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Real Property Law
Equitable Mortgage Enjoys Priority over Mortgage Recorded After Filing of Notice of Pendency
Sharestates Investments, LLC v. Hercules NYLJ 12/27/19, p. 25, col. 6 AppDiv, Second Dept. (memorandum opinion)
In an action to foreclose an equitable mortgage, fee owner and the fee owner's mortgagee appealed from Supreme Court's award of summary judgment to holder of the equitable mortgage. The Appellate Division affirmed, holding that because the holder of the equitable mortgage filed the notice of pendency before the mortgagee recorded his mortgage, the equitable lien enjoyed priority.
Jones and Hercules, husband and wife, purchaser the subject property with funds withdrawn from Hercules' IOLA account. Those funds had been deposited in Hercules' account in connection with sale of another property in which Hercules, a lawyer, represented the seller. Jones and Hercules then executed a mortgage to mortgagee Julius. On Dec. 18, 2015, the owner of the funds misappropriated by Hercules brought an action to establish an equitable lien and, on the same day, filed a notice of pendency. Jones and Hercules had executed the mortgage to Julius on Nov. 24, 2015, but Julius did not record the mortgage until Jan. 12, 2016. In the equitable lien action, Supreme Court entered a default judgment against Jones and Hercules and awarded an equitable lien to the owner of the misappropriated funds. The owner of those funds then brought this action to foreclose the equitable lien, and Supreme Court granted the owner's summary judgment motion. Mortgagee Julius appealed.
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