Real Property Law ยง 266 "Pursuant to Real Property Law ยง 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller'" (Fischer vSadov Realty Corp. , 34 AD3d 630, 631 [2d Dept 2006], quoting, Karan vHoskins , 22 AD3d 638 [2d Dept 2005]). However, "[o]ne cannot be a bona fide encumbrancer for value through a forged deed, as it is void and conveys no title" ( LaSalle Bank National Assoc. v Ally, 39 AD3d 597, 600 [2d Dept 2007]; see also, Karan v Hoskins, 22 AD3d at 639; Yin Wu v Wu, 288 AD2d 104, 105 [1st Dept 2001] ("Real Property Law ยง 266 applies to fraud situations that are voidable, not those which are void such as here where a forged deed is alleged"); Public Administrator v Samerson, 298 AD2d 512, 513 [2d Dept 2002]).
We affirm. Pursuant to Real Property Law ยง 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller (see Anderson v. Blood, 152 N.Y. 285, 46 N.E. 493 ; Karan v. Hoskins, 22 A.D.3d 638, 639, 803 N.Y.S.2d 666 ). However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title (see Marden v. Dorthy, 160 N.Y. 39, 54 N.E. 726 ; Public Adm'r of Kings County v. Samerson, 298 A.D.2d 512, 514, 750 N.Y.S.2d 301 ).
Pursuant to Real Property Law ยง 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller ( see Anderson v. Blood, 152 N.Y. 285, 46 N.E. 493; Karan v. Hoskins, 22 A.D.3d 638, 639, 803 N.Y.S.2d 666). However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title ( see Marden v. Dorthy, 160 N.Y. 39, 54 N.E. 726; Public Adm'r of Kings County v. Samerson, 298 A.D.2d 512, 514, 750 N.Y.S.2d 301).
The effect of the invalidity of a deed depends on whether the particular defect invalidating the deed renders it absolutely null and void or merely voidable (43A NYJur2d "Deeds" ยง218). If a deed is void, then neither the grantee nor any subsequent grantees can acquire good title, even if bona fide purchasers (LaSalle Bank Nat. Assn. v Ally, 39 AD3d 597 [2d Dept 2007]; Karen v Hoskins, 22 AD3d 638 [2d Dept 2005]). If, on the other hand, the deed is voidable, it validly transfers the grantor's interest until set aside (Marden v Dorthy, 160 NY 39 [1899]).
The effect of the invalidity of a deed depends on whether the particular defect invalidating the deed renders it absolutely null and void or merely voidable (43A NYJur2d โDeedsโ ยง 218 ). If a deed is void, then neither the grantee nor any subsequent grantees can acquire good title, even if bona fide purchasers (LaSalle Bank Nat. Assn. v. Ally, 39 AD3d 597 [2d Dept 2007] ; Karen v. Hoskins, 22 AD3d 638 [2d Dept 2005] ). If, on the other hand, the deed is voidable, it validly transfers the grantor's interest until set aside (Marden v. Dorthy, 160 N.Y. 39 [1899] ).
"Pursuant to Real Property Law ยง266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller." (Fisher v Sadov Realty Corp., 34 AD3d 630, 631 [2d Dept 2006] [quoting Karan v Hoskins, 22 AD3d 638, 638-39 (2d Dept 2005)].) "[I]f a purchaser or encumbrancer knows facts that would excite the suspicion of an ordinarily prudent person and fails to investigate, the purchaser or encumbrancer will be chargeable with that knowledge which a reasonable inquiry, as suggested by the facts, would have revealed."
โPursuant to Real Property Law ยง 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller.โ (Fisher v. Sadov Realty Corp., 34 AD3d 630, 631 [2d Dept 2006] [quoting Karan v. Hoskins, 22 AD3d 638, 638โ39 (2d Dept 2005) ].) โ[I]f a purchaser or encumbrancer knows facts that would excite the suspicion of an ordinarily prudent person and fails to investigate, the purchaser or encumbrancer will be chargeable with that knowledge which a reasonable inquiry, as suggested by the facts, would have revealed.โ
Bawa's fifth, thirteenth, fourteenth fifteenth, seventeenth and twenty-first affirmative defenses, and Guarantee's fifth, fourteenth, and fifteenth affirmative defenses allege, or turn on whether Bawa and Guarantee may be deemed bona fide purchasers/encumbrancers for value. When these defenses are considered in the context of the complaint (Krantz v Garmise, 13 AD2d426,429 [1961]), which indicates thatBawa and Guarantee paidvaluable consideration and contains no allegations that they participated in any fraud of Blake or Spencer or were otherwise connected to them, there is a basis to infer that Bawa and Guarantee were bona fide purchasers for value (see Maiorano v Garson, 65 AD3d 1300, 1302 [2009]; Karan v Hoskins, 22 AD3d 638 [2005]). While plaintiff is correct that one cannot be a bona fide purchaser for value through a forged deed because such a deed is void and conveys no title (see First Natl. Bank of Nev. v Williams, 74 AD3d 740, 741 [2010]; Karan, 22 AD3d at 639; Yin Wu v Wu, 288 AD2d 104,105 [2001]), plaintiff may be unable to demonstrate that the deed was forged (see Banco Popular North America v Victory Taxi Mgt., Inc., 1 NY3d 381, 384 [2004]).
blished that the remedy of recision of a deed and a concomitant cancellation of a mortgage issued on the premises conveyed by such deed at the time of such conveyance is available to a claimant in cases wherein it is established that such deed was either forged, obtained under false pretenses (fraud in the factum) or fraudulently induced ( seeEuba v Euba, 40 AD3d 689, 835 NYS2d 688 [2d Dept 2007]; Betzv N.Y.C. Premiere Prop., Inc., 38 AD3d 815, 833 NYS2d 153 [2d Dept 2007]; Cruz v Cruz, 37 AD3d 754, 832 NYS2d 217 [2d Dept 2007]). Consequently, a victim of a mortgage rescue scam that results in a conveyance of said victim's home which is immediately encumbered by a purchase money mortgage issued in connection with such conveyance may have a defense to a mortgage foreclosure action commenced by the purchase money mortgagee or its assignee against the mortgagor who either forged or fraudulently induced the conveyance ( seeGMAC Mtg. Corp. v Chan, 56 AD2d 521, 867 NYS2d 204 [2d Dept 2008]; Karan v Hoskins, 22 AD3d 638, 803 NYS2d 666 [2d Dept 2005]); Watson v Melnikoff, 19 Misc 3d 1130 (A), 866 NYS2d 96 [Kings County, Supreme Ct., Demarest, J., 2008]). Forged deeds and/or encumbrances or those executed under false pretenses which constitute fraud in the factum are void ab intio ( seeMarden v Dorthy, 160 NY 39, 54 NE 726; GMAC Mtg. Corp. v Chan, 56 AD2d 521, supra; Cruz v Cruz, 37 AD3d 754, supra).
Although Real Property Law ยง266 states that a bona fide purchaser or encumbrancer for value such as HCI purports to be, is protected in his or her title/lien unless he or she is chargeable with notice of the alleged prior fraud by the seller or mortgagor (seeFischer v Sadov Realty Corp., 34 AD3d 630, 631; Karan v Hoskins, 22 AD3d 638, 639). However, "[o]ne cannot be[come] a bona fide encumbrancer for value through a forged deed, as it is void and conveys no title" (LaSalle Bank National Assn. v Ally, 39 AD3d 597, 600).