Opinion
04-12-2017
Diana DERAMO, etc., appellant, v. Angelo LAFFEY, et al., defendants, Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2, et al., respondents.
Joseph Edward Brady, P.C., Howard Beach, NY, (Robert G. Bombara of counsel), for appellant. Locke Lord LLP, New York, NY (R. James DeRose III and William Foley of counsel), for respondent Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2.
Joseph Edward Brady, P.C., Howard Beach, NY, (Robert G. Bombara of counsel), for appellant.
Locke Lord LLP, New York, NY (R. James DeRose III and William Foley of counsel), for respondent Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.
In an action, inter alia, for a judgment declaring that a deed dated June 27, 2005, is null and void, the plaintiff appeals from an order of the Supreme Court, Queens County (Grays, J.), dated September 22, 2014, which granted the motion of the defendant Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2 for summary judgment dismissing the complaint insofar as asserted against it, and denied her cross motion, in effect, for summary judgment declaring that the deed dated June 27, 2005, is null and void, setting aside that deed and deeds dated September 10, 2007, and August 25, 2010, respectively, and setting aside certain mortgages, and to impose a sanction against the defendant Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the motion of the defendant Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2 for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying the motion, and (2) by deleting the provision thereof denying that branch of the plaintiff's cross motion which was, in effect, for summary judgment declaring that the deed dated June 27, 2005, is null and void, setting aside that deed and deeds dated September 10, 2007, and August 25, 2010, respectively, and setting aside certain mortgages, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed, with costs to the plaintiff payable by the defendant Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that the deed dated June 27, 2005, is null and void.
This case involves an allegedly forged deed dated June 27, 2005 (hereinafter the subject deed), purportedly conveying real property from Diana Deramo and Nicholas Deramo to the defendant Angelo Laffey. In November 2005, and again in January 2007, Laffey obtained loans secured by mortgages on the subject property. The second mortgage was given to the defendant Argent Mortgage Company, LLC, which subsequently assigned it to the defendant Wells Fargo Bank, N.A. as Trustee, on behalf of the Holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 2007–HE2 Asset Backed Pass–Through Certificates, Series AMQ 2007–HE2 (hereinafter Wells Fargo). By deed dated September 10, 2007, Laffey conveyed the property to his wife, the defendant Anneli Karu–Laffey. After Laffey defaulted on the loan secured by the second mortgage, Wells Fargo commenced a foreclosure action. Following issuance of a judgment of foreclosure and sale, the property was sold to Wells Fargo. Title was conveyed to Wells Fargo by referee's deed dated August 25, 2010.
Thereafter, Diana Deramo, individually, and as proposed executrix of the estate of Nicholas Deramo, deceased, commenced this action seeking, inter alia, to set aside the subject deed and the mortgages based on that deed. In the verified complaint, the plaintiff alleged that Nicholas Deramo died on August 28, 2003, almost two years prior to the date of the subject deed, and that Diana Deramo did not sign that deed.
Wells Fargo moved for summary judgment dismissing the complaint insofar as asserted against it, arguing, inter alia, that the instant plenary action was a collateral attack on the judgment of foreclosure and sale, and that vacatur of the judgment of foreclosure and sale could only be obtained by way of a motion to vacate the judgment of foreclosure and sale in the foreclosure action pursuant to CPLR 5015(a) (see Indymac Bank, F.S.B. v. Vincoli, 105 A.D.3d 704, 706, 962 N.Y.S.2d 624 ; Egloff v. Town of Lewisboro, 89 A.D.3d 792, 932 N.Y.S.2d 151 ). The plaintiff cross-moved, in effect, for summary judgment declaring that the deed dated June 27, 2005, is null and void, setting aside that deed and the deeds dated September 10, 2007, and August 25, 2010, respectively, and setting aside the mortgages given by Laffey, and to impose a sanction against Wells Fargo. The Supreme Court granted Wells Fargo's motion and denied the plaintiff's cross motion. The plaintiff appeals.
RPAPL 1501(1) provides that any person who "claims an estate or interest in real property" may "maintain an action against any other person ... to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, ... the defendant might make." A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Matter of Marini, 119 A.D.3d 584, 585, 989 N.Y.S.2d 487 ; Jiles v. Archer, 116 A.D.3d 664, 666, 983 N.Y.S.2d 283 ; ABN AMRO Mtge. Group, Inc. v. Stephens, 91 A.D.3d 801, 803, 939 N.Y.S.2d 70 ; First Natl. Bank of Nev. v. Williams, 74 A.D.3d 740, 742, 904 N.Y.S.2d 707 ; GMAC Mtge. Corp. v. Chan, 56 A.D.3d 521, 522, 867 N.Y.S.2d 204 ; Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 ).
Contrary to Wells Fargo's contention, the plaintiff, who, like the decedent, was not a defendant in the foreclosure action (cf. Indymac Bank, F.S.B. v. Vincoli, 105 A.D.3d at 705, 962 N.Y.S.2d 624 ; Egloff v. Town of Lewisboro, 89 A.D.3d at 793, 932 N.Y.S.2d 151 ), properly commenced the instant action (see RPAPL 1501[1] ; see also Jamison v. Aquai, 128 A.D.3d 775, 776, 10 N.Y.S.3d 119 ; Jiles v. Archer, 116 A.D.3d at 664, 983 N.Y.S.2d 283 ; Pouncy v. Dudley, 27 A.D.3d 633, 814 N.Y.S.2d 641 ).
Wells Fargo otherwise failed to carry its prima facie burden on its motion by demonstrating the absence of a triable issue of fact as to whether the subject deed was valid (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; cf. Valenzano v. Valenzano, 98 A.D.3d 661, 950 N.Y.S.2d 150 ; Loughman v. Loughman, 85 A.D.3d 1129, 926 N.Y.S.2d 145 ). Accordingly, the Supreme Court erred in granting Wells Fargo's motion.
The plaintiff established, prima facie, her entitlement to judgment as a matter of law by submitting, inter alia, the death certificate of Nicholas Deramo, the complaint, which was verified by the plaintiff (see CPLR 105 [u] ), and the affidavit of notary Gayna T. Nakajo, who averred that the signature appearing on the subject deed was not Nakajo's signature and was a forgery (cf. CPLR 4538 ). In opposition, Wells Fargo failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Accordingly, the Supreme Court should have granted that branch of the plaintiff's cross motion which was, in effect, for summary judgment declaring that the subject deed is null and void, setting aside that deed and the deeds dated September 10, 2007, and August 25, 2010, respectively, and setting aside the subject mortgages (see Jiles v. Archer, 116 A.D.3d at 665–667, 983 N.Y.S.2d 283 ; Neuman v. Neumann, 109 A.D.3d 886, 888, 971 N.Y.S.2d 322 ; Bank of N.Y. v. Spadafora, 92 A.D.3d 629, 630–631, 938 N.Y.S.2d 200 ; Cruz v. Cruz, 37 A.D.3d at 754, 832 N.Y.S.2d 217 ; Chand v. Steuben Hill Mgt. Corp., 20 A.D.3d 443, 444–445, 798 N.Y.S.2d 521 ).
The plaintiff's remaining contention is without merit.
Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment, inter alia, declaring that the subject deed is null and void (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 ; 5706 Fifth Ave., LLC v. Louzieh, 108 A.D.3d 589, 969 N.Y.S.2d 141 ; Beshara v. Beshara, 51 A.D.3d 837, 838, 858 N.Y.S.2d 351 ; Chand v. Steuben Hill Mgt. Corp., 20 A.D.3d at 445, 798 N.Y.S.2d 521 ; Meade v. JD Venture Capital, LLC, 38 A.D.3d 858, 859, 832 N.Y.S.2d 665 ).