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Real Property Law

By ALM Staff | Law Journal Newsletters |
October 06, 2005

Writ Of Assistance Upheld As to Non-Parties in Foreclosure Action

Citibank, N.A. v. Plagakis

NYLJ 8/15/05, p. 32, col. 1

AppDiv, Second Dept

(memorandum opinion)

In an action to foreclose a mortgage, defendants and non-parties appealed from Supreme Court's grant of a writ of assistance and denial of a motion to vacate the writ of assistance. The Appellate Division affirmed, holding that the writ of assistance was appropriate even as to persons who were not named parties in the original foreclosure action.

Mortgagee Citibank brought this foreclosure action against its mortgagor, Plagakis, who defaulted in answering the complaint. Supreme Court issued a judgment of foreclosure and conducted a sale, at which Chang was the purchaser. Before Citibank brought the action, however, Plagakis conveyed the premises to Bouzas, who in turn leased the property to Siferis and Athanasiadis for a 5-year term concluding Dec. 31, 2005. Citibank did not name Siferis or Athanasiadis as defendants in the original action, although Chang did join Athanasiadis as a party defendant in January 2004. In July 2004, the court denied Siferis' motion for leave to intervene.

Citibank obtained a judgment declaring the deed from Plagakis to Bouzas a fraudulent conveyance, and then obtained a writ of assistance directing the removal of Bouzas and Athanasiadis, and placing Chang in possession. Bouzas, Athanasiadis, and Siferis appealed, contending that due process prevented issuance of a writ of assistance against a non-party to the original action.

In affirming, the Appellate Division labeled the circumstances of the case unique, and noted that because the deed to Bouzas had been set aside as fraudulent before he leased the premises to Siferis and Athanasiadis, he was not an agent lawfully authorized to enter into the lease. The court also emphasized that the leases to Siferis and Athanasiadis were for 5-year terms, and because they were not recorded, they were void as a matter of law with respect to Chang. In light of the readily apparent lack of legitimacy of the claims by non-parties, the court rejected the claim that the writ of assistance was issued in violation of the due process rights of non-parties to the foreclosure action.

Writ Of Assistance Upheld As to Non-Parties in Foreclosure Action

Citibank, N.A. v. Plagakis

NYLJ 8/15/05, p. 32, col. 1

AppDiv, Second Dept

(memorandum opinion)

In an action to foreclose a mortgage, defendants and non-parties appealed from Supreme Court's grant of a writ of assistance and denial of a motion to vacate the writ of assistance. The Appellate Division affirmed, holding that the writ of assistance was appropriate even as to persons who were not named parties in the original foreclosure action.

Mortgagee Citibank brought this foreclosure action against its mortgagor, Plagakis, who defaulted in answering the complaint. Supreme Court issued a judgment of foreclosure and conducted a sale, at which Chang was the purchaser. Before Citibank brought the action, however, Plagakis conveyed the premises to Bouzas, who in turn leased the property to Siferis and Athanasiadis for a 5-year term concluding Dec. 31, 2005. Citibank did not name Siferis or Athanasiadis as defendants in the original action, although Chang did join Athanasiadis as a party defendant in January 2004. In July 2004, the court denied Siferis' motion for leave to intervene.

Citibank obtained a judgment declaring the deed from Plagakis to Bouzas a fraudulent conveyance, and then obtained a writ of assistance directing the removal of Bouzas and Athanasiadis, and placing Chang in possession. Bouzas, Athanasiadis, and Siferis appealed, contending that due process prevented issuance of a writ of assistance against a non-party to the original action.

In affirming, the Appellate Division labeled the circumstances of the case unique, and noted that because the deed to Bouzas had been set aside as fraudulent before he leased the premises to Siferis and Athanasiadis, he was not an agent lawfully authorized to enter into the lease. The court also emphasized that the leases to Siferis and Athanasiadis were for 5-year terms, and because they were not recorded, they were void as a matter of law with respect to Chang. In light of the readily apparent lack of legitimacy of the claims by non-parties, the court rejected the claim that the writ of assistance was issued in violation of the due process rights of non-parties to the foreclosure action.

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