Federal Natl. Mtge. Assn. v Campbell

[*1] Federal Natl. Mtge. Assn. v Campbell 2011 NY Slip Op 52155(U) Decided on December 1, 2011 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2011
Supreme Court, Queens County

Federal National Mortgage Association, Plaintiff,

against

John Campbell et al., Defendant.



18791/1983



For the Plaintiff:

Law Offices of Perry Ian Tischler, P.C., by Perry Ian Tischler, Esq., 38-39 Bell Boulevard, Bayside, New York 11361

For the State of New York:

Hon. Eric T. Schneiderman, Attorney General of New York State, by Michael Sullivan, Esq., Senior Attorney, 120 Broadway, New York, New York 10271

Charles J. Markey, J.

Plaintiff obtained a judgment of foreclosure and sale dated May 18, 1984, against defendant John Campbell, as the record owner of the real property known as 133-23 129th Street, South Ozone Park, in Queens County, New York. According to the report dated August 14, [*2]1984, a referee was appointed pursuant to the judgment, and the property was sold on July 6, 1984. Stanley A. Black and Elsie E. Black were the successful bidders at the sale, having bid the sum of $53,000.00. The report also indicates the Referee executed and delivered a deed to Stanley A. Black and Elsie E. Black. The report sets forth the amounts paid by the Referee out of the proceeds of the sale and indicates that a surplus in the amount of $15,011.90 remained as of August 14, 1984, after the payment of the Referee's fee and all listed costs and disbursements.

It appears that the surplus was deposited with the Queens County Clerk, who, in turn, deposited the surplus with the Treasurer of the City of New York. In April, 1990, the New York City Commissioner of Finance paid to the State Comptroller, as abandoned property, the sum of $22,103.52, the then balance of moneys deposited (see, Abandoned Property Law §§ 600[1][a] & 602; see, NYCTL 1996-1 Trust v Nuthree Inc., 18 Misc 3d 603, 604 [Sup Ct Bronx County 2007]).

Counsel for Atlantis asserts Atlantis is a "domestic corporation" (see, note 2, infra), purportedly in the business of locating unclaimed assets and recovering them on behalf of their owner, earning a fee as a percentage of recovery. He also asserts that Atlantis entered into an asset recovery agreement dated February 17, 2011 (the Agreement) with John Campbell to recover approximately $22,535.11, plus accrued interest, in exchange for a fee in the amount of 15% of the value of any recovery, and Campbell signed a document designated as a "LIMITED POWER OF ATTORNEY," dated March 2, 2011, which appointed Atlantis as attorney-in-fact to seek full recovery of the surplus moneys on deposit as a result of the foreclosure sale.

Counsel states that Atlantis, in turn, retained him to take steps to assist it in recovering the surplus moneys, and that he filed a notice of claim to the surplus on March 9, 2011, on behalf of Campbell, as the former owner of the subject premises and owner of the equity of redemption prior to the foreclosure sale. Atlantis asserts that all liens filed prior to the commencement of the action expired in 1993, ten years after they were recorded against the real property, and all judgments are presumed to have been satisfied by virtue of the passage of 20 years. It also asserts that the mortgage on the property given to defendant Frances Connolly by defendant Campbell no longer has any legal effect because enforcement is barred by the six-year Statute of Limitations applicable to foreclosure actions.

Michael Connolly, the son of defendant Frances Connolly, now deceased,[FN1] was issued letters testamentary by the Suffolk County, Surrogate's Court, on March 5, 2007, appointing him executor of the Estate of Frances Connolly. Mr. Connolly, appearing pro se and as executor of the Estate of Frances Connolly, opposes the motion, asserting that John Campbell gave his decedent a mortgage against the subject property, to secure a note evidencing a loan in the principal amount of $30,000.00, plus interest. [*3]

According to Mr. Connolly, the Connolly mortgage was second in priority to the subject mortgage, and remains unpaid. Defendant Frances Connolly appeared in the foreclosure action by counsel, who filed a notice of claim to the surplus on her behalf on December 19, 1984. Mr. Connolly contends that the claim filed by his decedent takes priority over the claim filed on behalf of claimant Campbell vis-a-vis the surplus.

The Office of the State Comptroller, appearing by the Attorney General, appears in relation to the motion, and does not explicitly oppose the relief requested or cross move for any relief pursuant to a notice of cross motion. Rather, the Office of the State Comptroller requests that the Court make findings, in connection with its ruling on the motion by Atlantis, as to whether claimant Campbell is the same person named as a defendant in the foreclosure action, and whether the notice requirements as set forth in Abandoned Property Law section 1406 and Real Property Actions and Proceedings Law section 1361 have been satisfied. See this Court's discussion in Federal National Mortgage Association v Isaiah, 33 Misc 3d 1222(A), 2011 WL 5528967, 2011 NY Slip Op 52049(U) [Sup Ct Queens County 2011] [decision by the undersigned] [citing authorities]; Greenpoint Bank v Criscione, 23 Misc 3d 1106(A), 2009 WL 940113, 2009 NY Slip Op 50604(U) [Sup Ct Kings County 2009]; NYCTL 1996-1 Trust v Nuthree Inc., 18 Misc 3d 603 [Sup Ct Bronx County 2007]; see, e.g., Conte v Venuti, 231 App Div 735 [2nd Dept. 1930]; Wachovia Equity Servicing LLC v Rodriguez, 32 Misc 3d 1245(A), 2011 WL 4375063, 2011 NY Slip Op 51711(U) [Sup Ct Bronx County 2011]; Wells Fargo Bank Minnesota NA v Davis, 8 Misc 3d 561 [Sup Ct Kings County 2005]; see also, Raynor v Selmes, 52 NY 579, 7 Sickels 579 [1873].

The Office of the State Comptroller also requests that, in the event the Court finds that claimant Campbell and defendant Campbell are one and the same person and the motion has been made on proper notice, the Court should limit the finder's fee to 15% of the amount recovered and direct the Comptroller to pay only claimant Campbell.

Atlantis has failed to demonstrate that it has authority to act on behalf of claimant Campbell. The durable, limited power of attorney, grants "Atlantis Asset Recovery LLC" (emphasis supplied) as opposed to Atlantis, authority to act as John Campbell's agent. Likewise, the Agreement is with "Atlantis Asset Recovery LLC " [FN2] (emphasis supplied) - - not Atlantis.

Under such circumstances, the motion is denied without prejudice to a motion to confirm the Referee's report of sale and distribution of the surplus by Atlantis Asset Recovery LLC on behalf of claimant Campbell, or by any other claimant, including John Campbell or Michael Connolly, as executor of the Estate of Frances Connolly. [*4]

Accordingly, the motion is denied without prejudice to renew upon proper service on all necessary parties. See the undersigned's recent decision in Federal National Mortgage Association v Isaiah, 33 Misc 3d 1222(A), 2011 WL 5528967, 2011 NY Slip Op 52049(U), supra.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

December 1, 2011 Footnotes

Footnote 1: Frances Connolly died on January 10, 2007, after the issuance of the judgment of foreclosure and sale.

Footnote 2:Atlantis Asset Recovery LLC is described in the Agreement as a "domestic company." The abbreviation "LLC" in an entity's name indicates the entity is a limited liability company (see, Limited Liability Company Law § 204[a]), as distinguished from a domestic business corporation (see, Limited Liability Company Law § 204[b][2]; Business Corporation Law § 301[a][1]).