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Upon the foregoing papers, nonparty Geneva Alston, Administrator of the Estate of Mattie Dickens, moves by way of order to show cause for an order 1) cancelling the notice of pendency filed against the subject property on May 19, 2008 by plaintiff Citimortgage, Inc, successor in interest by merger to ABN AMRO Mortgage Group, Inc. and 2) permanently barring as a lien and discharging of record a certain mortgage on the property dated August 22, 2007 given to plaintiff’s predecessor-in-interest by defendant TM, notwithstanding a recorded satisfaction of same dated December 4, 2007.
The owner of the subject property located at 748 Decatur Street in Brooklyn, having taken sole title as tenant by the entirety following the death of her husband, Pearlie Dickens. On February 9, 2006, Mattie Dickens died. The following day, TM executed a deed whereby she purportedly conveyed, as the executor of the Estate of Mattie Dickens, title to the property to herself as grantee. On July 10, 2006, TM executed a mortgage on the property in favor of Fremont Investment & Loan (Fremont) to secure a loan in the amount of $250,000.00. On August 22, 2007, TM executed a mortgage on the property in favor of plaintiff’s predecessor, ABN AMRO Mortgage Group, Inc. to secure a loan in the amount of $340,000.00. According to the settlement statement for the August 22, 2007 mortgage transaction, proceeds totaling $251,237.66 were used to pay off the prior Fremont mortgage. On September 6, 2007, Mortgage Electronic Registration Systems, as nominee for Fremont, issued a satisfaction of the prior $250,000.00 mortgage. The satisfaction of the Fremont mortgage was recorded on September 17, 2007.
On December 4, 2007, plaintiff issued a satisfaction of its $340,000.00 mortgage, apparently in error. The satisfaction of plaintiff’s mortgage was recorded on December 11, 2007. On May 19, 2008, plaintiff filed a notice of pendency on the subject property and commenced the instant action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to vacate the December 4, 2007 satisfaction of mortgage and to restore its mortgage lien to its priority position nunc pro tunc.
On September 8, 2008, Alston commenced an action against TM pursuant to RPAPL article 15 to vacate and discharge of record the February 10, 2006 deed purportedly conveying title to TM. In her complaint, Alston alleged that she is the sister and next of kin of Mattie Dickens, that her interest in the property accrued upon the death of Mattie Dickens and that no will of Mattie Dickens has been probated in Kings County or elsewhere. Alston alleged that in light of the foregoing, TM had no power to convey the property as executor of Mattie Dickens’ estate and the February 10, 2006 deed should therefore be nullified and discharged of record. Despite the fact that it had previously filed a notice of pendency against the property, plaintiff was not named as a defendant in Alston’s action. On November 14, 2008, TM filed an answer to Alston’s complaint which contained general denials and no affirmative defenses. By judgment dated April 7, 2009, Alston was granted summary judgment on her complaint, the February 10, 2006 deed to TM was adjudged to be null and void, and the City Register was directed, upon presentation of a certified copy of the judgment, to cancel and discharge of record the February 10, 2006 deed.
That part of Alston’s motion for cancellation of the notice of pendency filed by plaintiff in this action is denied. Under CPLR 6501, a notice of pendency may be filed where “the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; the court’s analysis is to be limited to the pleading’s face. Generally, a lien affecting real estate, satisfied through mistake, may be restored to its original status and priority as a lien, provided that no one innocently relied upon the discharge and either purchased the property or made a loan thereon in reliance upon the validity of that satisfaction. In this matter, the ultimate relief demanded by plaintiff, to wit, the cancellation of the satisfaction and the resuscitation of its mortgage lien as of record, clearly would affect the title to the subject property. Indeed, absent the filing of a notice of pendency, plaintiff would run the risk of losing its potential mortgage lien to a bona fide purchaser. It was therefore proper for plaintiff to file the notice of pendency in this matter.
Under CPLR 6514, a motion by a defendant to cancel a properly filed notice of pendency may be granted under the following circumstances: (a) Mandatory cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a final judgment against the plaintiff has not been stayed pursuant to section 5519.
(b) Discretionary cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith.
Alston does not demonstrate that any of the above grounds are presently applicable to this matter.
Alston further seeks to bar plaintiff from asserting any mortgage lien against the property based on the April 7, 2009 judgment nullifying the deed to TM. Alston argues, in essence, that since TM was adjudged thereby to have never had a valid interest in the property, she had no power to execute the mortgage in favor of plaintiff’s predecessor. However, there is no dispute that Alston commenced her action subsequent to plaintiff’s filing of the notice of pendency in this action, yet failed to join plaintiff as a party defendant. Considerations of due process prohibit personally binding a party by the results of an action in which that party has never been afforded an opportunity to be heard. As plaintiff was not named as party in Alston’s action, plaintiff is not, as matter of due process, affected by the judgment rendered therein, and any mortgage it may have acquired cannot be voided as a lien against the property solely by reason of the judgment against TM.
There are several issues which, if presented in the Alston litigation, could have led to a finding that the mortgage signed by TM on August 22, 2007 constitutes a valid lien on the subject property. A putative mortgagor must have a mortgageable interest in the property sought to be charged as security (Boyarsky v Froccaro, 125 Misc 2d 352 [1984]). Therefore, any mortgage based on a deed which is forged or made under false pretenses is void ab initio as the purported grantee under the void deed was never vested with a mortgagable interest in the property (First Nat. Bank of Nevada v Williams, 74 AD3d 740 [2010];Filowick v Long, 201 AD2d 893 [1994]). The gravamen of Alston’s complaint is that TM had no authority as an executor to issue the February 10, 2006 deed to herself nor did TM have any other interest in the subject property as a relative or heir of Mattie Dickens. However, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death and not at the time of probate (Matter of Seviroli, 31 AD3d 452, 454 [2006];DiSanto v Wellcraft Mar. Corp., 149 AD2d 560, 562 [1989], appeal denied 75 NY2d 703 [1990]).
In opposition to Alston’s motion, plaintiff submits a copy of a purported last will and testament of Mattie Dickens, dated February 16, 2004, which provides, in part: THIRD: I direct my Executor to pay out of my estate as an expense of administration, without apportionment, all estate, death, transfer, succession, inheritance, legacy and similar taxes by whatever name called, including interest and penalties thereon, which may be assessed or imposed under the laws of any jurisdiction by reason of my death, upon or with respect to any property passing under this my last will and testament.
fourth: All the rest, residue and remainder of my property and estate, real, personal or mixed of whatever kind and nature, wherever the same may be situated or located, of which I may die seized or possessed or to which I may in any way be entitled at the time of my death, I give, devise and bequeath to my granddaughter Tameeka D. TM, residing at 748 Decatur Street, Brooklyn, New York.
Thus, there is a possible issue as to whether TM, despite any impropriety in her issuing an executor’s deed to herself, nonetheless acquired a mortgageable interest in the property as the testamentary beneficiary following the death of Mattie Dickens.
Moreover, there is no dispute that the funds secured by plaintiff’s mortgage were used to satisfy the prior Fremont mortgage in full. As it appears from the records of the City Register, the subject property was encumbered by a $40,000.00 mortgage in favor of Elsie B. Reznick at the time of Mattie Dickens’ death. This mortgage was satisfied as evidenced by satisfaction of mortgage dated July 15, 2006 and recorded September 12, 2006. According to the HUD-1 settlement statement generated for the Fremont mortgage transaction, the sum of $112,597.00 from the Fremont loan was disbursed to Bruce S. Reznick, P.C. The satisfaction of mortgage dated July 15, 2006 was issued by Merle L. Rickles and Bruce S. Reznick as the sole heirs at law of Elsie B. Reznick. Thus, an additional question exists as to whether, notwithstanding any infirmities in the title of TM, plaintiff’s lien may be equitably subrogated to the lien of Elsie B. Reznick to the extent of the amount of funds from the Fremont loan which were used to satisfy and discharge her mortgage (Surace v Stewart, 58 AD3d 715 [2009];LaSalle Bank Nat. Assn. v Ally, 39 AD3d 597 [2007]).
Accordingly, that part of Alston’s motion for an order discharging, cancelling or barring the assertion of any mortgage lien in favor of plaintiff is denied.
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