Plotch v US Bank Natl. Assn.
Annotate this CaseDecided on March 26, 2013
Supreme Court, Richmond County
Adam Plotch, Plaintiff,
against
US Bank National Association as Trustee For WFALT 2005-2, Defendant.
102239/12
Thomas P. Aliotta, J.
The following papers numbered 1 to were marked fully submitted on this 31st day of
January, 2013.
PapersNumbered
Defendant's Notice of Motion for Summary Judgment,
with Supporting Papers
(dated December 11, 2012)..................................................................................... 1
Plaintiff's Affirmation in Opposition
(dated January 17, 2013).......................................................................................... 2
Defendant's Reply Affirmation
(dated January 30, 2013).......................................................................................... 3
_________________________________________________________________________________
Upon the foregoing papers, defendant's motion for summary judgment is granted in accordance herewith.
This action was commenced by plaintiff Adam Plotch (hereinafter "plaintiff") pursuant to Real Property Actions and Proceedings Law §§1501 and 1503, to compel the determination of a claim to certain real property located at 850 Howard Avenue, Staten Island, New York. Said premises, i.e., a condominium unit, was sold to plaintiff, the highest bidder at a public auction, on October 6, 2010, pursuant to a Judgment of Foreclosure and Sale dated July 6, 2010 in an action to foreclose a condominium common charge lien recorded in the Richmond County Clerk's Office on February 19, 2009. That action was entitled Board of Managers of City West Condominium I v. Paakwesi Ashon (Index No. 130914/2009). The court-appointed referee conveyed the subject premises to [*2]plaintiff by Referee's Deed dated January 25, 2011.
Insofar as it appears on the papers before the Court, defendant's predecessor-in-interest (Wells Fargo Bank, N.A.) held a purchase money mortgage dated May 28, 2004 (mortgage No.1) from the prior owner of the subject property (Paakwesi Ashon) as security for a loan in the amount of $136,990.00. On or about July 14, 2005, a second mortgage was given to Wells Fargo Bank, N.A. by Paakwesi Ashon (mortgage #2) to secure a further loan in the amount of $31,313.61. Simultaneously therewith, the parties executed a "Consolidation, Extension and Modification Agreement" dated July 14, 2005, wherein the parties agreed, inter alia, to "combine [the foregoing] notes and mortgages...so that under the law Lender has one mortgage and [borrower has] one loan obligation".
In this action, plaintiff seeks a declaration that the second mortgage dated July 14, 2005 is extinguished and foreclosed pursuant to the Judgment of Foreclosure and Sale dated July 6, 2010, and that defendant is barred from all claims to an estate or interest in the subject property to the extent of that second mortgage in the amount of $31,313.61. In support, plaintiff relies upon Real Property Law §339-z, which provides that a board of managers shall have a lien on each unit for the unpaid common charges "prior to all other liens except ... all sums unpaid on a first mortgage of record [emphasis added]". In reliance upon Societe Generalev Charles & Company Acquisition, Inc. (157 Misc 2d 643), plaintiff argues that (1) the condominium board's lien for unpaid common charges has priority over the second mortgage even though the former was recorded subsequent to the recording of the second mortgage, and (2) the Consolidation, Extension and Modification Agreement dated July 14, 2005 does not change the priority of liens held by those not parties to that agreement. Thus, plaintiff maintains that that defendant is barred from claiming an interest in the subject property predicated on the second mortgage.
In moving for summary judgment, defendant maintains that the consolidated mortgage in its entirety, i.e., the first and second mortgages, constitutes a "first mortgage" lien, as a matter of law, within the meaning of Real Property Law §339-z. In support, defendant points out that the "Notice Under the Condominium Act for Unpaid Common Charges" was not recorded by the Board of Managers until February 19, 2009, approximately 2.5 years after the consolidated mortgage was recorded. Defendant also points out that it was not a party to the subject action to foreclose the condominium's lien, and that its joinder was not necessary since its mortgage lien, as a matter of law, was superior to the lien for unpaid common charges and could not have been extinguished thereby. Finally, defendant correctly argues that the Consolidation Agreement at issue here clearly and unequivocally states that the parties intended the consolidation of the first and second mortgage to result in one mortgage and one loan obligation, which defendant's predecessor-in-interest duly recorded.
It is well established that a consolidation and extension agreement cannot adversely affect the priorities of any lien that has intervened between the date of the original mortgage and the consolidation agreement (see Federal Deposit Ins. Corp. v Five Star Mgt., 258 AD2d 15, 22-23). In the case at bar, it is not alleged that the lien for unpaid common charges existed at that time the first and second mortgages were consolidated "into a single lien upon the property" and recorded. As such, it cannot be said that the [*3]subject Consolidation, Extension and Modification Agreement dated July 14, 2005 interfered with the Board of Managers' prior rights.
Moreover, the Referee's Deed dated January 25, 2011, specifically provides, in pertinent part, that said conveyance to Adam Plotch was "[s]ubject to a prior mortgage recorded in the Richmond County Clerk's Office on September 8, 2006, held by Wells Fargo Bank, N.A. [defendant's predecessor-in-interest], having an initial balance of One Hundred Sixty-Six Thousand Five Hundred Dollars ($166,500.00) plus interest from July 14, 2006".
In view of the foregoing, it is the Court's opinion that the consolidated mortgages must be treated as a "first mortgage" lien under Real Property Law §339-z which was unaffected by the Judgment of Foreclosure and Sale in the condominium lien foreclosure action.
Accordingly, it is
ORDERED, that defendant's motion for summary judgment is granted and the complaint is hereby dismissed; and it is further
ORDERED, that defendant's counterclaim for a judgment declaring that the consolidated mortgage in the amount of $166,500.00 recorded on September 8, 2006 as Document No. 149721 is a "first mortgage lien" for purposes of Real Property Law §339-z is granted; and it is further
ORDERED, that the Clerk enter judgment accordingly.
E N T E R,
Dated: March 26, 2013__/s/__________________________
Hon. Thomas P. Aliotta
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
