Summary
holding that "[i]t has long been held that a mortgage is not valid and enforceable unless there is an underlying valid debt or obligation for which the mortgage is intended as security"
Summary of this case from New Century Mtge. Corp. v. McDonaldOpinion
Argued June 15, 1999
October 4, 1999
Appeal from so much of an order of the Supreme Court, Kings County (G. Aronin, J.).
ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
It has long been held that a mortgage is not valid and enforceable unless there is an underlying valid debt or obligation for which the mortgage is intended as security ( see, Beck v. Sheldon, 259 N.Y. 208; Baird v. Baird, 145 N.Y. 659; Haven Assocs. v. Donro Realty Corp., 149 A.D.2d 667; 9 Warren's Weed, New York Real Property, § 4.01[1] [4th ed]). After a hearing, the court refused to enforce the mortgage of Kenneth Schechter and Richard Aidekman because their own testimony revealed that the mortgage was not given as security for a valid debt. The hearing court's credibility determination is entitled to great weight on appeal ( see, Miale v. Miale, 258 A.D.2d 444 [2d Dept., Feb. 1, 1999]). Since it is amply supported by the record, it will not be disturbed ( see, Avco Mtge. Co. of N.Y. v. Ward, 225 A.D.2d 347; Leonard v. Grimes, 246 A.D.2d 630).
However, to reimburse Kenneth Schechter and Richard Aidekman for a $50,000 payment they made in order to delay the foreclosure sale in this action, the court properly found that they held an equitable lien on the property in the amount of $50,000 ( see, Great E. Bank v. Chang, 227 A.D.2d 589; Jacone v. DeRosa, 173 A.D.2d 525).
RITTER, J.P., THOMPSON, FEUERSTEIN, and SMITH, JJ., concur.