New York  |  Real Estate Law

Legal Question

Asked on: 5/09/13, 2:11 pm

I posted "I have a lien on a property dating to 2006. A bank bought the mortgage to the property in 2012 and is foreclosing. They filed a complaint against me saying that they don't have to pay me anything unless there is money left over after the sale, after paying taxes, after their own expenses, etc., and even then it is their option whether to "share in surplus monies" with me. I assume that their lien is superior to mine, but shouldn't they be required to pay me before they get any surplus money? I need to file an answer and am not certain what to say."

2 Answers


Answered on: 5/09/13, 2:23 pm by David Slater

yes


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David P. Slater, Esq. 5154 Windsor Parke Dr. Boca Raton, FL 33496

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Answered on: 5/09/13, 2:32 pm by Kevin Connolly

I assume that a lien dating to 2006 is a docketed judgment or a mortgage, because mechanics' liens die off quickly. Mechanics lienors have special defenses.

You should ask to see the original mortgage note. If they don't have the original note, then they don't have standing to foreclose.

Surplus money is something the bank does not get to touch. Leftover $$ is paid into court and divvied up per the surplus money proceeding. Even if they prove standing, you can still challenge the amount they are claiming.

They have no option, the court decrees how much the mortgage lien is valued at.

I can help you prepare an answer at little cost. 516-242-1453.


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Kevin J. Connolly 30-06 36th Avenue Astoria, NY 11106

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