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Home > Underwriting > Title News > Seventeen Volume Three

SERIES: Seventeen VOLUME: Three DATED: March, 2002


A recently decided Appellate Division case, Regions Bank Etc. v. David W. Campbell et al (Appellate Division, 2nd Department, decided February 14, 2002) upheld a lower court decision which granted a mortgagor's motion to cancel the notice of pendency and vacate the judgment of foreclosure and sale in a mortgage foreclosure because a satisfaction of the mortgage had been mistakenly filed.

In the Campbell case the Appellate Court held as follows:

"On May 7, 1999, while the subject property was owned by the defendant David W. Campbell, the plaintiff commenced this action to foreclose the mortgage it held on the property and filed a notice of pendency. On May 18, 1999, the plaintiff's agent mistakenly issued a satisfaction of mortgage (hereinafter the satisfaction), which was recorded on June 7, 1999. In December 1999 Campbell contracted to sell the property to the respondent James Stutzman. In February 2000, relying on a title report disclosing both the notice of pendency and subsequently-recorded satisfaction, Stutzman closed on the property. Relying on the same title report, the respondent Countrywide Home Loans, Inc., took a mortgage on the property with Stutzman. The title insurance policy issued in connection with the closing omitted the foreclosure action and notice of pendency from its coverage exceptions. On May 10, 2000, a judgment of foreclosure and sale in this action was entered. However, on or about that date, the plaintiff learned of the satisfaction. The plaintiff now asserts that the satisfaction was issued and recorded in error since the debt remained unpaid.

Even though the satisfaction was mistakenly recorded by the plaintiff's agent after the filing of the notice of pendency and before the closing, the respondents were entitled to rely on the satisfaction . . . Contrary to the plaintiff's contention, the respondents had not duty to conduct any further inquiry into the status of the foreclosure action.

Under the peculiar circumstances of this case, equity precludes the plaintiff from canceling the satisfaction, since the respondents properly relied on it to their detriment . . . Accordingly, the Supreme Court properly granted those branches of the motion which were to cancel the notice of pendency and to vacate the judgment of foreclosure and sale . . ."


In a recently decided boundary line dispute, Timothy C. Brown v. John W. Ames (Appellate Division, 3rd Department, decided January 10, 2002), the Court based its decision on a frequently applied principle that, in determining the location of property boundaries natural landmarks and artificial monuments take precedence over mere metes and bounds descriptions. The Court in Brown held:

"This dispute involves ownership and title to a parcel of real property located in the Town of North Norwich, Chenango County, that lies between properties owned by the parties. Both properties were once owned by Boniface Everard and Rosella Everard, the parents of defendant Janet S. Ames. Plaintiffs' predecessors in interest took title to a portion of the Everard property located north of Thompson Creek, which was excepted in the deed conveying the remainder of the property located to the north of this disputed parcel to defendants. The various deeds to both properties describe plaintiffs' property as bounded generally to the northeast by an iron pipe located near an apple tree and to the northwest by an iron pin located along Mudge King Road, which then runs southerly towards the bridge spanning Thompson Creek. From the bridge, the property the runs east and then north along Thompson Creek back to the apple tree. It is the northern east-west boundary of the parcel that is in dispute, with the parties disagreeing as to how far to the north on Mudge King Road the location of the northwestern corner of the boundary should be placed.

As a result of the dispute, in July 1998, defendants hired a surveyor to determine the boundary line between the properties and he could not find the iron pin referred to in the deed which was to mark the northwestern corner of the property. Consequently, the surveyor used the approximate distance measurements contained in the deed description to locate and set a new five-eighth-inch steel pipe on Mudge King Road as the location of the northwestern corner. Defendants thereafter installed a wire fence along this boundary line. Plaintiffs, in turn, hired their own surveyor in August 1999 and he located a bent and damaged iron pipe in a disturbed area along Mudge King Road north of the steel pipe set by defendants. That pipe was similar to the iron pipe located at the eastern boundary apple tree. He used this pipe to locate what plaintiffs claim to be the northwestern corner of their property. The conflicting locations of the northwestern corner created a pie-shaped area of land that is the subject of this dispute.

Plaintiffs commenced this RPAPL article 15 action to be declared the owners of the disputed area under color of title or, alternatively, by adverse possession. Following a nonjury trial, Supreme Court found, inter alia, that the iron pipe located by plaintiffs' surveyor was the correct boundary marker and, thus, plaintiffs were the title owners of the disputed area. Defendants appeal.

In determining the location of property boundaries, 'natural landmarks and artificial monuments take precedence over mere metes and bounds descriptions' . . . Nevertheless, defendants argue that since their surveyor was unable to locate the western iron pipe marker when their survey was conducted, Supreme Court erred in failing to find that plaintiffs placed the iron pipe at the location they desired so that their surveyor could find it. Significantly, in a nonjury case, substantial deference is accorded to the trial court's assessment of credibility issues . . . Upon review of this record, we conclude that Supreme Court was within its discretion in crediting plaintiffs' testimony regarding the location of the iron pipe boundary market. Notably, plaintiffs' expert gave a plausible explanation for the failure of defendants' expert to locate the marker by noting that the iron pipe was damaged and had been obscured by construction activity in the area. Under the circumstances, we find no reason to disturb Supreme Court's decision . . ."


Congratulations to William Grove, a former Vice President of Monroe, who celebrated his 100th birthday on March 27th. Mr. Grove began his employment in Monroe's Buffalo office in June 1934, became a title searcher in January 1939, was appointed an Assistant Secretary of the Company in May 1942, an Assistant Vice President in April 1953 and was elected a Vice President of Monroe in December 1973. Mr. Grove retired, after 40 years of service to Monroe, in May 1974. In celebration of his milestone birthday he received birthday cards from a variety of Monroe offices, a fruit basket and an embroidered Monroe baseball cap. Last September Mr. Grove and his late wife Gertrude celebrated their 70th wedding anniversary. Unfortunately, Mrs. Grove passed away in February of this year at the age of 98.

Everyone at Monroe wishes Mr. Grove continued health and happiness.

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