Foreclosuse Deceased Mortgagor
This week we wanted to bring your attention to an interesting decision out of the 2nd Department which addressed the issue as to whether the Estate of a Mortgagor was a “necessary party” defendant in a mortgage foreclosure action notwithstanding that the Complaint named the deceased Mortgagor’s sole heirs at law. The Supreme Court’s Order, in part, denied the Defendant’s motion for Summary Judgement to dismiss the Complaint for failure to name a necessary party.
In modifying the lower Court’s Order, the Appellate Division added a provision to the Order allowing Defendant to renew its motion for Summary Judgment once the Supreme Court determined whether the Estate was a “necessary party” under the specific circumstances and facts of this case.
The relevant facts of, as well as a link to, the case are set forth below.
A mortgage foreclosure commenced in 2009 named as defendants, among others, the heirs of the then deceased mortgagor. In 2020, grantees of the mortgaged property moved to intervene and, upon grant of their motion, for the complaint to be dismissed for the failure to join the Estate of the mortgagor as a necessary party. The Supreme Court, Kings County, granted leave to intervene but denied the branch of the motion to dismiss the complaint. The Appellate Division, Second Department, modified the lower court’s Order by adding a provision that the denial of the motion to dismiss was without prejudice to renew and remitted the case to the Supreme Court for a determination of whether a representative of the Estate could be summoned and, if not, whether the action could nevertheless proceed. According to the Appellate Division,
“[d]ismissal of an action for nonjoinder of a necessary party ‘is only a last resort’ [citations omitted]. When a necessary party has not been made a party and is ‘subject to the jurisdiction’ of the court, the proper remedy is not the dismissal of the complaint, but rather for the court to order that the necessary party be summoned [citations omitted]...In any event, when jurisdiction over an absent necessary party ‘can be obtained only by [that party’s] consent or appearance, the court, when justice requires, may allow the action to proceed without [that party]’, upon consideration of various enumerated factors (CPLR 1001[b]…].”
U.S. Bank Trust N.A. v. Germoso, 2023 NY Slip Op 02704, decided May 17, 2023, is posted at
https://www.nycourts.gov/reporter/3dseries/2023/2023_02704.htm
When you subscribe to the blog, we will send you an e-mail when there are new updates on the site so you wouldn't miss them.
About the author
Home Abstract Corp. has placed the information on this website as a service to the general public. Use of this website and the information contained thereon does not in any manner constitute legal advice from Home Abstract Corp. to the user. Nothing herein shall serve to create an attorney/client relationship between Home Abstract Corp. and the user. While the information on this site may concern legal issues, it is not intended as legal advice or as a substitute for the particularized advice of your own legal counsel. Anyone seeking specific legal advice or assistance concerning the information available on this website should retain their own attorney for such legal counsel.
This website could include inaccuracies or typographical errors. The materials on this website are not guaranteed to be correct, complete, or up‐to‐date after the date of posting. The articles and information on this website are provided AS-IS; without warranty of any kind, either express or implied.
Each individual document published by Home Abstract Corp. on this website may contain other proprietary notices and copyright information relating to that specific document. Home Abstract Corp. hereby authorizes you to view, store, print and copy any pages within this website solely for your personal information and use and not for resale, re-publication, or further on-line or mass distribution. In consideration of this authorization, you agree that (a) any copy of the information or documents which you make shall retain all copyright and other proprietary notices contained herein and (b) nothing on this website shall be reproduced, sold, or distributed to third parties on-line or by mass mailing without the express written consent of Home Abstract Corp.
Some links within the Home Abstract Corp. website may lead to other sites that we believe may be useful or informative. The Home Abstract Corp. website does not incorporate any materials appearing in such linked sites by reference. These links to third party sites or information are not intended as, and should not be interpreted by you as, constituting or implying our endorsement, sponsorship, or recommendation of the third-party information, products, or services found there. We do not maintain or control these sites and accordingly make no guarantee concerning the accuracy, reliability, or currency of the information found thereon.
