Mortgage Lenders Network USA, Inc. v Martinez

[*1] Mortgage Lenders Network USA, Inc. v Martinez 2006 NY Slip Op 50728(U) [11 Misc 3d 1086(A)] Decided on March 30, 2006 Supreme Court, Bronx County Saks, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2006
Supreme Court, Bronx County

Mortgage Lenders Network USA, Inc., Plaintiff,

against

Blanca Martinez et. al., Defendants.



49221/02

Alan J. Saks, J.

Application by Jose Rodriguez pursuant to RPAPL §1355 et. seq. regarding surplus monies arising out of the foreclosure sale of the subject premises, submitted on default, is denied.

The foreclosure sale of the subject premises netted $74,157.30 in surplus monies. Mr. Rodriguez is the sole claimant of record to the surplus. His claim is for the value of labor and materials allegedly furnished by him to renovate the premises. On August 23, 2002, he filed a Mechanic's Lien against the premises for $148,878.91. He submits no evidence that an action to foreclose the mechanic's lien or an action on the debt was ever commenced or that the lien was extended either by the County Clerk or court order. Assuming that those events did not occur, the lien expired by operation of law after August 23, 2003, before the foreclosure sale had occurred. Lien Law §17. Moreover, the purported lien was not valid in the first place, because, as he admits he did not possess a valid New York City Department of Consumer Affairs Home Improvement Contractor's license. Because Mr. Rodriguez never possessed an enforceable lien against the property, NYC Admin. Code §20-387, or even an enforceable claim of debt for the labor and materials furnished, CPLR §3015(e), he does not possess an enforceable claim against the surplus monies. The surplus money fund is not a general asset of the former owner. It stands in place of the realty, and only those with vested interests in the property prior to foreclosure sale may assert claims to the fund. Roosevelt Savings Bank v, Goldberg, 118 Misc 2d 220. Moreover, even if he had initially possessed a valid mechanic's lien, its expiration would have rendered claimant a mere unsecured creditor. A person in that category may not seek surplus monies. Sadow v. Poskin Realty Corp., 63 Misc 2d 499.

Additionally, the Court notes that during the course of the foreclosure action a Guardian Ad-Litem for unknown heirs was appointed. The instant application was not served upon the former Guardian, nor has a successor been appointed. However, even if the Guardian had been served, the motion would still have been denied for the above stated reason.

A copy hereof is being sent to the Office of the Public Administrator, Bronx County, to take such steps deemed advisable to protect the interest of those same unknown heirs. [*2]

The foregoing shall constitute the decision and order of the Court.

Dated: March 30, 2006

ALAN J. SAKS, J.S.C.