Heller, Hardy and Han Secure Win for Title Insurer

February 3, 2021 | Real Estate, Zoning & Land Use | Commercial Litigation | Insurance Coverage | Banking

Michael Heller, Tamika Hardy, and Lawrence Han successfully overturned the denial of a summary judgment motion in a motion for reargument and renewal. The Court had previously denied the client’s motion for summary judgment to strike the borrower’s answer, which was filed by our client via its foreclosure counsel, holding that there was a triable issue of fact as to what, if any, interest in the foreclosure property the defendant-borrower was able to encumber.

The defendant-borrower, who only held a life estate interest in the foreclosure property at the time of the loan, had signed both the note for the loan and the mortgage, but notably, the remainderman non-borrower had signed only the mortgage and not the note. In its initial denial, the Court had also found sua sponte that the mortgage was defective because, while it bore a notary stamp, it was missing the signature of the notary public.

The title insurance company thereafter retained the Firm on behalf of the client to address the Court’s findings regarding the defendant-borrower’s encumbrance on the mortgage property, as well as the allegedly defective mortgage. Working with the client’s foreclosure counsel, the Firm filed a motion to reargue and renew, presenting an affidavit from the notary public who had mistakenly not signed the mortgage, as well as highlighting the Court’s misapprehension of the law regarding the encumbrance on the property.

In granting the motion to renew, the Court held that the client was entitled for leave to renew and accepted the affidavit from the notary public, ultimately determining that the client had demonstrated sufficiently the validity of the notary certification through the affidavit. Concerning reargument, the Court conceded that it had overlooked the law with respect to the defendant-debtor’s status as a holder of a life estate and agreed that “nothing about the fact that the recipient of the loan and the mortgagor are not of the same person impairs the validity of an otherwise valid mortgage-secured loan transaction.”

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