Opinion
380056/08
09-16-2011
Wachovia Equity Servicing LLC, etc., Plaintiff, v. Jose A. Rodriguez, et al., Defendants.
Pro Se Petitioner: Jose A. Rodriguez
Pro Se Petitioner: Jose A. Rodriguez
Jr., J.
The motion by pro se defendant, Jose A. Rodriguez, for an order directing the New York City Department of Finance to pay to claimant the surplus money on deposit related to this action, is denied without prejudice.
Defendant asserts that he was the previous owner of the property located at 311 Harding Park, Bronx, New York 10473, which was sold at a foreclosure sale after this court granted plaintiff's motion for a Judgment of Foreclosure and Sale on March 8, 2010. Defendant contends that he is entitled to the surplus money from the sale of the property as there are no other claims to any of the surplus money. In support of his motion, defendant submits a copy of the Judgment of Foreclosure and Sale, a copy of the receipt showing that a total of $42,919.59 in surplus money was deposited with the County Clerk of Bronx County, an original Certificate of No Exceptions, a copy of a Notice of Appearance/Claims List and a copy of the Referee's Report of Sale.
Although this court did not receive any papers in opposition to the instant motion, the motion is denied without prejudice.
RPAPL §1361(1) states, "Any person claiming the surplus moneys arising upon the sale of mortgaged premises, or any part thereof, either in his own name, or by his attorney, at any time before the confirmation of the report of the sale, may file with the clerk in whose office the report of sale is filed, a written notice of such claim, stating the nature and extent of his claim and the address of himself or his attorney."
RPAPL §1361(2) states, "On the motion for confirmation, or at any time within three months thereafter, on notice to all parties who have appeared in the action or filed claims, on motion of any party to the action, or any person who has filed a notice of claim on the surplus moneys, the court, by reference or otherwise, shall ascertain and report the amount due to him or any other person who has a lien on such surplus moneys, and the priority of the several liens thereon and order distribution of the surplus moneys."
In the case at bar, defendant Rodriguez moves to have the surplus moneys turned over to him. However, this court must first ascertain the amount due to him or any other person who has a lien on the surplus moneys and the priority of any liens and then order distribution of the surplus moneys. Defendant submits a copy of a Notice of Appearance/Claims List from the Bronx County Clerk's Office, indicating that the only defendants that have appeared in the instant action are: 29 Holding Corp.; NYS Workers Compensation Board; Commissioner of Agriculture and Markets of New York; and United States of America. Moreover, the Notice indicates that no Notices of Claim for surplus monies was filed in this action.
However, there were numerous defendants named in the instant action. Even though only a few have appeared in this action, pursuant to RPAPL §1361(3), "The owner of the equity of redemption, or any party who has appeared in this action or any person who files a notice of claim or who has a recorded lien against the property shall be given notice by mail or in such other manner as the court shall direct, to attend any hearing on disposition of surplus money." In, Riverhead Savings Bank v. Nicholas C. Garone et al., 183 AD2d 760 (2nd Dept. 1992), the court ruled that a party claiming to have " a recorded lien against the [subject] property'...may have entitled it to notice of the impending hearing on [the] disposition of surplus money', notwithstanding its having defaulted in the underlying foreclosure action..." (citations omitted). Id. at 761-762.
In the case at bar, defendant Rodriguez has failed to show whether or not any of the numerous defendants named in this action have a recorded lien against the subject property. If another party has a recorded lien against the property, then, pursuant to RPAPL §1361(3), that party is entitled to notice of any hearing on disposition of surplus money. That notice is required even if the party defaulted in the underlying foreclosure action. In Shankman v. Horoshko, 291 AD2d 441 (2nd Dept. 2002), the court ruled that, " Surplus money *** stands in the place of the land for all purposes of distribution among persons having vested interest or liens upon the land'..." (citations omitted). Id. at 442. The court further went on to state that, "...a referee may inquire into and determine all questions of law and fact, usury, fraud or the like, and every question tending to show the equities of the claimant, to the end that it may be decided in such proceedings finally and on the merits to whom such surplus money belong..."(citations omitted). Id. In the case at bar, defendant moved to have the surplus moneys turned over to him and did not request that this court appoint a referee to ascertain the priority of any liens and distribution of the surplus moneys.
Accordingly, the motion by defendant Rodriguez for an order directing the New York City Department of Finance to pay over to him the surplus moneys related to this action is denied without prejudice and with leave to re-file a motion to appoint a referee to ascertain and report the amount due to defendant Rodriguez or any other person who has a lien on the surplus moneys, the priority of the liens and distribution of the surplus moneys, on notice to any party who has a recorded lien against the property in accordance with RPAPL §1361(3).
This constitutes the decision and order of this court.
J.S.C.