Opinion
November 24, 1998
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
A purchaser who defaults at a foreclosure sale is generally liable to the mortgagee for any deficiency between its bid and the amount obtained at a resale, and thus the deposit paid by the defaulting purchaser at the first sale could have been used towards eliminating any such deficiency (see, Matter of Bertino v. Kalmanash, 94 A.D.2d 794). That circumstance, however, did not eventuate here. The mortgagee's bidding in of the debt to purchase the mortgaged property at foreclosure constituted a satisfaction of the debt, and any amount it received in excess of the judgment is surplus that it is holding in trust for the mortgagor and any subordinate lien holders (see, Whitestone Sav. Loan Assn. v. Allstate Ins. Co., 28 N.Y.2d 332, 335; Davenport v. McChesney, 86 N.Y. 242; Polish Natl. Alliance v. White Eagle Hall Co., 98 A.D.2d 400, 407-408). To the extent that the "Terms of Sale" provide otherwise, they vary from the judgment of foreclosure, and are void (see, Albany Sav. Bank v. David Thum Realty, 97 A.D.2d 891). We have considered the mortgagor's other arguments and find them to be unavailing.
Concur — Rosenberger, J. P., Nardelli, Wallach and Rubin, JJ.