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Home > Underwriting > Title News > Eighteen Volume Five

SERIES: Eighteen VOLUME: Five DATED: May, 2003

~ MORTGAGE FORECLOSURE AGAINST ADMINISTRATOR OF DECEASED MORTGAGOR UPHELD ~

A recently decided case has upheld a mortgage foreclosure initiated against a mortgagor and continued against the administrator of the mortgagor's estate without amendment of the mortgage foreclosure complaint after the death of the mortgagor. That appellate case, GMAC Mortgage Corporation v. Tuck (Appellate Division, Second Department, decided November 4, 2002), additionally upheld a denial of a right of redemption of the foreclosed property after the foreclosure sale had been completed.

In the Tuck mortgage foreclosure action, the appellate court upheld the lower court decision denying the defendants' motion to vacate the judgment of foreclosure and sale as well as denying the defendants' motion to direct the plaintiff bank to accept payment of the mortgage debt after the sale with the following decision:

"The plaintiff commenced an action to foreclose a mortgage against, among others, Jeanette Tuck. Upon discovering that Jeanette Tuck had died, it served Jeffrey Tuck, one of the administrators of Jeanette Tuck's estate (hereinafter the administrator). It then obtained an order substituting the administrator as a defendant. The plaintiff did not, however, amend the complaint to indicate that the original defendant had died or that an administrator had been appointed.

The defendants argue that the complaint is jurisdictionally defective because there was no allegation in the complaint of the death of Jeanette Tuck, or the appointment of the defendant Jeffrey Tuck as one of the administrators. The defendants' claim is without merit. The defendants did not show the necessity for a supplemental complaint. A supplemental complaint is not necessary when, as here, it would contain facts which are undisputed. Further, there was no showing that the defendants were prejudiced by the omission...

The defendants' contention that jurisdiction was not acquired over the administrator is without merit. In order for the court to obtain jurisdiction over the administrator of an estate, the administrator must be served as prescribed in CPLR article 3... Here, the administrator was personally served on January 6, 2001 in accordance with CPLR article 3. Thus, personal jurisdiction was obtained over the administrator.

Moreover, the defendants' claim that they had a right of redemption up until the time the deed was delivered to the purchaser at the foreclosure sale is without merit. Redemption is not permitted after a foreclosure sale, whether or not a deed has actually been delivered to the sale purchaser...

The defendants's remaining contentions are without merit."

~ TITLE POLICY EXCEPTION FOR STREET EASEMENT UPHELD ~

In a recent action to recover damages for a claim under a title insurance policy which involved a private street easement, Scaglione v. Commonwealth Land Title Insurance Company (Appellate Division, Second Department, decided March 24, 2003), the appellate court upheld a dismissal of the insureds' complaint based on a correct exception in the title policy in question with the following decision:

"The plaintiffs contend that the defendant breached its title insurance policy by failing to provide coverage for a private street easement affecting the insured premises claimed by the City of New York as an adjoining landowner. The premises are located in the bed of a 'paper' street known as Avenue Y a/k/a Bergen Avenue, which was originally laid out as a street on a subdivision map entitled 'Map of Bergen Beach, No. 1018,' which was filed in 1893. The plaintiffs obtained title to the premises by adverse possession.

The subject policy contains an exclusion for 'the rights if any, of the City of New York arising from the mapping of Bergen Avenue.' The plaintiffs claim that the private street rights claimed by the City as an adjoining landowner are separate and distinct from the easement rights of the City 'arising from the mapping of Bergen Avenue,' since they derive from an express reservation of such rights in a 1926 deed, which was not excluded from coverage under the policy. We disagree.

While it is true that 'a defect arising from the rights of a person whose interest appears in the chain of title must be covered unless specifically excepted'..., the City's claimed easement as an adjoining landowner is implied by law. The law is clear that 'when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant'... Therefore, at most, it appears that if the 1926 deed relied on by the plaintiffs does in fact reserve such an easement (which this court cannot verify on this record), such reservation would merely reflect a recognition of the private street easement implied by law in favor of the City as an adjoining landowner. Since the source of these private street rights emanates from 'the mapping of Bergen Avenue,' the Supreme Court properly found that the City's claim was encompassed by the policy's exclusion, thereby warranting the dismissal of the plaintiffs' complaint."


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