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Mortgages on Tenancy by the Entireties Properties
The rights of a mortgagee with respect to property held by a married couple as tenants by the entirety engenders considerable confusion, sometimes leading to litigation even of easy cases, where there should be no dispute. The Second Department confronted such a case last year in Deutsche Bank Nation Trust Co. v. Feliciano, NYLJ 4/19/13, p. 33, col. 1. Unfortunately, not every case is so easy, and the treatment of mortgagee rights in the New York courts has been cryptic at best.
The Feliciano Case
In Feliciano, the subject property was owned by John and Sheila Ellerbee as tenants by the entirety. Five years after the Ellerbees acquired the property, John transferred his interest in the property to Jalloop Corp. Two years later, Sheila and Jalloop together transferred the property to Feliciano, who then mortgaged the property and, after executing the mortgage, transferred a 99% interest back to John and Sheila, as husband and wife, retaining a 1% interest for himself. When Feliciano defaulted on the mortgage, the mortgagee's assignee foreclosed. Sheila moved to dismiss, contending that the tenancy by the entirety created when she and John originally took title had never been terminated. Supreme Court denied her motion.
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Turning Business Development Plans Into Reality
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