather the $1740 exemption should be applied to each account separately. The court deemed the statutory language ambiguous (the word “account,” singular, was used). The Second Department noted that Supreme Court’s conversion of the action to the correct format, a CPLR Article 52 special proceeding, was proper:

​

… [W]e find that CPLR 5222(i) is ambiguous as to whether it applies to an “amount” on deposit at a bank or to each “account” maintained at a bank. Turning to the legislative history of the EIPA, the bill jacket indicates that the stated legislative purpose was to create a procedure for the execution of money judgments on bank accounts containing exempt funds to ensure that debtors can keep access to exempt funds … . The legislative history, as reflected in the bill jacket, particularly in a letter in support of the bill written by the bill’s Assembly sponsor, Helene Weinstein, indicates that the statute applies to each account.

Accordingly, BOA failed to establish its entitlement to dismissal of the cause of action alleging violations of the EIPA, and that branch of its motion pursuant to CPLR 3211(a) was properly denied. Jackson v Bank of Am., N.A., 2017 NY Slip Op 02780, 2nd Dept 4-12-17

 

CIVIL PROCEDURE (EXEMPT INCOME PROTECTION ACT (EIPA), NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)/BANKING LAW (EXEMPT INCOME PROTECTION ACT (EIPA), NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)DEBTOR-CREDITOR LAW (EXEMPT INCOME PROTECTION ACT (EIPA), NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)/EXEMPT INCOME PROTECTION ACT (EIPA) (NOT CLEAR WHETHER $1740 EXEMPTION FROM A JUDGMENT CREDITOR’S RESTRAINT OF A FUNDS  HELD BY A BANK APPLIES TO ALL ACCOUNTS IN THE AGGREGATE OR TO EACH ACCOUNT, BANK’S MOTION TO DISMISS THE COMPLAINT ALLEGING EACH ACCOUNT MUST BE CONSIDERED SEPARATELY PROPERLY DENIED)

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PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED.

The First Department held determination of the meaning of the payment guarantees at issue required reference to other documents. Therefore the guarantees were not entitled to expedited treatment pursuant to CPLR 3213 as instruments for the payment of money only:

“The prototypical example of an instrument within the ambit of [CPLR 3213] is of course a negotiable instrument for the payment of money—an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time” … . CPLR 3213 is generally used to enforce “some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness,” so that “a prima facie case would be made out by the instrument and a failure to make the payments called for by its terms” … . A document does not qualify for CPLR 3213 treatment if the court must consult other materials besides the bare document and proof of nonpayment, or if it must make a more than de minimis deviation from the face of the document … . PDL Biopharma, Inc. v Wohlstadter, 2017 NY Slip Op 01151, 1st Dept 2-14-17

CIVIL PROCEDURE (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/DEBTOR-CREDITOR (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/GUARANTEES (CPLR 3213, PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)/CPLR 3213 (PAYMENT GUARANTEES NOT ENTITLED TO EXPEDITED TREATMENT PURSUANT TO CPLR 3213 AS INSTRUMENTS FOR THE PAYMENT OF MONEY ONLY, REFERENCE TO OTHER DOCUMENTS WAS NEEDED)

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BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE.

The Second Department determined defendant bank (Chase) was entitled an equitable lien against plaintiff’s property under the doctrine of equitable subrogation. Chase had issued a mortgage to a third party which was used to pay off plaintiff’s mortgage. The transaction with the third party was fraudulent under Real Property Law 265-a known as the Home Equity Theft Prevention Act. Supreme Court held that Chase should have heeded warnings signs about the validity of the transaction, but did not actively facilitate the third party’s fraud (Chase did not have “unclean hands”). To avoid plaintiff’s unjust enrichment, Chase was entitled to an equitable lien against the property equal to the mortgage that was paid off plus taxes and insurance:

Under the doctrine of equitable subrogation, where the “property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . The plaintiff contends that the Supreme Court erred in awarding Chase equitable subrogation because, in light of the determination that it was not a bona fide encumbrancer for value, Chase should have been denied equitable subrogation under the doctrine of unclean hands … . We disagree. The doctrine of unclean hands applies when the offending party “is guilty of immoral, unconscionable conduct” directly related to the subject matter in litigation and which conduct injured the party seeking to invoke the doctrine … . Here, although Chase was charged with knowledge of information which would have caused a prudent lender to inquire as to the circumstances of the transaction, the Supreme Court did not find that it had actual notice of the fraud or that it did anything to actively facilitate the fraud. There was no evidence that Chase “was a willing participant in a mortgage [rescue] scheme” … . Lucia v Goldman, 2016 NY Slip Op 08353, 2nd Dept 12-14-16

 

MORTGAGES (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/REAL PROPERTY LAW (HOME EQUITY THEFT PREVENTION ACT, BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/HOME EQUITY THEFT PREVENTION ACT (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/EQUITABLE LIEN (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/LIEN LAW (EQUITABLE LIEN, (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/EQUTABLE SUBROGATION, BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/UNCLEAN HANDS (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)