In re Stillwater Asset Backed Offshore Fund, Ltd.

 on March 26th, 2018

Chapter 7 liquidating trustee failed to state a claim to recover assets transferred by debtor on the basis of a fraudulent transfer where the asset had been transferred as pre-petition sale in exchange for promise of preferred stock in the purchaser to be issued in six months. Consequently the complaint did not plead a fraudulent transfer but rather a claim for breach of contract despite the purchaser’s failure to eventually issue the stock and the purchaser’s subsequent fraudulent transfer of its assets to third-parties. Moreover liquidating trustee’s claim that the asset sold by had been converted pre-petition by purchaser, that title therefore remained with the trustee and defendants were therefore liable for conversion of the assets, was dismissed. Complaint failed to state a fiduciary relation between debtor and the purchasers that would give rise to a conversion claim on behalf of the debtor.

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Greentree Servicing, LLC v. Feller

 on March 25th, 2018

Trial court denied motion to amend foreclosure complaint to assert equitable subrogation claim against the fee interest of the borrower’s spouse. Third Department reversed and granted leave to amend the complaint, holding that use of husband’s loan proceeds to satisfy prior mortgage of the husband and wife against marital residence stated a recognized claim of equitable subrogation and amendment should have been granted despite spouse’s claim she explicitly refused to sign the note and mortgage being foreclosed.

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In re Stillwater Asset Backed Offshore Fund,Ltd.

 on March 25th, 2018

Represented recipient of foreclosure deed in opening motion by Chapter 7 liquidating trustee to vacate as void a tax foreclosure deed tendered pursuant to a post petition foreclosure sale because it violated the automatic stay, was denied. Chapter 7 trustee claimed the property had been fraudulently transferred to a third-party prior to the petition date. Since the trustee had not actually recovered the property on behalf of the debtor as of the petition date, the property was not then part of the debtor’s estate. Consequently the automatic stay effective as of the petition date did not stay the tax foreclosure sale against the third-party occurring after the petition date. Moreover, since the tax foreclosure was not an action to recover a debt against the debtor, the sale was not stayed.

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Romeo and Juliette Laser Hair Removal, Inc v. Assara Laser 1, LLc.

 on November 26th, 2014

Action under the Lanham Act for trademark infringement and unfair competition. Motion to dismiss amended complaint denied. Amended complaint sufficient to state a Lanham Act claim and claim for preliminary injunction.

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R.P. Family v. Commonwealth Land Title Insurance Company

 on November 26th, 2014

Action by insured fee owner to recover damages based on title policy. Underwriter’s motion for summary judgment based on 3(a) exclusion in the policy, denied. The title underwriter bears the burden to demonstrate the facts come wholly within the policy exclusion. Fact issues precluded summary judgment.

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Stevens v. Communicare Properties, LLc

 on November 26th, 2014

Quiet title action by alleged grantor of forged deed recorded more than ten years prior to the commencement date. Motion to dismiss based on expiration of ten year statute of limitations denied. Forged deed was void and did not transfer fee interest. Actual owner presumed in possession of the premises and therefore the statute of limitations to commence quiet title never began to run.

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In Re Lowbet

 on November 26th, 2014

Corporate dissolution proceeding to rescind minority shareholder’s transfer of corporation’s principal asset consisting of real property as an unauthorized and for damages for fraud. Grantee asserted cross-claims against prior managing agent of the premises for indemnification of the purchase price and damages in the event the conveyance is rescinded. Motion to dismiss cross-claims for indemnification denied. Indemnification requires an independent duty to indemnitee. On a motion to dismiss it cannot be stated as a matter of law managing agent of the premises owed no duty to the contract vendee.

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In the matter of Joseph J.(Anonymous)

 on September 1st, 2013

Mortgagor’s guardian sought to consolidate the guardianship proceeding with mortgagee’s action to foreclose the mortgage and the guardian’s quiet title action to vacate the deed based on fraud and undue influence. The Appellate Division reversed the lower court’s order consolidating the three actions before the surrogates court. The mortgagor was declared incompetent after he granted the mortgage, after the foreclosure was commenced, and after he commeneced the quiet title. The foreclosure and quiet title actions therefore had no common questions of law and fact with the guardianship proceeding.

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Chicago Title Insurance Co., v. LaPierre

 on September 1st, 2013

Subrogation action by title underwriter under Executive Law Section 135 for notarial misconduct. Title underwriter sought to recover attorney’s fees expended on behalf of its insured to quiet the insured’s title after a deed on which the forged signature of the grantor was acknowledged by the defendant notary enabling the deed to be recorded. The lower court dismissed the action after trial holding the underwriter had to demonstrate its insured’s detrimental reliance on the forged signature to establish the notarial misconduct was causally related to injury. The firm appealed arguing executive law 5135 does not require detrimental reliance on the notary’s acts. The Appellate Division, Second Department, agreed reversing the trial court holding the causation element under Executive Law 135.

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Millennium BCPBank, N.A. v. Kal-Pak Realty, LLC

 on November 4th, 2012

The principal of mortgagor Kal-Pak forged his deceased father’s signature on the deed conveying title to Kal-Pak and thereby defrauded his siblings’ fee interests in the premises. Prior to commencement of the foreclosure, the principal of Kal-Pak assigned his interest in mortgagor Kal-Pak to the defrauded siblings in settlement of the siblings’ claims against him, and he agreed to continue  to make mortgage payments to lender bank. Following default on the note and commencement of the foreclosure, the mortgagor claimed it did not have valid title. Mortgagor moved for summary judgment declaring the deed void ab initio and dismissing the foreclosure. The court held that even if the deed were invalid, it was capable of being ratified by the mortgagor. Fact issues were presented whether the siblings’ acceptance of the assignment of ownership in mortgagor Kal-Pak with knowledge of the fraud was a ratification of the fraudulent acts.

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