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.

The firm successfully represented grantee at tax foreclosure sale against motion by Chapter 7 liquidating trustee to vacate deed as violative of the automatic stay. 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 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.

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 Alta policy denied. The title underwriter bears the burden to demonstrate the facts come wholly within the policy exclusion. Fact issues precluded summary judgment.