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Defendant Appeals Judgment from Foreclosure Proceeding


A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant, a house loan corporation, one of several defendants, moves the court for an order dismissing the complaint as against it. Plaintiffs oppose Countrywide’s motion and cross-move for summary judgment dismissing Countrywide’s answer, or, in the alternative, striking Countrywide’s fourth and seventh affirmative defenses.

A Nassau County Estate attorney said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by an individual who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that the sole distributee and that the subject property vested in him immediately upon his sister’s death. The other then died testate on June 9, 1994. Th deceased was appointed the voluntary administrator of the estate.

A New York Will Lawyer said the court’s file contains the original will which devises and bequeaths all of his property to his cousin who died in August 2000. There was no deed executed from the estate of the first decedent to the second, nor was there a deed from the estate to the deceased executor. Although the original will was filed in the court incident to the voluntary administration of the estate of the second decedent, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the decedent, the administrators of his estate, and claim to be his only distributees.

Long Island Probate Lawyers said the underlying action by plaintiffs is to vacate the tax lien foreclosure sale, the deed by which the current owners of record, defendants obtained title, and the mortgage placed on the property by the defendant Countrywide incident to the purchase of the property by defendants. Plaintiffs contend that as the fee owners of the subject property at the time the foreclosure action was commenced, they were entitled to notice of the proceeding and the failure to provide that notice requires the vacating of the judgment in the foreclosure action and all subsequent deeds and mortgages.

Queens Probate Lawyers said the defendant Corporation now moves to dismiss the complaint as against it on the ground that it has not been established that plaintiffs are the distributees and thus have no standing to bring the Supreme Court action; the court disagrees.

Plaintiffs were appointed the administrators of the estate by decree of this court and letters of administration issued to them in November 2002. “Letters granted by the court are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed or modified upon appeal or the letters are suspended, modified or revoked by the court granting them”. The plaintiffs thus clearly have standing to commence and maintain the action in their capacities as the administrators of the estate.

The corporation also contends that plaintiffs have made claim to the surplus monies from the tax lien foreclosure sale and that they have therefore “ratified” the tax foreclosure sale they are seeking to vacate.

With regard to the plaintiffs’ cross-motion for summary judgment dismissing Corporation’s answer, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.

Here, plaintiffs have failed to establish that they are entitled to judgment, let alone judgment as a matter of law. Even assuming that either the plaintiffs, individually, or the estate were, at the time of the foreclosure action, the fee owners of the property, the issue is whether the notice given to the administrator of the estate of was “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”

Nassau County Administrative Code § 5-51.0 requires that notice be sent to, among others, “the occupant, owner in fee and the heirs, legal representatives and assigns of any of either of them appearing of record on the premises affected by such sale. The words appearing on record’ shall be construed to refer to any person on whom a notice is hereby required to be served, the nature and degree of whose interest appears from the records kept by the County Clerk, County Treasurer, Surrogate of the County and receiver of taxes for the town or city in which the property is located.”

The plaintiffs have also cross-moved to dismiss the corporation’s fourth affirmative defense to the extent that the plaintiffs’ claim to the surplus monies be deemed a ratification of the foreclosure sale. As indicated above, the court concludes that their claim to the surplus monies does not constitute a ratification of the tax lien foreclosure sale and the cross-motion is therefore granted to that extent.

The plaintiffs have also cross-moved to dismiss Countrywide’s seventh affirmative defense that the plaintiffs do not have standing to prosecute this action. The court has already concluded that plaintiffs have standing, at least in their capacity as administrators of the estate to prosecute the action. To that extent, the motion is granted. It is denied with respect to whether plaintiffs have standing to prosecute the action in their individual capacities.

Sometimes, when a decedent died, the relationships of the heirs to one another were affected. This is because of the properties left by the decedent. Here in Stephen Bilkis and Associates, our Nassau County Estate attorneys will help you harmonize the strained relations between heirs. If a decedent left a will, you can also consult our Nassau County Probate lawyers, who will inform you of the steps to take in probate of the will. Call us now.

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