Parol Evidence To Be Applied to Determine Description of Mortgaged Property

 

ThinkstockPhotos-910318874

The note and the mortgage being foreclosed by JPMorgan Chase Bank, National Association (“Chase”) referred only to tax lot 48, but the metes and bounds description attached to the mortgage encompassed tax lots 48 and 49. A mortgage later executed to Defendant E.R. Holdings, LLC (“Holdings”) was recorded as a second lien against tax lot 48 and a first lien against tax lot 49. Holdings asserted affirmative defenses and a counterclaim seeking a judgment declaring that its mortgage was a valid first mortgage lien on tax lot 49. The Supreme Court, Queens County, denied Chase’s motion for summary judgment on the complaint insofar as asserted against Holdings; it also dismissed Holding’s affirmative defenses and counterclaims. The Court found “that the plaintiff failed to establish, prima facie, that it was the original parties’ intent that the [mortgage held by Chase] cover both lots”. The Appellate Division, Second Department, affirmed the lower court’s denial of the branches of the plaintiff’s motion that were for summary judgment on the complaint as asserted against Holdings. According to the Appellate Division,

“…there is no rule that it is the metes and bounds description that determines what property is encumbered by any mortgage and not the street address or tax lot number. Rather, where, as here, there is a conflict between the metes and bounds description and the street address and/or tax lot numbers given in the mortgage, there is an ambiguity that requires consideration of parol evidence…In support of its motion for summary judgment, the plaintiff failed to submit evidence resolving that ambiguity one way or the other…[A] triable issue of fact remained regarding that issue”.

JPMorgan Chase Bank, N.A. v. Zhan Hua Cao, 2018 NY Slip Op 02603, decided April 18, 2018, is posted at

http://www.nycourts.gov/reporter/3dseries/2018/2018_02603.htm.

 

Meet Our NY Team

Mike Berey
By

Get the Latest News

Related posts

There are no related posts

Subscribe for Updates

Subscribe to First American's CRE Insider Blog for thoughtful posts from the frontlines of our dynamic industry and First American's efforts to improve the real estate transaction for all parties involved.

×